Opinion 19-109

October 24, 2019

Digest:         A judicial candidate may pay his/her proportionate share of the actual expenses for a “petition signing party,” at which modest and reasonable refreshments are served, for the purpose of assembling registered voters to sign petitions, provided he/she concludes the campaign will receive fair value for the expenditure. However, the candidate must only circulate or request signatures on petitions as permitted by prior opinions.

Rules:          22 NYCRR 100.5(A)(1)(c)-(e), (h); 100.5(A)(2); 100.5(A)(6); 100.6(A); Opinions 18-167; 18-105; 15-145; 12-129(A)-(G); 10-101/11-01; 09-148; 02-64; 98-99.

Opinion:

        A candidate for election to Family Court asks if he/she may participate in a petition-signing party with other candidates for judicial and non-judicial office, where all hosting candidates would share the expenses for extremely modest and reasonable refreshments. The signing party would not be a fund-raiser but would be similar to a free meet-and-greet with the purpose of assembling voters to sign petitions.¹ A variety of individual and joint petitions, including those naming the judicial candidate, would be made available for signature at the event.

        A judge or non-judge candidate for elective judicial office “shall comply” with applicable sections of the Rules Governing Judicial Conduct in connection with his/her judicial campaign (22 NYCRR 100.6[A]). A judicial candidate may participate in his/her own campaign for elective judicial office during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][2]). For example, a judicial candidate may not pay an assessment to, or make a contribution to, a political organization or any other candidate (see 22 NYCRR 100.5[A][1][h]) and “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]). Nor may he/she publicly endorse any other candidates or participate in any other candidate’s campaign for any public office (see 22 NYCRR 100.5[A][1][c]-[e]).

        While this is a matter of first impression for us, we believe two lines of prior opinions provide important guidance. First, we have said a judicial candidate in his/her window period may hold a free “meet and greet” event at which modest and reasonable refreshments are served (see Opinion 12-129[A]-[G], Question 2 & fn 2 [candidate must be “guided by considerations of modesty and reasonableness in the provision of ordinary social hospitality”]). Indeed, he/she may pay his/her proportionate share of the actual expenses for such an event with four candidates for non-judicial office, where two of these candidates are invited as guests and will not share in the expenses, provided he/she concludes the campaign will receive fair value for the expenditure (see Opinion 18-167).

        Second, because passing petitions constitutes partisan political activity under the Rules (see Opinion 15-145), a candidate seeking election to any judicial office other than Supreme Court may only pass joint or individual petitions containing his/her own name (id.; see also Opinions 09-148; 02-64; 98-99).² As this candidate is seeking election to Family Court, he/she may further his/her own campaign by carrying joint and/or individual petitions that name him/her and requesting signatures on such petitions (see Opinion 15-145). By contrast, this candidate may not pass individual or joint petitions that do not contain his/her name as one of the candidates to be designated or nominated or otherwise request signatures for other candidates when the petition does not include his/her own name (see id. [citing prior opinions]; 22 NYCRR 100.5[A][1][c]-[e]).

        Here, we conclude a judicial candidate may participate in a free “petition signing party” with both judicial and nonjudicial candidates, in order to gather registered voters to sign petitions, and may pay his/her proportionate share of the actual expenses, including modest and reasonable refreshments. For example, if the judicial candidate and two members of his/her slate co-sponsor the event, the judicial candidate should not pay more than one-third of the expenses (e.g. Opinion 18-167).

        If there are individual or joint petitions at the event that do not contain the candidate’s name, the candidate must not request signatures for those petitions (see Opinion 15-145). He/she must only request signatures for individual or joint petitions bearing his/her own name (id.).³

        Finally, we recognize that the judicial candidate cannot necessarily control the conduct of third parties. If other candidates or party leaders choose to circulate the petitions of a few candidates who are not co-sponsoring the event, this does not render a judicial candidate’s participation impermissible, provided he/she concludes his/her own campaign will receive fair value for the expenditure (see Opinion 18-167; 22 NYCRR 100.5[A][6]).⁴

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¹ The proposed event affords candidates the opportunity to obtain numerous required signatures in a centralized location, likely helping increase safety and reduce inconvenience associated with passing petitions door-to-door in inclement weather.

²A candidate seeking election to Supreme Court may pass petitions for certain delegate candidates to further his/her own candidacy, as permitted by prior opinions (see Opinions 18-105; 10-101/11-01). The “special challenges of the Supreme Court nomination process” have resulted in “one narrow exception to the rule against publicly endorsing other candidates” (Opinion 18-105), and we have “cautiously provided guidance on the practical implications” on a case-by-case basis (id. [internal quotation marks omitted]). However, the exception permitting Supreme Court candidates to pass petitions for certain delegate candidates is inapplicable here, as this candidate is seeking election to Family Court.

³ Again, this candidate is seeking election to Family Court, not Supreme Court.

⁴ We anticipate that basic expenses such as room rental and refreshments are unlikely to be substantially affected if someone places an additional group of petitions on another candidate’s table.