Opinion 98-99

September 10, 1998

Please Note: Although this opinion uses the term “nominating petition,” the same principles also apply to designating petitions and opportunity to ballot petitions.

Digest:         (1) A judge may circulate the nominating petitions for a slate of candidates from the judge's own political party or another political party only if the judge's name is also on the petition as a nominee, but may not circulate individual nominating petitions of other candidates in any political party. (2) A part-time judge, who is also a Notary Public, may authenticate a nominating petition of any political party as a Notary Public. (3) The judge's spouse may circulate nominating petitions of any party, and, as a Notary Public, authenticate the petitions for any individual candidate, slate or group of candidates as long as the actions are those of the spouse and are not intended as the indirect political activity of the judge.

Rule:            Real Property Law § 298; CPLR 2309(a); 3113(a)(1); 22 NYCRR 100.5, 100.5(A)(1)(c), (d) and (e); Opinions 94-78 (Vol. XII) 91-94 (Vol. VIII);
91-96 (Vol. VIII): Russell v. Board of Elections, 45 NY2d 800, (1978)

Opinion:

         A part-time town justice asks a series of questions concerning potentially impermissible conduct by the judge and the judge's spouse regarding the circulation and authentication of political nominating petitions. Questions include whether the judge or the judge's spouse may circulate or authenticate (as a judge or as a Notary Public) nominating petitions for the judge and for other candidates of the judge's party and other political parties.

         The Rules Governing Judicial Conduct prohibit a judge from directly or indirectly engaging in political activity, with certain exceptions pertaining to the judge as a candidate for judicial office. 22 NYCRR 100.5. Prohibited political activity includes:

engaging in any partisan political activity, provided that nothing in this section shall prohibit a judge or candidate from participating in his or her own campaign for elective judicial office... 22 NYCRR 100.5 (A)(1)(c)

participating in any political campaign for any office or permitting his or her name to be used in connection with any activity of a political organization 22 NYCRR 100.5 (A)(1)(d);

publicly endorsing or publicly opposing (other than by running against) another candidate for public office. 22 NYCRR 100.5 (A)(1)(e).

         This Committee has held that a judge may circulate petitions for a slate of candidates which includes the judge's name as a nominee on the petition, but may not circulate individual nominating petitions of other candidates. Opinions 91-96 (Vol. VIII); 91-94 (Vol. VIII).

         A town or village justice has limited powers to administer an oath, make an acknowledgment and take a deposition. However, a town or village judge by virtue of holding that office is not a Notary Public. Real Property Law, § 298; CPLR 2309(a); 3113(a)(1). Thus, the Court of Appeals has held that a justice should not authenticate a nominating petition, because the Election Law requires that the petition be authenticated by a Notary Public. Russell v. Board of Elections, 45 NY2d 800, (1978). (A part-time judge may also be a Notary Public. Opinion 94-78 [Vol. XII].)

         Based upon the foregoing, the Committee is of the opinion that a justice may circulate the nominating petitions for a slate of candidates from the judge's own political party or another political party if the judge's name is also in nomination for judicial office on the petition(s). But, the justice may not circulate individual nominating petitions of other candidates of any political party.

         A part-time justice, who is also a Notary Public may authenticate a nominating petition from any political party as a Notary Public.

         The justice's spouse may circulate nominating petitions of any party, and if a Notary Public, may authenticate the petitions for any individual candidate, slate or group of candidates from political party as long as the actions are those of the spouse and are not intended to be the indirect political activity of the Justice.