Opinion 93-99

December 9, 1993

Please Note: The rules were significantly revised and renumbered in 1996, and the current rules on political activity are found in Section 100.5. As the Court of Appeals held: "New York's Rules Governing Judicial Conduct do not include a provision analogous to Minnesota's 'announce clause.' The pledges or promises clause … does not prohibit judicial candidates from articulating their views on legal issues" (Matter of Watson, 100 N.Y.2d 290 [2003]; cf. Republican Party of Minn. v White, 536 US 765 [2002]). We also note that current Section 100.6(E) states: "To the extent that any provision of the Code of Judicial Conduct as adopted by the New York State Bar Association is inconsistent with any of these rules, these rules shall prevail."

Digest: A judicial candidate may seek or accept the support and endorsement of the National Women's Political Caucus and/or of the Republican Pro Choice PAC, and may accept financial contributions and other campaign assistance, but may not personally solicit funds or contributions, nor may the candidate answer questions designed to elicit the candidate's views or pledges on particular controversial issues or concerning whether the judge would accept the nomination of some other party.

Rules: 22 NYCRR §§100.3, 100.7; Canon 7 of the Code of Judicial Conduct.

Opinion:

A candidate for judicial office, who is a full-time judge, asks whether or not it is permissible to seek the support and endorsement of the National Women's Political Caucus (hereafter the "NWPC"). The NWPC identifies viable candidates for judicial office and assists them in getting elected through financial contributions, campaign volunteers and technical assistance. The NWPC requires that the judge fill out a judicial candidate endorsement questionnaire which reads as follows:

1) Why did you decide to run for this office?

2) What are your qualifications for the position?

3) What are the key issues you expect to face as a judge?

4) What do you hope to accomplish during your tenure?

5) Would you accept a Right-to-Life party nomination if offered?

6) What is the most important attribute you possess for becoming a judge?

7) If you had a choice, what types of cases would you decline to hear and why?

8) To what organizations and clubs do you belong?

The judge asks specifically whether Canon 7(B)(1)(c) or other restriction on judicial conduct would be violated by seeking or accepting such endorsement.

Canon 7(b)(2) states that a judicial candidate “should not himself or herself solicit or accept campaign funds, or solicit publicly stated support, but he or she may establish committees of responsible persons to secure and manage the expenditure of funds for his or her campaign and to obtain public statement of support for his or her candidacy....” Although, read literally, this section states that a judge may not himself or herself solicit or accept publicly-stated support, this Committee does not believe that the Canon should be so strictly construed as to prevent a candidate from seeking the support of any particular organization.

However, Canon 7(b)(1)(c) of the Code of Judicial Conduct states that a judicial candidate “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office, announce his views on disputed legal or political issues...” Accordingly, the judge may not answer any questions in the NWPC questionnaire that are designed to elicit: (1) the judge's views on particular political or legal issues; (2) a formal or informal pledge as to the position the judge will take on such issues; or (3) whether the judge would accept or decline the endorsement of another party or organization.

The same considerations apply to the questionnaire submitted by the Republican Pro Choice PAC.

This Committee notes, with respect to question seven (7) of the NWPC questionnaire that, in the absence of express authority to the contrary, it is the judge’s duty to accept cases that come within his or her jurisdiction. See §100.3 of the Rules of the Chief Administrative Judge, which states: “"The judicial duties of a judge take precedence over all his [or her] other activities. Judicial duties include all the duties of a judicial office prescribed by law.”

The inquiring judge also asks whether accepting financial and other campaign assistance from the NWPC would violate any judicial restrictions. It is the opinion of this Committee that accepting financial contributions, campaign volunteers and technical assistance does not violate any judicial restrictions, as long as the judge does not personally solicit funds or contributions.

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