Judicial Ethics Joint Opinion 12-84/12-95(B)-(G)
The Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,400 judges, who serve both full- and part-time. The committee's opinions interpret the Rules Governing Judicial Conduct (22NYCRR, Part 100) and the Code of Judicial Conduct. The committee, comprised of 26 current and retired judges and headed by former Justice George D. Marlow, also answers inquiries about proper campaign conduct from candidates for elective judicial office. The New York Law Journal publishes selected recent opinions of the committee.
Digest:(1) A judicial candidate must not be a speaker, guest of honor, or award recipient at a politically sponsored event, unless either (a) the event is not a fundraiser, or (b) the candidate's participation is unannounced prior to the event. (2) To the extent legally permissible, a judicial candidate may use campaign funds to attend bar association functions or other events that are not hosted by political organizations throughout his/her window period, provided that his/her attendance is in furtherance of his/her campaign for judicial office and the candidate determines that he/she will receive fair value for the expenditure. (3) A judicial candidate may list the name of a sitting judge as a reference for a political party's screening panel but must not ask a sitting judge to write the panel directly on the candidate's behalf. (4) A judicial candidate may permit other individuals to attend his/her fundraiser without charge, regardless of whether such individuals are currently seeking election to public office. (5) A judicial candidate may include a link from his/her campaign website to a political organization's website which contains information promoting the judicial candidate's campaign. Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(ii); 100.5(A)(1); 100.5(A)(1)(i)-(ii); 100.5(A)(1)(c)-(i); 100.5(A)(2); 100.5(A)(2)(i), (iii); 100.5(A)(4)(a), (c); 100.5(A)(5); 100.5(A)(6); 100.6(A); 22 NYCRR 101; 22 NYCRR 1200.8.2(b); Opinions 11-136; 11-64; 10-80; Joint Opinion 09-59/09-86; Opinions 08-160; 08-151; 08-64; 07-135; 07-130; 07-09; 05-104; 04-141; 03-51; 01-99 (Vol. XX); 01-27 (Vol. XIX); 95-161 (Vol. XIV); 94-15 (Vol. XII); 93-52 (Vol. XI); 92-29 (Vol. IX); 91-94 (Vol. VIII); 91-02 (Vol. VII); 89-125 (Vol. IV); 2004 Ann Rep of NY Commn on Jud Conduct, at 153; 2001 Ann Rep of NY Commn on Jud Conduct, at 28.
Opinion: In this opinion, the committee considers several recurring and significant questions that the Judicial Campaign Ethics Subcommittee has received from multiple judicial candidates about their campaign conduct.
The Rules Governing Judicial Conduct: A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and must not engage in any direct or indirect political activity except as specifically authorized by law or by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][I]). For example, a judge ordinarily may not attend a political gathering (see 22 NYCRR 100.5[A][g]) or purchase tickets to a politically sponsored event, even for a non-political purpose (see 22 NYCRR 100.5[A][i]).
A non-judge who is seeking election to judicial office is subject to applicable provisions of the Rules Governing Judicial Conduct throughout the course of his/her campaign (see 22 NYCRR 100.6[A]; cf. also 22 NYCRR 1200.8.2[b]).1
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][c]; 100.5[A]). For example, a candidate for judicial office may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][e]); may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][c]-[d]); and may not make speeches on behalf of another candidate (see 22 NYCRR 100.5[A][f]). Judicial candidates also may not make contributions to other candidates (see 22 NYCRR 100.5[A][h]) or personally solicit funds for any political organization or candidate (see id.; see also 22 NYCRR 100.5[A]; 100.5[A]).2
A judicial candidate must not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][c]; cf. 22 NYCRR 100.5[A] [prohibiting all judicial candidates from "directly or indirectly engag[ing]" in unauthorized political activity]).
Question 1. Speaker or Guest of Honor at Political Events: In Inquiry 12-95(B), a recently elected judge within his/her post-election window period asks whether he/she may attend a politically sponsored fundraising event and accept a service award at the event. The judge states that his/her name would not be used in any solicitation for the event. In Inquiry 12-95(C), a judge who is currently within his/her window period for another judicial office asks whether he/she may be one of several advertised speakers at a politically sponsored luncheon which is not a fundraiser,3 and the judge will speak solely about his/her own qualifications and candidacy at the event.
The committee has previously advised that a judicial candidate may not be a speaker, guest of honor, or recipient of an award at a politically sponsored fundraising event (see Opinions 07-09; 03-51; 01-27 [Vol. XIX]).4 In Opinion 01-27 (Vol. XIX), the committee advised that if a judicial candidate accepted an award from a political party at the party's annual fundraising dinner, or if the judge were a guest of honor at the event, the candidate "would be permitting his or her name to be used in connection with the fundraising activity of a political organization" (id.; see also 22 NYCRR 100.5[A][d]).
In Opinion 03-51, the committee similarly advised that if a judicial candidate accepted an award at a Congressperson's fundraiser, it "would appear to implicate [him/her] in the Congress[person]'s own campaign" (id.; see also 22 NYCRR 100.5[A][d]).
In Opinion 07-09, a judicial candidate asked whether he/she could "be honored" and "speak at" a fundraising event sponsored by a political organization. The committee again advised that a candidate may not be a speaker, guest of honor, or award recipient at a politically sponsored fundraiser, but also advised that the candidate may "provide a 'few words of acknowledgment' when he/she is introduced as a candidate" (Opinion 07-09; see also Opinion 04-141 [offering a similar analysis in the context of charitable fundraisers]).
In Inquiry 12-95(B), the inquirer's participation as a speaker will not be announced in advance of the political fundraising event. In the committee's view, this distinction warrants a different result from its prior opinions cited above.5
If a judicial candidate's participation as a speaker or award recipient is not announced prior to a political fundraising event, the candidate's name and participation is not being used to draw attendees to the event. Thus, there is little, if any risk that the public will conclude that the candidate is permitting his/her name to be used in, or is otherwise implicated in, the fundraising efforts (compare Opinions 03-51; 01-27 [Vol. XIX]). In serving as an unannounced speaker at a political fundraiser during his/her window period, a judicial candidate may speak on behalf of his/her own campaign (see 22 NYCRR 100.5[A][i]) but must not endorse or oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][e]) and must not personally solicit funds (see 22 NYCRR 100.5[A][h]).
Inquiry 12-95(C) raises the question of whether a judicial candidate who is currently within his/her window period may be an advertised speaker at a politically sponsored event that is not a fundraiser. The committee notes that judicial candidates may attend and speak to gatherings on their own behalf (see 22 NYCRR 100.5[A][i]) and may appear at such gatherings along with other candidates on their slate (see 22 NYCRR 100.5[A][iii]). Thus, the mere fact that the judicial candidate is advertised as a speaker or guest of honor at an event sponsored by a political organization does not, without more, violate the proscription against "permitting his or her name to be used in connection with any activity of a political organization" (22 NYCRR 100.5[A][d]) where, as here, the judicial candidate will be using the speaking opportunity to promote his/her own candidacy for judicial office.
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