June 18, 1999
Digest:
Judges running for election on the same slate may jointly advertise their
candidacies in an advertisement that makes reference to the number of years
of judicial experience of each candidate, but the advertisement may not
refer to the total number of years of judicial experience of the candidates
collectively.
Rule:
22 NYCRR 100.5(A)(1)(f); 100.5(A)(2)(iii); 100.5(A)(4)(d)(iii);
Opinions 91-107 (Vol. VIII); 91-113 (Vol. XIII).
Opinion:
There are a number of vacancies in the Supreme Court in a particular judicial
district. The candidates for the positions, each of whom has been nominated
by the same political parties, wish to engage in certain joint campaign
activities. One of the candidates submits the following inquiry:
We have tentatively agreed to run joint ads on TV, radio, and print media. We each have a substantial number of years on the bench. Between all of us, the total is approximately 80 years. We would like to have an ad which stresses that fact.
We have in mind an ad which would have each of our pictures over our respective names and current positions. Under each picture we would specify the number of years each of us has served on the bench.
Candidates for judicial office may run as part of a slate, either with other judicial candidates or nonjudicial candidates, or both, and may campaign together. 22 NYCRR 100.5(A)(2)(iii). This could include appearing in "media advertisements with the candidates who make up the slate of which the judge or candidate is a part." Ibid. Accordingly, an advertisement in which the candidates' joint picture appears together with a caption stating each candidate's name and the number of years he or she has served on the bench is entirely appropriate. Such information goes to the identity, qualifications and current position of each individual candidate and is therefore permissible. Cf. 22 NYCRR 100.5(A)(4)(d)(iii).Above our pictures it would, in substance, say "Five candidates with a total of 80 years of judicial experience."Our question is whether an ad in substantially that format is permissible.
However, our view is different concerning the proposed statement, "Five candidates with a total of 80 years of judicial experience." Judges may not endorse other candidates for election even if the candidates are part of the same slate as the judge. 22 NYCRR 100.5(A)(1)(f); Opinion 91-107 (Vol. VIII). Here, the grouping of qualifications, i.e., highlighting the total number of years of judicial experience, seems to indicate that each individual candidate is promoting the candidacy of each of the other candidates because of the total experience possessed by the group as a whole. In our opinion, this is the equivalent of an endorsement by each judge pictured of each of the other judges. This would violate section 100.5(A)(1)(f) of the Rules. See e.g., Opinion 91-113 (Vol. VIII). We therefore advise that the proposed reference to the total years of judicial experience of the group as a whole not be used.