Joint Opinion 12-84/12-95(B)-(G)
June 14, 2012
Digest: (1) A judicial candidate must not be a speaker, guest of honor, or award recipient at a politically sponsored event, unless either (a) the event is not a fund-raiser, or (b) the candidate’s participation is unannounced prior to the event. (2) To the extent legally permissible, a judicial candidate may use campaign funds to attend bar association functions or other events that are not hosted by political organizations throughout his/her window period, provided that his/her attendance is in furtherance of his/her campaign for judicial office and the candidate determines that he/she will receive fair value for the expenditure. (3) A judicial candidate may list the name of a sitting judge as a reference for a political party’s screening panel but must not ask a sitting judge to write the panel directly on the candidate’s behalf. (4) A judicial candidate may permit other individuals to attend his/her fund-raiser without charge, regardless of whether such individuals are currently seeking election to public office. (5) A judicial candidate may include a link from his/her campaign website to a political organization’s website which contains information promoting the judicial candidate’s campaign.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(ii); 100.5(A)(1); 100.5(A)(1)(i)-(ii); 100.5(A)(1)(c)-(i); 100.5(A)(2); 100.5(A)(2)(i), (iii); 100.5(A)(4)(a), (c); 100.5(A)(5); 100.5(A)(6); 100.6(A); 22 NYCRR 101; 22 NYCRR 1200.8.2(b); Opinions 11-136; 11-64; 10-80; Joint Opinion 09-59/09-86; Opinions 08-160; 08-151; 08-64; 07-135; 07-130; 07-09; 05-104; 04-141; 03-51; 01-99 (Vol. XX); 01-27 (Vol. XIX); 95-161 (Vol. XIV); 94-15 (Vol. XII); 93-52 (Vol. XI); 92-29 (Vol. IX); 91-94 (Vol. VIII); 91-02 (Vol. VII); 89-125 (Vol. IV); 2004 Ann Rep of NY Commn on Jud Conduct, at 153; 2001 Ann Rep of NY Commn on Jud Conduct, at 28.
Opinion:
In this Opinion, the Committee considers several recurring and significant questions that the Judicial Campaign Ethics Subcommittee has received from multiple judicial candidates about their campaign conduct.
The Rules Governing Judicial Conduct
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and must not engage in any direct or indirect political activity except as specifically authorized by law or by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1][I]). For example, a judge ordinarily may not attend a political gathering (see 22 NYCRR 100.5[A][1][g]) or purchase tickets to a politically sponsored event, even for a non-political purpose (see 22 NYCRR 100.5[A][1][i]).
A non-judge who is seeking election to judicial office is subject to applicable provisions of the Rules Governing Judicial Conduct throughout the course of his/her campaign (see 22 NYCRR 100.6[A]; cf. also 22 NYCRR 1200.8.2[b]).1
A judge or non-judge candidate for elective judicial office may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, a candidate for judicial office may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]); may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); and may not make speeches on behalf of another candidate (see 22 NYCRR 100.5[A][1][f]). Judicial candidates also may not make contributions to other candidates (see 22 NYCRR 100.5[A][1][h]) or personally solicit funds for any political organization or candidate (see id.; see also 22 NYCRR 100.5[A][2]; 100.5[A][5]).2 A judicial candidate must not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][4][c]; cf. 22 NYCRR 100.5[A][1] [prohibiting all judicial candidates from “directly or indirectly engag[ing]” in unauthorized political activity]).
Question 1. Speaker or Guest of Honor at Political Events
In Inquiry 12-95(B), a recently elected judge within his/her post-election window period asks whether he/she may attend a politically sponsored fund-raising event and accept a service award at the event. The judge states that his/her name would not be used in any solicitation for the event. In Inquiry 12-95(C), a judge who is currently within his/her window period for another judicial office asks whether he/she may be one of several advertised speakers at a politically sponsored luncheon which is not a fund-raiser,3 and the judge will speak solely about his/her own qualifications and candidacy at the event.
The Committee has previously advised that a judicial candidate may not be a speaker, guest of honor, or recipient of an award at a politically sponsored fund-raising event (see Opinions 07-09; 03-51; 01-27 [Vol. XIX]).4 In Opinion 01-27 (Vol. XIX), the Committee advised that if a judicial candidate accepted an award from a political party at the party’s annual fund-raising dinner, or if the judge were a guest of honor at the event, the candidate “would be permitting his or her name to be used in connection with the fund-raising activity of a political organization” (id.; see also 22 NYCRR 100.5[A][1][d]). In Opinion 03-51, the Committee similarly advised that if a judicial candidate accepted an award at a Congressperson’s fund-raiser, it “would appear to implicate [him/her] in the Congress[person]’s own campaign” (id.; see also 22 NYCRR 100.5[A][1][d]).
