Opinion 19-112
October 24, 2019
Digest: Judicial candidates must take particular care to ascertain the truth of all claims they make about their election opponents and make every effort to avoid misleading the public with mere speculation or innuendo. Thus, a candidate may not (1) unjustly characterize an election opponent’s prior removal from the ballot as an inability to “follow the law” and/or a “flagrant disregard for the law” or (2) present hypothetical scenarios incorrectly suggesting unfavorable litigation outcomes that can only result from a judge’s failure to “follow the law” or other judicial misconduct.
Rules: 22 NYCRR 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); 100.6(A); Opinions 12-129(A)-(G); 09-162; 01-98.
Opinion:
A candidate for elective judicial office wishes to use an election opponent’s prior removal from the ballot as the basis for a proposed campaign advertisement. Although petitions may be invalidated for many reasons, both legal and technical, and may even be invalidated due to no fault on the part of the candidate him/herself, the proposed advertisement characterizes the opponent’s invalidated petitions as revealing both a personal inability to “follow the law” and a “flagrant disregard for the law.” The proposed ad then asks voters to imagine several potential “disastrous outcomes in serious matters” if the opponent were elected and then “failed to follow the law.” The hypothetical scenarios depict several highly unfavorable litigation outcomes without taking into account either the current state of the law or a judge’s discretion in such cases based on the specific facts presented, and thus imply that unfavorable litigation outcomes can only result from a judge’s failure to “follow the law” or other judicial misconduct.
A judge or non-judge candidate for elective judicial office “shall comply” with applicable sections of the Rules Governing Judicial Conduct throughout his/her judicial campaign (22 NYCRR 100.6[A]). For example, a judicial candidate must maintain the dignity appropriate to judicial office and act in a manner consistent with judicial impartiality, integrity and independence (see 22 NYCRR 100.5[A][4][a]); and must “not knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent” (22 NYCRR 100.5[A][4][d][iii]).
A judicial candidate must “take particular care to ascertain the truth of all claims he/she makes about his/her opponents, and be careful not to create a false impression of an opponent’s record by omitting relevant facts” (Opinion 12-129[A]-[G]). In particular, “each candidate should 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” (id.). We have said a judicial candidate may comment on his/her opponent’s rating by an independent judicial qualifications commission, provided the comments are accurate and not misleading (see Opinion 09-162), and may also publicize that his/her opponent was publicly admonished by the State Commission on Judicial Conduct, if done in a way that maintains the dignity appropriate to judicial office (see Opinion 01-98).
In Opinion 12-129(A)-(G), a candidate noticed his/her incumbent opponent had handled less than one-third of the court’s caseload in a two-judge court. The candidate thus proposed to say it “is time we establish a fair distribution of the workload” of the court and pledge to do a “fair share” of the court’s work (id.). We noted the proposed statements, though based on statistics, could be improperly speculative and misleading. In particular, we observed (id. fn 5 [citations omitted]):
if there has been no published administrative or disciplinary determination that a judge is “shirking” his/her judicial duties, the inquiring candidate should carefully consider whether there may be other reasons for a seemingly imbalanced caseload in a particular court.
Here, a similar analysis applies. In our view, a judicial candidate may not characterize an election opponent’s prior removal from the ballot as a personal inability to “follow the law” and/or a “flagrant disregard for the law” unless he/she takes particular care to determine such statements are accurate rather than speculative or misleading. Critically, election petitions may be invalidated for many reasons, both legal and technical, and even without any fault on the part of the candidate him/herself (see Opinion 09-162 [discouraging speculation about the reason why an opponent’s name is not included on the list of candidates deemed “qualified” for a position]). We thus note that unfamiliarity with the Election Law on the part of a candidate or his/her supporters, although certainly unwise, does not always mean the candidate is unfamiliar with other areas of law more directly relevant to the office he/she seeks. Characterizing invalidation of an opponent’s petitions as evidence of a “flagrant disregard for the law” may also unfairly insinuate the opponent has engaged in election fraud.
Finally, building on its poorly established premise, the proposed advertisement describes several hypothetical scenarios and asks voters to imagine potential “disastrous outcomes in serious matters” if his/her opponent were elected and thereafter “failed to follow the law” in a wide variety of contexts unrelated to the validity of petitions under the Election Law. These scenarios are inherently speculative. And, because they do not take into account either the current state of the law or a judge’s discretion in such cases based on the specific facts before him/her, they unfairly and inaccurately imply that unfavorable litigation outcomes are evidence of judicial misconduct.
In sum, judicial candidates must take particular care to ascertain the truth of all claims they make about their election opponents and make every effort to avoid misleading the public with mere speculation or innuendo. We thus conclude a judicial candidate may not unjustly characterize an election opponent’s prior removal from the ballot as an inability to “follow the law” and/or a “flagrant disregard for the law” or present hypothetical scenarios in a manner that incorrectly suggests unfavorable litigation outcomes can only result from a judge’s failure to “follow the law” or other judicial misconduct.