Opinion 18-95

May 10, 2018

Digest:         A judicial candidate may not answer a political party’s questionnaire designed to elicit express and implied commitments that (a) are unrelated to the impartial performance of judicial duties and/or (b) would require him/her to engage in activities prohibited by the Rules Governing Judicial Conduct.

Rules:          22 NYCRR 100.0(Q); 100.3(B)(1); 100.4(C)(3)(b)(iii); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(2)(ii); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 18-08; 17-38; 16-07; 15-71; 12-129(A)-(G); 12-58; 07-109; 04-95; 03-38; 03-28; 00-33; 95-02; 93-22.

Opinion:

         An individual seeking election or re-election to judicial office asks if he/she may answer the 2018 Women’s Equality Party candidate questionnaire. The questionnaire asks 20 yes/no questions about whether the candidate (a) supports reproductive rights legislation; (b) supports legislation concerning pay equity and sexual harassment; (c) opposes attempts to limit federal programs; and (d) supports campaign finance, health education in public schools and other local and federal programs and legislation. Many questions very explicitly ask the candidate to say yes or no to a specific pledge or promise, such as:           •   “Will you publicly oppose any [U.S.] Supreme Court nominee who may threaten those protections [for women’s reproductive health decisions]?”

•   “Will you pledge to fight any attempts to roll back the reproductive protections afforded women by Roe v. Wade?”

•   “Would you commit to supporting state funding for planned Parenthood services should the federal government no longer allow any federal dollars to be used for its health care services? And would you vocally oppose any federal proposal that cuts federal funding for Planned Parenthood?”

•   “Will you oppose any attempts to limit [Social Security and Medicare] to reduce the federal deficit?”

•   “Will you fight back any attempts to repeal the [Affordable Care Act]?”

Candidates are expected to check off either yes or no for each question, without comment, although they may “provide additional narrative to these questions” on a separate page.

         In general, a judicial candidate may personally participate in his/her own judicial campaign during the designated window period, subjection 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]; Joint 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 about controversies, cases, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][ii]).

         Applying these principles, 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, too, we conclude that the candidate may not respond to this questionnaire as it seeks commitments that are inconsistent with and/or unrelated to the impartial performance of judicial duties. We note the party’s questionnaire does not in any way acknowledge a judge’s obligation to “decide all cases fairly and impartially and in accordance with governing law” (Opinion 15-71) and does not invite candidates to assert any caveats when responding to its yes/no questions.

         We further note that the candidate, if elected or re-elected, would not be ethically permitted to fulfill many, or perhaps most, of the express and implied promises the questionnaire elicits. For example, although a sitting judge may make recommendations to public and private fund-granting organizations on “projects and programs concerning the law, the legal system, and the administration of justice” (22 NYCRR 100.4[C][3][b][iii]), he/she generally may not publicly support increased or continued funding for other purposes (compare e.g. Opinions 12-58 [appropriations for a fire company]; 03-38 [ballot proposition to secure funding for a library]; 00-33 [library bond proposition]; 95-02 [appropriations for a public library] with Opinions 18-08 [appropriations for a problem-solving court]; 07-109 [bond measure for a new courthouse]). As another example, while a judge may be able to convey “facts personally known” concerning “the fitness of a nominee under consideration for an appointive [federal] judgeship” to the United States Senate Judiciary Committee (Opinion 93-22), a judge who publicly opposes a U.S. Supreme Court nominee based solely on the nominee’s views on abortion or other such controversial policy issues would likely be seen as engaging in partisan political activity (see 22 NYCRR 100.5[A][1] [a judge must not “directly or indirectly engage in any political activity” except as expressly permitted]; cf. Opinion 17-38 [a judge may not call a Senate Committee to express an opinion on a pending federal executive branch appointment]). Further, while a judge has an ethical obligation to adjudicate cases and controversies that are properly before him/her, without being “swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B][1]), the promise to fight for a particular side of a politically controversial issue is inconsistent with the role of a neutral arbiter and would insert the judge “unnecessarily into public controversy” (Opinion 17-38). Thus, the questionnaire is also impermissible to the extent it purports to require the candidate to engage in activities prohibited by the Rules Governing Judicial Conduct.

         The judicial candidate may, if he/she wishes, ask the party to circulate a questionnaire specifically tailored to judicial candidates and the impartial performance of adjudicative duties (cf. Opinion 15-71 [judicial candidate “may express his/her own personal views on matters related to abortion,” but “should make clear that he/she will decide all cases fairly and impartially and in accordance with governing law”]).