Opinion 24-131
October 30, 2024
Digest: A non-judge candidate for election to judicial office may be a regular member of a political party’s county committee, subject to all applicable limitations of 22 NYCRR 100.5. The candidate may participate in the county committee’s candidate designation process to the extent of voting to designate him/herself.
Rules: 22 NYCRR 100.5(A)(1)(a)-(c), (e)-(f), (h); 100.5(A)(2); 100.5(A)(2)(i), (v); 100.5(A)(3); 100.5(A)(4)(a); 100.4(A)(4)(d)(i)-(iii); 100.5(A)(5)-(6); 22 NYCRR part 1200, Rule 8.2(b); Opinions 09-148; 01-44; 00-11; 98-99; 96-29; 95-73; 95-59.
Opinion:
A non-judge candidate for elective judicial office is a member of a political party’s county committee and is thus “eligible to vote for [him/her]self” at a designation meeting. The candidate asks if the Rules Governing Judicial Conduct prohibit him/her from “participating as a committee member and voting in the designation process.”
A judge or non-judge candidate for elective judicial office may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, a judicial candidate is prohibited from “acting as a leader or holding an office in a political organization” (22 NYCRR 100.5[A][1][a]). While a sitting judge who is a judicial candidate may not be “a member of a political organization other than enrollment and membership in a political party” (22 NYCRR 100.5[A][1][b]), a “non-judge who is a candidate for public election to judicial office may also be a member of a political organization and continue to pay ordinary assessments and ordinary contributions to such organization” (22 NYCRR 100.5[A][3] [emphasis added]).
1. May a Non-Judge Judicial Candidate Be on a County Committee?
We have advised that mere “[m]embership on a town party committee is not an office in a political organization” (Opinion 95-59). Thus, although a non-judge judicial candidate must resign the political office of chairperson of the town committee of a political party (see Opinion 95-73) and must likewise resign as county chair (see Opinion 00-11), we have advised that a non-judge candidate need not resign as a member of a state committee of a political party (see Opinion 95-73) or as a member of a town committee of a political party (see Opinion 95-59). In our view, a prohibited “office” within a political party committee refers to positions such as chair, secretary, treasurer, or other such officer positions.
Here, the non-judge judicial candidate is not an officer of the political party’s county committee but is instead a regular “member” of it with the same voting rights afforded to all county committee members (see 22 NYCRR 100.5[A][3]). Accordingly, it is ethically permissible for the non-judge candidate to remain as a committee member, provided that he/she abides by all applicable limitations of Section 100.5.[1]
In light of this conclusion, we now overrule our prior Opinion 01-44 to the extent it suggests that a non-judge candidate for elective judicial office may not serve as “ward committee person” of a political party, even where the candidate is a regular rank-and-file ward committee member and does not hold any office or officer position on the ward committee or in the political party (Opinion 01-44).
For completeness, we note that the inquirer must resign from the county committee if he/she becomes a judge (see 22 NYCRR 100.5[A][1][b]; Opinion 96-29).
2. May a Non-Judge Candidate Participate in the County Committee’s Candidate Designation Process?
Section 100.5 generally prohibits a judicial candidate from engaging in “partisan political activity” beyond “participating in his or her own campaign for elective judicial office” (22 NYCRR 100.5[A][1][c]). Additional prohibitions include “publicly endorsing or publicly opposing (other than by running against) another candidate for public office” (22 NYCRR 100.5[A][1][e]) and “making speeches on behalf of . . . another candidate” (22 NYCRR 100.5[A][1][f]).
Applying these principles to the fact of rank-and-file membership on the county committee, we conclude that a non-judge judicial candidate may participate in the county committee’s candidate designation process only to the extent of voting to designate him/herself.
A note will be placed on Opinions 95-59 and 95-73 to make clear that a non-judge candidate for elective judicial office may participate in the committee’s candidate designation process only to the extent of voting to designate him/herself, and must continue to abide by all applicable limitations of 22 NYCRR 100.5.
3. Additional Reminders
If county committee members are expected to pass petitions, we note that a judicial candidate may circulate a nominating or designating petition only if the petition includes the candidate’s own name as a nominee or designee (see e.g. Opinions 09-148; 98-99). Thus, a judicial candidate may circulate a joint petition for several candidates that includes his/her own name, but may not circulate individual petitions for other candidates (see id.).
All judicial candidates should be mindful that personal solicitation or acceptance of campaign contributions is strictly forbidden (see 22 NYCRR 100.5[A][1][h]; 100.5[A][2][i]; 100.5[A][5]). Campaign-related expenditures are also very limited (see e.g. 22 NYCRR 100.5[A][1][h]; 100.5[A][2][v] [limitations on price and number of tickets]; 100.5[A][6] [fair value rule]), and certain speech limitations apply (see e.g. 22 NYCRR 100.5[A][1][e] [public endorsements]; 100.5[A][4][a] [judicial dignity, impartiality, integrity and independence]; 100.5[A][4][d][i]-[ii] [pledges, promises, and commitments]; 100.5[A][4][d][iii] [misrepresentations]).
For questions about these and other ethical restrictions during a campaign for elective judicial office, candidates may contact the Judicial Campaign Ethics Center at 1-888-600-5232.
[1] Where the non-judge is a lawyer, compliance with applicable portions of Part 100 is a matter of attorney ethics (see 22 NYCRR part 1200, Rule 8.2[b] [“A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Part 100 of the Rules of the Chief Administrator of the Courts.”]).