Opinion 23-69
June 15, 2023
Digest: A judge who is a candidate for election or re-election may publicly identify themselves as “pro choice” or “pro life” during the applicable window period, provided the judge also makes clear that they will decide all cases fairly and impartially and in accordance with governing law.
Rules: 22 NYCRR 100.0(Q); 100.1; 100.2; 100.2(A); 100.2(B); 100.3(B)(1); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(c); 100.5(A)(2)-(6); 100.5(A)(2)(i); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 19-119; 18-95; 17-28; 15-71; Republican Party of Minnesota v White, 536 US 765 (2002).
Opinion:
The inquiring judge is in their window period for election or re-election to judicial office. At a recent candidate forum, an audience member asked the judge if they were “pro choice.” The judge was taken aback by this question. The judge asks whether, going forward, it is ethically permissible to “openly proclaim” that the judge is pro-choice or pro-life.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A sitting judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). One exception, applicable at all times, permits a judge “to vote and to identify himself or herself as a member of a political party” (see 22 NYCRR 100.5[A][1][ii]), even though the judge “must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]).
Moreover, the rules permit a judge or non-judge to engage in certain political activity in support of their own campaign for election or re-election to judicial office during the applicable window period (see generally 22 NYCRR 100.5[A][1][c]; 100.5[A][2]-[6]; see also 22 NYCRR 100.0[Q]). A judicial candidate may “attend and speak to gatherings on his or her own behalf, provided that the candidate does not personally solicit contributions” (22 NYCRR 100.5[A][2][i]). A judicial candidate must not “make pledges or promises of conduct in office that are inconsistent with the impartial performance of the adjudicative duties of the office” (22 NYCRR 100.5[A][4][d][i]), or, “with respect to cases, controversies or issues that are likely to come before the court, make commitments that are inconsistent with the impartial performance of the adjudicative duties of the office” (22 NYCRR 100.5[A][4][d][ii]). A judicial candidate also must not “knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent” (22 NYCRR 100.5[A][4][d][iii]).
In Opinion 15-71, we advised that a judicial candidate may, subject to certain limitations, participate in a pro-choice or pro-life advocacy organization’s interview process, answer questions during the interview, and, if offered, accept the organization’s endorsement. This advice was not rendered in a vacuum. In 2002, the United States Supreme Court concluded that a “canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment” (Republican Party of Minnesota v White, 536 US 765, 788 [2002]). Thus, in Opinion 15-71, we said a judicial candidate:
may express his/her own personal views on matters related to abortion during the interview process with the organization in question, provided the candidate does not make pledges or promises of conduct in office inconsistent with the impartial performance of the adjudicative duties of office, or improper commitments regarding cases, controversies, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][i]-[ii]; cf. Republican Party of Minnesota v White, 536 US 765 [2002]). If the inquiring candidate chooses to share his/her views on the subject of abortion in an interview with the advocacy organization, he/she should also make clear that he/she will decide all cases fairly and impartially and in accordance with governing law (see generally 22 NYCRR 100.3[B][1];100.5[A][4][a]).
In the years since Opinion 15-71, we have received inquiries reflecting that both pro-life and pro-choice organizations have attempted to solicit promises, pledges or commitments from judicial candidates. Such efforts must be rejected where inconsistent with the integrity and impartiality of the judiciary or otherwise impermissible under the Rules. Thus, we said a judicial candidate may not answer a political party’s questionnaire designed to elicit express and implied commitments that (a) are unrelated to the impartial performance of judicial duties and/or (b) would require them to engage in activities prohibited by the Rules (see Opinion 18-95 [Women’s Equality Party]). Nor may a judicial candidate respond to a questionnaire which, when seen as a whole, can only be seen as a series of implied pledges, promises, and commitments touching on a wide variety of closely interrelated issues that may come before the candidate if elected or re-elected (see Opinion 17-28 [NYS Right to Life Committee]).
Indeed, where a political action committee’s endorsement is actually conditioned on the candidate’s pledge, promise or commitment (a) not to seek or accept another political party’s nomination and (b) to disregard the law by “unequivocally support[ing]” access to abortion “unimpeded by laws, restrictions, or regulations,” we said a judicial candidate must affirmatively decline that entity’s endorsement (Opinion 19-119).
Here, however, the question is only whether judges may, during the applicable window period, publicly identify themselves as pro-choice or pro-life, without more. In our view, this is a “fact concerning the candidate” which may be shared, at the candidate’s discretion, in a manner that is truthful and not misleading (22 NYCRR 100.5[A][4][d][iii]), provided the candidate also makes clear that they will decide all cases fairly and impartially and in accordance with governing law.