In Opinion 07-09, a judicial candidate asked whether he/she could “be honored” and “speak at” a fund-raising event sponsored by a political organization. The Committee again advised that a candidate may not be a speaker, guest of honor, or award recipient at a politically sponsored fund-raiser, but also advised that the candidate may “provide a ‘few words of acknowledgment’ when he/she is introduced as a candidate” (Opinion 07-09; see also Opinion 04-141 [offering a similar analysis in the context of charitable fund-raisers]).
In Inquiry 12-95(B), the inquirer’s participation as a speaker will not be announced in advance of the political fund-raising event. In the Committee’s view, this distinction warrants a different result from the Committee’s prior opinions cited above.5 If a judicial candidate’s participation as a speaker or award recipient is not announced prior to a political fund-raising event, the candidate’s name and participation is not being used to draw attendees to the event. Thus, there is little, if any risk that the public will conclude that the candidate is permitting his/her name to be used in, or is otherwise implicated in, the fund-raising efforts (compare Opinions 03-51; 01-27 [Vol. XIX]). In serving as an unannounced speaker at a political fund-raiser during his/her window period, a judicial candidate may speak on behalf of his/her own campaign (see 22 NYCRR 100.5[A][2][i]) but must not endorse or oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]) and must not personally solicit funds (see 22 NYCRR 100.5[A][1][h]).
Inquiry 12-95(C) raises the question of whether a judicial candidate who is currently within his/her window period may be an advertised speaker at a politically sponsored event that is not a fund-raiser. The Committee notes that judicial candidates may attend and speak to gatherings on their own behalf (see 22 NYCRR 100.5[A][2][i]) and may appear at such gatherings along with other candidates on their slate (see 22 NYCRR 100.5[A][2][iii]). Thus, the mere fact that the judicial candidate is advertised as a speaker or guest of honor at an event sponsored by a political organization does not, without more, violate the proscription against “permitting his or her name to be used in connection with any activity of a political organization” (22 NYCRR 100.5[A][1][d]) where, as here, the judicial candidate will be using the speaking opportunity to promote his/her own candidacy for judicial office.
Although advertising a judicial candidate’s participation (as speaker, guest of honor, or award recipient) could draw people to the political event, the fact that the event is not a fund-raiser minimizes the risk of a public perception that the judicial candidate’s name is being used to raise funds for other candidates or the sponsoring political party. Accordingly, there is no reason to prohibit judicial candidates from serving as advertised speakers at non-fund-raising political events, as long as the candidate’s remarks are consistent with the Rules Governing Judicial Conduct.
Question 2. Use of Campaign Funds to Attend Events That are not Hosted by Political Organizations
In Inquiry 12-84 and Inquiry 12-95(D), judicial candidates ask whether they may use campaign funds to attend a variety of events hosted by non-political sponsors, such as bar association dinners or golf tournaments, charitable and civic events, and judicial association dinners, throughout their window period, including the six month period following Election Day.
The Committee recognizes that judicial candidates need to attend a wide variety of events during their window period in order to connect with prospective voters, supporters, and campaign workers; to otherwise generate awareness of their qualifications and their candidacy; and to thank those who have helped their campaign efforts and/or those who voted for them. Thus, in the Committee’s view, judicial candidates may promote their candidacy at events hosted by non-political sponsors, including bar association events, where they are likely to find individuals who are interested in improving the administration of justice and, thus, may be willing to support - or who have supported - a judicial candidate’s current campaign in a variety of ways.
Campaign funds may be used to attend such events throughout the window period - including the six month period after Election Day - to the extent legally permissible, but only in furtherance of the candidate’s judicial campaign, including to express the candidate’s appreciation to voters and campaign workers (see e.g. Opinion 10-80 [candidate may use campaign funds to promote his/her candidacy by sponsoring a local softball team]). The Committee notes that a judicial candidate “may not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received” (22 NYCRR 100.5[A][6]). Thus, the candidate should only use campaign funds to attend such events if the candidate determines that he/she will receive fair value for the amount expended for the ticket within the context of his/her campaign, a judgment that the candidate him/herself is in the best position to determine (see id.). For example, the mere fact that a ticket price is higher than the sponsor’s actual per person event cost does not, in and of itself, constitute a violation of the fair value requirement.
The Committee notes that in September 2003, the Commission on Judicial Conduct characterized the use of $710 in campaign funds to attend six post-election, non-political functions as “unjustified,” without explaining its reasoning or citing any authority for that specific statement (see 2004 Ann Rep of NY Commn on Jud Conduct, at 153, 155-56).6 In the Committee’s view, there are valid reasons for a judicial candidate to continue to attend both political and non-political events even after the election, in support of the candidate’s recently concluded campaign. In particular, and especially relevant, voters are likely to expect a recently elected judge to attend events in the judge’s community post-election to personally thank voters for their support and campaign workers for their time, sacrifice and hard work. Thus, although a judicial candidate’s campaign committee may not simply donate to any organization or otherwise use campaign funds for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]; Opinions 08-151 [campaign funds must not be donated to civic or charitable organizations]; 92-29 [Vol. IX] [campaign funds must not be donated to a bar association]), they may be used to purchase tickets to, and attend, non-political events during the candidate’s post-election window period.
