Opinion 17-139

June 21, 2018

Digest:         (1) Where a slate advertisement makes direct or indirect pledges or promises on behalf of the slate which are unrelated to the faithful and impartial performance of adjudicative duties, the judicial candidate must not consent to their inclusion unless the advertisement makes clear that these statements reflect only the position of the candidates for non-judicial office. (2) Judicial candidates may state their subjective view of their qualifications relative to an opponent’s but must ensure the supporting statements are truthful and not misleading. (3) A non-incumbent judicial candidate must be careful not to imply he/she is an incumbent and, thus, must use words such as “for” or “elect” rather than merely stating his/her name and the position sought.

Rules:          22 NYCRR 100.0(Q); 100.3(B)(1); 100.3(B)(6); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 16-07; 13-137/13-152/13-153; 12-129(A)-(G); 12-114; 04-95; 03-28; 2015 Ann Rep of NY Commn on Jud Conduct at 22.

Opinion:

         A non-judge who is seeking election to a town justice position asks if he/she may participate in a proposed joint palm card with his/her local slate. The palm card refers to the slate as a “team” and promises, among other things, that the slate will “responsibly manage continuing growth and development” in the town and “be open and responsive to your input.” The palm card characterizes the judicial candidate as “[t]he more qualified candidate based on experience as an attorney [in a specified jurisdiction]; an extensive professional background, including as a CPA; and is more prepared to deal with the types of issues that will come before the Town Court as [the town] continues to grow.” Finally, the palm card identifies each candidate by name and position sought, without specifying whether or not the candidate is an incumbent. Thus, the inquiring candidate is listed as “[Name] / Town Justice.”

         In general, a judge or non-judge judicial candidate may personally participate in his/her own judicial campaign during the designated window period, subject to limitations (see 22 NYCRR 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 and not in any way misleading (see 22 NYCRR 100.5[A][4][d][iii]; Opinion 12-129[A]-[G]). Also, a judicial candidate may not make pledges or promises of conduct in office at odds with impartial performance of judicial duties (see 22 NYCRR 100.5[A][4][d][i]) nor make improper promises or commitments about controversies, cases, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][ii]).

Pledges and Promises on Behalf of the Slate

          A judicial candidate may participate in a slate advertisement that characterizes the slate as a “team” and urges voters to vote for particular row(s) on the ballot on which the slate appears (see Opinion 13-137/13-152/13-153). Although a judicial candidate must not endorse other candidates, he/she need not include a disclaimer to that effect (id.).

         With respect to the prohibition on impermissible pledges, promises, and commitments (see 22 NYCRR 100.5[A][4][d][i]-[ii]), we have advised that a judicial candidate may not promise to set up and fund a legal scholarship if elected, as this “is a pledge or promise entirely unrelated to the ‘faithful and impartial performance of judicial duties’ and thus impermissible” (Opinion 03-28). Nor may a candidate sign a political organization’s pledge to support and endorse all other candidates endorsed by the organization and to consult with it on any appointments when in public office (see Opinion 16-07). We have also advised that a judicial candidate must not promise to abolish the lawful and accepted practice of plea bargaining in criminal cases in his/her court if elected (see Opinion 04-95).

         Here, the proposed palm card promises, among other things, that the slate will “responsibly manage continuing growth and development” in the town and “be open and responsive to your input.” Such promises relate primarily to the exercise of legislative and/or executive functions, such as managing the town’s budget and approving or denying building permits, rather than the adjudication of cases, which must be done according to applicable law and rules of evidence (see e.g. 22 NYCRR 100.3[B][6] [judge must not “initiate, permit, or consider” impermissible ex parte communications]; 100.3[B][1] [judge must not “be swayed by partisan interests, public clamor or fear of criticism”]). Because the slate’s pledges or promises are unrelated to the faithful and impartial performance of judicial duties, the judicial candidate should not consent to their inclusion unless the palm card makes clear that these statements reflect only the position of the candidates for non-judicial office.

Comparison of Qualifications

         We have said “[d]istortions and misrepresentations have no place in campaigns for judicial office ... because judges are called upon to administer oaths and are ‘sworn to uphold the law and seek the truth’” (see Opinion 12-114 n1 [citations omitted]). A judicial candidate must therefore (Opinion 12-129[A]-[G]):

take steps to ensure the accuracy of the information he/she includes about any opponent, and make every effort to avoid misleading the public with mere speculation or innuendo. Moreover, any reference to an opponent must be made in a manner which maintains the dignity appropriate to judicial office.

         These same principles apply when a candidate wishes to compare his/her qualifications with those of an opponent. Accordingly, this candidate may state his/her subjective view of his/her qualifications relative to an opponent’s but must ensure the supporting statements are truthful and not misleading.

Description of Position Sought

         The Commission on Judicial Conduct has taken the position that “[a]ll judicial candidates should take steps to make certain that all of the literature, signs and ads that call for their election do not state or imply that they are incumbents of any office that they do not presently hold,” citing the following example:

John Doe

Family Court Judge

Election Day - November 3rd

(“Observations and Recommendations,” 2015 Ann Rep of NY Commn on Jud Conduct at 22).

         Because this judicial candidate is a non-judge, he/she must likewise be careful not to imply he/she is an incumbent (see generally 22 NYCRR 100.5[A][4][d][iii]; Opinion 12-114). Accordingly, he/she must use words such as “for” or “elect” rather than merely stating his/her name and the position sought.