Opinion 93-64

June 10, 1993

Digest:         An incumbent judge may not agree to decline a nomination by a political party as a condition of re-nomination by another party.

Rule:            22 NYCRR §100.1.

Opinion:

         Two incumbent judges inquire whether they may enter into an agreement whereby they will be "cross-endorsed" by the major political parties, conditioned on a promise that neither would accept the endorsement of any political organization other than endorsements received in their earlier elections. The effect of the agreement is a mutual agreement to decline nomination by a minor political party.

         This Committee has previously advised (Opinions 91-27, Vol. VII, and 93-25, Vol. XI) that a judicial candidate may decline nomination by a political party provided such declination is not a condition for nomination by some other political party. That advice was based upon a decision of the Court of Appeals in Rosenthal v. Harwood, 35 N.Y.2d 409, which held that "the exactions of agreements against (judicial) cross-endorsement falls into the forbidden area." And, in Donovan v. Board of Elections of Nassau County, 29 N.Y.2d 725, the Court of Appeals admonished “political organization leaders should not exact a promise of party loyalty from candidates from judicial office as a condition of support, and such candidates should not make these promises in exchange for support.”

         Accordingly, this Committee advises the inquiring judges not to enter into the proposed agreement in its present form.