Question 3. Asking a Sitting Judge to Provide a Reference to a Political Party’s Screening Panel
In Inquiry 12-95(E), a judicial candidate inquires whether it is ethically permissible for him/her to ask a sitting judge to provide an oral or written reference on the candidate’s behalf directly to a political party’s judicial screening panel, absent the panel’s request.
A judicial candidate may appear before a political party’s screening panel (see Opinion 11-64). Therefore, candidates must be permitted to provide a party screening panel with the names of individuals “who can meaningfully assess the [candidate’s] qualifications, character and temperament” (id.); and, in the Committee’s view, the public can only benefit when such individuals are also “familiar with the legal system” (id.). Clearly, sitting judges are not only familiar with the legal system but are likely well-situated to observe conduct that is relevant to a potential judicial candidate’s qualifications, competence, character, and temperament. Thus, there is every reason to permit a judicial candidate to provide a political party’s screening panel with the names of sitting judges as references, if the candidate wishes to do so.
The Committee has advised that a sitting judge may respond to inquiries from an Independent Judicial Election Qualification Commission or a bar association judicial candidate evaluation committee about qualifications of candidates for elective judicial office (see Opinions 08-160; 07-130). Where the judge does not volunteer his/her opinion, but merely responds directly to a screening panel’s request, the Committee concluded that the judge’s comment “does not constitute a public endorsement of or opposition to the candidate, and does not otherwise constitute prohibited political activity” (Opinion 07-130).
In the Committee’s view, the same principles apply when a sitting judge responds to an inquiry from a political party’s screening panel concerning the qualifications of a particular judicial candidate. In responding to the request, the judge “should draw from his/her personal knowledge of the potential judicial candidate” and “should neither urge approval nor disapproval of a candidate” (Opinion 08-160). To avoid any appearance that the sitting judge is engaging in impermissible political activity, such as publicly endorsing or opposing a judicial candidate (see 22 NYCRR 100.5[A][1][e]), the judge’s comments should be made solely in response to a direct request from the party’s screening panel and should be addressed only to the requesting panel.
In light of these restrictions, the Committee concludes that a judicial candidate should not ask sitting judges to write to a political party’s screening panel but, instead, should give the panel names of sitting judges the candidate wishes the panel to contact (see generally 22 NYCRR 100.5[A][4][a] [a judicial candidate must act in a manner consistent with the impartiality, integrity and independence of judicial office]; Opinion 08-64 [a judicial candidate may not use quotations from letters of individuals who are subject to Section 100.5 in his/her judicial campaign]).
Question 4. Providing Free Admission to a Fund-Raising Event
In Inquiry 12-95(F), a judge who is within his/her window period for re-election states that certain local political leaders and non-judicial elected officials at the state and local level have agreed to serve on the “honorary committee” for the judge’s fund-raising event. Tickets to the judge’s fund-raiser are $500, and the judge asks whether he/she may permit members of the honorary committee to attend the event for free.
In the Committee’s view, there are many legitimate reasons why a judicial candidate may wish to invite some individuals to attend his/her fund-raiser without charge (a practice frequently referred to as providing complimentary admission or “comping”) in furtherance of his/her judicial campaign. For example, the candidate may be acting out of courtesy or friendship, or the candidate may hope that the individual’s presence at the fund-raiser will encourage others to attend, or attendees to contribute more generously to the candidate’s campaign. The Committee, therefore, concludes there is no ethical impediment to the long-standing practice of “comping” attendees to the candidate’s own fund-raiser, and the practice does not constitute a prohibited contribution for purposes of the Rules Governing Judicial Conduct, even if some of the “comped” individuals are currently running for election themselves (cf. 22 NYCRR 100.5[A][1][h]).7
Question 5. Linking to a Political Organization’s Website
In Inquiry 12-95(G), a judicial candidate asks whether his/her campaign website may link to the website of a political party that has endorsed the judge and includes the judge/candidate’s profile.
The Committee has previously advised that a judicial candidate may include links to published newspaper articles about him/herself on a campaign website, provided that nothing in the article is misleading and provided the article maintains the dignity of judicial office (see Opinion 07-135).
The Committee has not, however, previously issued an Opinion addressing whether a judicial candidate may include links to the websites of political organizations.
