Opinion 15-71

June 11, 2015

Digest:         A judicial candidate may, subject to certain limitations, participate in a pro-choice or pro-life advocacy organization’s interview process, answer questions during the interview, and, if offered, accept the organization’s endorsement.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1)(f); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 14-113; 12-129(A)-(G); 00-86; 93-64; 93-52; 93-25; 91-27/91-49; Republican Party of Minnesota v White, 536 US 765 (2002).

Opinion:

         The inquiring judge is in his/her window period for election/ re-election to judicial office, and has been invited by a not-for-profit advocacy organization¹ “to attend, participate and answer questions before their [screening] committee to determine if my view on their issue is consistent with and warrants their support and endorsement for my candidacy” in the upcoming election. The judge states the organization “falls on one side of the issue of abortion/choice, and therefore I am concerned that disclosing my position may in fact compromise my oath, as a judge, to be ‘unbiased, fair and impartial.’” The judge thus inquires “as to what extent, if any, I am permitted to participate in the interview process, disclose my position in relation to their platform, accept their endorsement, answer questions that may be presented to me which may, in fact, disclose my position on their issue.”

          A judge must 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]). A judge is prohibited from engaging either directly or indirectly in any political activity except as allowed by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). However, a judicial candidate, i.e., a judge or non-judge who is seeking public election to judicial office, may personally participate in his/her own judicial campaign during the designated window period, subject to certain limitats (see 22 NYCRR 100.0[A]; 100.0[Q]; 100.5[A][1][c]; 100.5[A][2]). For example, the campaign must be conducted consistent with the judiciary’s impartiality, integrity and independence (see 22 NYCRR 100.5[A][4][a]), and all campaign statements must be entirely truthful nor in any way misleading (see 22 NYCRR 100.5[A][4][d][iii]; Joint Opinion 12-129[A]-[G]). Also, a judicial candidate may not make pledges or promises of conduct in office at odds with the impartial performance of the duties of judicial office (see 22 NYCRR 100.5[A][4][d][i]), nor make improper promises about controversies, cases, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][ii]).

         The Committee has advised that accepting a political party’s nomination “does not necessarily require acceptance of that party’s goals, positions, or platform” (Opinion 00-86). Thus, merely because a political party is limited to the single issue suggested in the party’s name does not, itself, preclude a judicial candidate’s acceptance of the party’s endorsement or nomination (see Opinions 14-113 [Stop Common Core party]; 93-52 [Right to Life party]).

         Although the organization here is not a political party, it is nonetheless an entity that supports or opposes candidates who are seeking election to judicial office. Accordingly, the Committee concludes that the inquiring judicial candidate may, subject to certain limitations, participate in the organization’s interview process, answer questions during the interview, and, if offered, accept the organization’s endorsement, even where, as here, the organization “falls on one side of the issue of abortion/choice.”

         Specifically, the Committee believes the inquiring judicial candidate may express his/her own personal views on matters related to abortion during the interview process with the organization in question, provided the candidate does not make pledges or promises of conduct in office inconsistent with the impartial performance of the adjudicative duties of office, or improper commitments regarding cases, controversies, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][i]-[ii]; cf. Republican Party of Minnesota v White, 536 US 765 [2002]). If the inquiring candidate chooses to share his/her views on the subject of abortion in an interview with the advocacy organization, he/she should also make clear that he/she will decide all cases fairly and impartially and in accordance with governing law (see generally 22 NYCRR 100.3[B][1];100.5[A][4][a]).

         The candidate also may not agree to any unacceptable “conditions” to the endorsement or support, such as a request that the candidate decline endorsement by particular organizations or political parties (see generally Opinions 00-86; 93-64; 93-25; 91-27/91-49), or a request to make a pledge or promise of conduct in office inconsistent with the impartial performance of adjudicative duties (see 22 NYCRR 100.5[A][4][d][i]-[ii]).

         Finally, it is noted that, if the inquiring candidate believes the organization is attempting to pressure him/her into making an improper pledge or promise, the candidate may, if he/she wishes, direct the organization’s attention to Section 100.3(E)(1)(f), which would require disqualification in certain matters if the candidate acquiesced in the organization’s request.

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         ¹ The organization states on its website that it is a 501(c)(4) not-for-profit organization. It characterizes itself as “an advocacy group” in the area of abortion/choice, but unaffiliated with any political party.