Opinion 19-119

October 24, 2019

Digest:         Where a political action committee’s endorsement is conditioned on the candidate’s pledge, promise or commitment (a) not to seek or accept a specified political party’s nomination and (b) to disregard the law by “unequivocally support[ing]” access to certain regulated medical procedures or devices “unimpeded by laws, restrictions, or regulations,” a judicial candidate must decline the entity’s endorsement. On these facts, the candidate also must not attend the entity’s fund-raiser featuring its endorsed candidates.

Rules:          22 NYCRR 100.3(E)(1)(f); 100.5(A)(2); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(ii); Opinions 18-95; 17-28; 15-71; 14-49; 13-189/14-02; 00-86; 93-64; 93-52; 93-25; 91-27/91-49.

Opinion:

         A candidate for election to judicial office asks about accepting an endorsement from the ____ Coalition for Legal Abortion Political Action Committee (the PAC) and attending the PAC’s upcoming fund-raiser featuring its endorsed candidates. In part, the PAC’s voter endorsement policy¹ states:

Endorsement is considered only for those who unequivocally support:
• Access to abortion and contraception for all women, unimpeded by laws, restrictions, or regulations.

...

Judicial candidates: To be eligible for endorsement, judicial candidates must … neither seek nor accept the Right to Life Party nomination.

         A judge or non-judge who is seeking election to judicial office may personally participate in his/her own judicial campaign during the designated window period, subject to certain limitations (see e.g. 22 NYCRR 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 the candidate must not make pledges, promises, or commitments that are inconsistent with the impartial performance of adjudicative duties (see 22 NYCRR 100.5[A][4][d][i]-[ii]).

         We have advised that accepting a political party’s nomination “does not necessarily require acceptance of that party’s goals, positions, or platform” (Opinion 15-71, quoting Opinion 00-86; see also Opinion 93-52). The same principle applies where the organization is not a political party but another entity that supports or opposes judicial candidates (see Opinion 15-71).

         In either case, however, judicial candidates must 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, or a request to make a pledge or promise of conduct in office inconsistent with the impartial performance of adjudicative duties” (Opinion 15-71 [citations omitted]).

 Indeed, we have consistently advised that a judicial candidate must not agree to decline a nomination by one political party as a condition of nomination by another party (see Opinions 00-86 [candidate “may not accede to a political party’s pre-nomination request that he/she decline offers of nomination by other political parties”]; 93-64 [judge “may not agree to decline a nomination by a political party as a condition of re-nomination by another party”]; 93-25 [judge “may decline nomination by a political party; as long as it is not a quid pro quo for his or her nomination by another party, nor a condition of such other nomination”]; 91-27/91-49 [“A judge, running for re-election, may not agree to accept one political party’s designation conditioned upon declining any offer of nomination for the same position by another political party”]).²

         We have also said a judicial candidate may not attend an organization’s fund-raising event, where the theme of the event, as promoted by the organization, is an exhortation for attendees to “repeal or disregard” a particular statute (see Opinion 14-49). As we explained (id. [paragraph break omitted]), judicial candidates:

must not act in a manner that casts reasonable doubt on their willingness to respect and comply with the law and otherwise perform judicial functions in an appropriate manner consistent with their legal and ethical obligations. Under the facts presented, it appears that the [entity] has chosen to promote this particular fund-raising event with an exhortation for attendees to “repeal or disregard” a particular statute; indeed, it is the theme of the event. Although judges may seek repeal or amendment of a law, subject to certain limitations (see e.g. Joint Opinion 13-189/14-02), they may not simply disregard the law. In the Committee’s view, the theme of simply “repealing or disregarding” a particular law is profoundly disrespectful of the rule of law, and reflects an attitude which is wholly incompatible with the judicial function.

         Here, the PAC’s stated policy attaches at least two unacceptable conditions to its endorsement (see Opinion 15-71). First, the PAC’s policy requires judicial candidates to “neither seek nor accept the Right to Life Party nomination” as a condition of its endorsement (see Opinions 00-86; 93-64; 93-25; 91-27/91-49). Second, it requires candidates to “unequivocally” support access to abortion and contraception for all women, “unimpeded by laws, restrictions, or regulations.” Because abortion and contraception are, like other medical procedures and devices, subject to extensive regulations, the PAC is effectively asking judges to commit themselves to disregarding the law (cf. Opinion 14-49).

         Accordingly, we conclude this judicial candidate must decline the PAC’s endorsement and not attend its fund-raiser.

         The candidate may, if he/she wishes, also advise the PAC that acquiescence could result in disqualification in certain matters (see 22 NYCRR 100.3[E][1][f]; cf. Opinions 18-95 [a judge “would not be ethically permitted to fulfill many, or perhaps most, of the express and implied promises the questionnaire elicits”]; 17-28 [a judge’s “impartiality [might] ‘reasonably be questioned’ in a wide variety of cases involving judicial discretion if he/she agreed to the bold-faced statements on the questionnaire”] [footnote omitted]).³

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¹ This policy appears on a document entitled “____ PAC Voter Endorsement Policy, 2019,” provided to the candidate, and is reiterated in the PAC’s voter mailing dated “Autumn 2019.”

² This does not mean that a judicial candidate must accept all proffered endorsements (see Opinions 00-86; 93-64; 93-25; 91-27/91-49).

³ Section 100.3(E)(1)(f) requires disqualification where

the judge, while a judge or while a candidate for judicial office, has made a pledge or promise of conduct in office that is inconsistent with the impartial performance of the adjudicative duties of the office or has made a public statement not in the judge’s adjudicative capacity that commits the judge with respect to (i) an issue in the proceeding; or (ii) the parties or controversy in the proceeding.