The Commission on Judicial Conduct publicly took a position on the subject approximately a decade ago. In the “Observations and Recommendations” section of its 2001 Annual Report, the Commission stated (see 2001 Ann Rep of NY Commn on Jud Conduct, at 28):
[S]ince the Rules prohibit a judicial candidate from participating in political activity other than his or her own campaign, it would violate the Rules for a judicial candidate’s web site to include electronic links to the web site of another candidate or a political organization. This is especially so since the judicial candidate would have no control over the content of the linked web site.
The Commission further noted that it had received a complaint about a judicial candidate who linked to a political website that automatically played a slideshow of candidate profiles (see id.).
Use of the internet, while certainly not unusual in 2001, has become almost inescapably routine to ever-increasing numbers of people over the past ten years.8 The Committee believes that internet users today are able to appreciate that when two websites are independently maintained and controlled by separate entities, a link from one website to the other does not make them into a single website. No special sophistication is required to understand that if website “A” links to website “B,” the owner of website “A” likely does not control the content of website “B” and does not necessarily agree with all statements appearing on website “B.” Nor is it reasonable to believe that the mere existence of such a link automatically incorporates website “B’s” content into site “A.”
A judicial candidate may appear in person or in media advertisements with other candidates on the same slate (see 22 NYCRR 100.5[A][2][iii]) and may campaign door-to-door with other candidates (see Opinion 91-94 [Vol. VIII]). A judicial candidate may identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]) and may solicit, accept and advertise the endorsement of political parties (cf. Opinion 93-52 [Vol. XI]). The Committee has also advised that a judicial candidate may allow a political party to issue joint campaign literature that lists the judicial candidate with other candidates for elective office (see Opinions 01-99 [Vol. XX]; 89-125 [Vol. IV]). Linking to a political party’s website is another way to achieve the same result.
Accordingly, the Committee concludes that a judicial candidate may link to the website of a political party that has endorsed him/her. This provides a way for the candidate to demonstrate that he/she in fact has obtained the party’s support. The candidate should be careful that the link is not presented in such a way that it appears to vouch for or adopt the content of the political party’s website (cf. Opinion 93-52 [Vol. XI]). And, the candidate’s own website, including the wording of any links, must be consistent with the Rules Governing Judicial Conduct.
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1 Although a non-judge judicial candidate is not subject to Sections 100.2 or 100.2(A), he/she must, among other things, maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][4][a]).
2 Any solicitation or acceptance of contributions for a judicial candidate’s campaign must be done during the window period by a committee of responsible persons appointed by the candidate (see 22 NYCRR 100.5[A][5]).
3 Although there is a modest charge for the luncheon, the judge states that the ticket price is intended only to cover expenses of the luncheon and not to raise funds (cf. Opinions 05-104 [judge may be honored at an educational foundation’s breakfast, even if there may be some small net sum which may benefit the sponsor, where “the stated intent of the event is to honor prominent graduates of the institution and not to raise funds”]; 95-161 [Vol. XIV] [looking to the “stated intent of the organization” as well as the surrounding circumstances in determining “whether the activity is or is not a fundraiser”]).
4 The Committee notes that a different analysis may apply if the judicial candidate is invited to a political party’s fund-raiser as part of the party’s entire local slate (compare Opinion 91-02 [Vol. VII] with Opinion 94-15 [Vol. XII]).
5Outside the political context, Section 100.4(C)(3)(b)(ii) provides that a judge “may not be a speaker or the guest of honor” at a not-for-profit organization’s fund-raising events, but it also provides an express exception to permit a judge to accept “an unadvertised award ancillary to such event” (id.). Although Section 100.4(C)(3)(b)(ii) does not apply to political events, the Committee believes that the rationale underlying the rule and the exception is not strictly limited to civic and charitable events.
6 The judge was admonished for four charges of campaign misconduct based on an agreed statement of facts. Charge I alleged that the judge transferred $19,415 from one judicial campaign to another. Charge II alleged that the judge retained $10,923 in unexpended campaign funds for “more than seven months after the window period ended” and then contributed the funds to a not-for-profit organization. Charge III alleged that the judge expended $19,949 in campaign funds on an induction reception and dinner for 250 guests. Charge IV alleged that the judge expended $710 in campaign funds to attend six post-election, non-political functions.
7 The Committee cannot comment on any legal questions that may be presented by this practice, including any possible reporting obligations under the Election Law or otherwise (see 22 NYCRR 101).
8 The Committee has implicitly recognized the increasing sophistication of internet users. For example, in Opinion 11-136, the Committee advised that a judge who is a director of a not-for-profit organization may permit his/her name to be listed along with the other directors on the organization’s website, even if the border of each page of the website contains links that solicit donations. And in Joint Opinion 09-59/09-86, the Committee overruled or modified Opinions from 2005 and earlier to advise that, subject to certain restrictions, a part-time judge who practices law may indicate his/her judicial title on the website of the law firm at which he/she practices.