Opinion 20-83

June 18, 2020

Digest:         A Supreme Court candidate may write a letter asking voters to vote in a primary election for a judicial delegate who will support his/her nomination but must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy for Supreme Court. This information should be contained in the body of the letter; a notation at the very bottom of the page, in a much smaller font than the rest of the letter, is insufficient.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(1)(c)-(e); 100.5(A)(2); Opinions 18-105; 10-101/11-01; 08-157.

Opinion:

         A candidate for election to Supreme Court asks if he/she may send a letter to voters who are registered members of a political party asking them to support a particular candidate as their party’s delegate to the upcoming judicial nominating convention. Throughout the full-page, multi-paragraph letter, the candidate emphasizes the importance of judicial elections generally and supporting this delegate in particular. However, the body of the letter contains no reference to the inquirer’s own candidacy nor any explanation that his/her endorsement of such delegate is for the purpose of furthering his/her own candidacy. The letter closes with the inquirer’s signature. At the very bottom of the page, in a much smaller font, similar to a footnote or a letterhead template, appears the following language: “This mailing is paid for by the Committee to Elect [inquirer’s name] because DELEGATE [FULL NAME] has pledged to support [him/her].”¹

            A judge or non-judge candidate for elective judicial office may personally participate in his/her own election campaign during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][2]; 100.0[Q] [defining “window period”]; 100.0[A] [“A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy…”]). However, the candidate may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]) and may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]).

            Nonetheless, “given the special challenges of the Supreme Court nomination process,” we have “recognized one narrow exception to the rule against publicly endorsing other candidates” (Opinion 18-105). As relevant here, we have advised that a candidate for Supreme Court may ask voters to vote in a primary election for the judicial convention delegate who will support his/her nomination, “but must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy” (Opinion 08-157 [emphasis added]; accord e.g. Opinions 18-105 [a Supreme Court candidate may circulate a petition for the party’s slate of “uncommitted” judicial delegates, where none of the delegates on the petition is publicly committed to support any Supreme Court candidate, but “must make clear that his/her endorsement of such delegates is for the purpose of furthering his/her own candidacy”] [emphasis added]; 10-101/11-01 [subject to the same caveat, a Supreme Court candidate may “circulate petitions containing the names of one or more delegate candidates who will support him/her, as long as those petitions do not contain the names of any other candidates”]).

         Accordingly, the question before us is whether the proposed letter “make[s] clear” that the inquirer’s endorsement of the delegate is for the purpose of furthering his/her own candidacy for Supreme Court (Opinion 08-157). Here, we conclude the proposed letter is inadequate because it does not clearly identify the inquirer as a Supreme Court candidate, nor does it sufficiently make clear that the inquirer is endorsing the judicial delegate in furtherance of his/her own candidacy. This information should be contained in the body of the letter, rather than minimized or downplayed, as it is necessary to avoid creating an impression that a judicial candidate is engaging in impermissible political conduct (see 22 NYCRR 100.5[A][1][c]-[e]). A notation at the very bottom of the page, in a much smaller font than the rest of the letter, is not sufficiently prominent to meet this standard.

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¹ A recipient who happens to read the small-font notice and understands New York’s judicial nominating convention system might correctly infer that the inquirer must be running for Supreme Court, but this is nowhere directly stated in the proposed letter.