Opinion 19-98

October 24, 2019

Digest:         A judge who presides in a drug treatment court may not solicit campaign endorsements from treatment court graduates.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.5(A)(2)(ii); Opinions 15-139/15-140; 15-101; 15-47; 14-181; 14-151; 13-126; 11-65; 10-34; 09-11; 08-152; 04-94; 01-44; 91-132.

Opinion:

         A judicial candidate presiding in a drug treatment court asks if he/she may permit graduates with completely disposed cases to endorse his/her candidacy, either directly or by endorsing the treatment court model, in a campaign advertisement paid for by the judge’s campaign committee.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge may be active in his/her own judicial campaign during his/her window period and may, inter alia, distribute pamphlets and other campaign literature supporting his/her candidacy (see 22 NYCRR 100.5[A][2][ii]).               

         In general, a judicial candidate may personally solicit endorsements for his/her election during the applicable window period (see Opinions 13-126; 01-44 [candidate may personally seek the endorsement of the Police Benevolent Association and other organizations]). Indeed, a judge within his/her window period may solicit comments about the judge’s conduct in court from lawyers, provided he/she avoids any appearance of undue pressure on the attorneys in making the request (see Opinion 08-152).

         In some instances, however, a judge must not request endorsements as it will be difficult, if not impossible, to avoid an appearance of undue pressure. For example, a town justice must not ask individual court officers of a town court to publicly support his/her re-election (see Opinion 11-65). We felt this personal solicitation by the judge “could create an appearance of undue pressure on public employees who might otherwise expect their employment to be completely independent of the outcome of a specific judge’s re-election campaign” (id. [noting the judge “remains free ... to solicit endorsements during his/her window period from any organization to which the court officers may belong, such as a labor union or a court officers’ association”]).

         Here, the judge wishes to solicit endorsements from litigants. Outside the treatment court context, we have said a judge may not mentor a teenager who recently appeared before him/her as the respondent in a Persons in Need of Supervision truancy proceeding (see Opinion 14-181) and may not rent an apartment to a litigant who appears before the judge, even where the judge would charge “less than fair market value” to help “protect the litigant from the onerous terms of the proposed partial liquidation of a structured settlement annuity” (Opinion 10-34 [noting the litigant had come to court seeking approval of the proposed liquidation]). Also, a judge who sat in a now-concluded criminal trial may not meet with a crime victim who wishes to thank the judge for considering his/her views at the time of sentencing (see Opinion 09-11) or attend an appreciation luncheon held by a relative of murder victims to thank invited guests for “your love and support” more than one year after the judge presided over the trial (Opinion 91-132). Such activities would, among other things, raise questions about the judge’s impartiality.

         Although “the procedure followed in treatment-oriented problem solving courts is likely to promote closer, more personal relationships between the presiding judges and the defendants,” treatment court judges “still must uphold the independence of the judiciary” (Opinion 14-151). Thus, we advised treatment court judges not to write reference letters for recent drug court defendants/participants (see Opinions 15-139/15-140; 15-101; 14-151) and not to “deliberately attend or participate in an exercise program together with treatment court participants” (Opinion 15-47).

         Here, we view a judge’s solicitation of endorsements from treatment court defendants/participants, even after they have graduated from the program, could create seemingly undue pressure and raise questions about his/her impartiality. For example, other treatment court participants and the public may mistakenly assume that agreeing to endorse the judge in a campaign advertisement sponsored by the judge’s campaign committee affected the successful disposition. We thus conclude a judicial candidate who presides in a drug treatment court may not solicit endorsements from treatment court graduates.¹

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¹ A treatment court judge is typically actively and directly involved with the defendant/participant (see e.g. Opinion 15-139/15-140). We thus distinguish Opinion 04-94, where we said a judge “may accept an offer of support for his/her candidacy from an elected official who recently appeared before the judge in a Family Court matter the parties resolved by stipulation, without any participation by the judge” (Opinion 04-94 [emphasis added]).