Opinion 23-43

March 23, 2023

Digest:         A judicial candidate may appear in joint campaign advertisements only with candidates who make up the slate of which the judicial candidate is a part. Candidates are on the same slate if they (a) have been endorsed by the same political party and/or (b) will appear on the same political party’s ballot line.

Rules:          Election Law § 1-104; 22 NYCRR 100.0; 100.0(Q); 100.5; 100.5(A)(1)(e), (h); 100.5(A)(2); 100.5(A)(2)(ii)-(iv); Opinions 13-137/13-152/13-153; 09-176; 05-99; 02-100; 01-99; 91-107.

Opinion:

         The inquiring judge presides in a two-judge town court. Both justices are in their window period for re-election, but are members of different political parties. At this time, they have not been endorsed by the same political party and there is no indication that they will appear on the same ballot line. The judge asks if it is permissible for them to engage in joint campaign advertisements, where they would share the costs equally and would not endorse each other.

         During the applicable window period, a judicial candidate may participate in their own campaign for judicial office as permitted by the rules (see 22 NYCRR 100.0[Q]; 100.5[A][2]). The candidate may not, directly or indirectly, 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 make a contribution to a political organization or another candidate (see 22 NYCRR 100.5[A][1][h]), but may nonetheless appear in campaign advertisements along with other judicial and non-judicial candidates as part of a single “slate” of candidates (see 22 NYCRR 100.5[A][2][iii]).

         In Opinion 09-176, we addressed an inquiry from a town justice who wished to participate in joint campaign advertisements with another judicial candidate before the primary. We concluded that the candidates “may display campaign lawn signs that have both candidate[s’] names printed on them” (id.). In contrast, we concluded the candidates “may not send voters one letter conveying both candidates’ qualifications and bearing both candidates’ signatures that is printed on letterhead comprising both candidates’ names,” as this would create the appearance of an endorsement (id.). In a footnote, we observed that the term “slate” was not defined in the rules and we expressly “decline[d] to impose a requirement that a judicial candidate may not appear in any joint advertisements until his/her party has chosen its official slate” (id. fn 1).

         The present inquiry warrants a fresh look at these issues. The term “slate” appears exactly once in the Rules Governing Judicial Conduct. Section 100.5(A)(2)(iii) expressly permits a judicial candidate to:

appear at gatherings, and in newspaper, television and other media advertisements with the candidates who make up the slate of which the judge or candidate is a part. (emphasis added)

A careful reading of the political activity rules (22 NYCRR 100.5) reveals this is the only provision which specifically authorizes joint advertisements.¹ That is, the rules contemplate joint advertisements only when the candidates are on the same “slate.”

         It is therefore necessary to understand the term “slate.” The Rules Governing Judicial Conduct and the Election Law do not define the term (see 22 NYCRR 100.0; Election Law § 1-104), and ordinary dictionary definitions such as “a list of candidates for nomination or election” offer no meaningful guidance for our purposes (Merriam-Webster Online Dictionary, at 4b, available at https://www.merriam-webster.com/dictionary/slate [accessed March 29, 2023]).

         In a commonsense, everyday understanding of the term, however, the word “slate” implies a political party’s slate. The slate may be chosen by the political party’s leadership through endorsements, or may be determined through a judicial nominating convention, a political party caucus, petitioning process, or primary election in which the party’s registered voters select who will be on their ballot line. Thus we conclude that Section 100.5(A)(2)(iii) reflects a practical reality: when candidates are on the same “slate,” their appearance together on an advertisement does not create any appearance or implication that they are endorsing each other, as they have all been chosen by the political party’s leaders and/or voters. Consistent with this view, we have previously recognized that an advertisement “evidently prepared by or on behalf of the slate or political party, rather than by a judicial candidate” does not create an appearance that a judicial candidate endorses the other slate members, even if the slate advertisement refers to the slate as a “team” and requests “that voters vote for an entire row of candidates” (Opinion 13-137/13-152/13-153).

         Accordingly, we conclude that a judicial candidate may only appear on joint advertisements with other members of a political party’s slate. We recognize that judicial candidates may be endorsed by multiple political parties and appear on multiple political parties’ ballot lines. This means, in effect, that judicial candidates may be part of multiple slates. In our view, all of those party “slates” can be a basis for joint advertisements under Section 100.5(A)(2)(iii). As always, a judicial candidate must not endorse any other candidate and must pay no more than the candidate’s own pro rata share of the cost of a joint advertisement (see e.g. Opinions 13-137/13-152/13-153; 05-99; 02-100; 01-99; 91-107).

         Opinion 09-176 is overruled to the extent it permits two judicial candidates who are not on the same slate to display campaign lawn signs that have both candidates’ names printed on them or otherwise appear in joint campaign advertisements.

         Here, because nothing in the inquiry suggests that the inquiring judge and their co-judge are members of the same political party’s slate, they must not appear in joint campaign advertisements.

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¹ Other provisions permit a candidate to appear in media advertisements and promotional campaign literature “supporting his or her candidacy” (22 NYCRR 100.5[A][2][ii]), and permit the “candidate’s name to be listed on election materials along with the names of other candidates” (22 NYCRR 100.5[A][2][iv]).