Opinion: 00-86

September 14, 2000

Digest:  A candidate for election to a judicial office may not accede to a political party's pre-nomination request that he/she decline offers of nomination by other political parties; but is free to decline other offers for reasons independent of any such request.

Rule:  22 NYCRR 100.5; 100.5(A)(4);
           Joint Opinion 91-27/91-49 (Vol. VII);
           Opinion 93-25 (Vol. XI);
          Matter of Rosenthal v. Harwood, 35 N.Y.2d 469 (1974);
          Matter of Donovan v. Board of Elections of Nassau County,
29 N.Y.2d 725 (1971).


            An Administrative Judge, acting on behalf of other judges in the Judicial District who are seeking reelection, inquires whether acceding to a pre-nomination request by a political party, that he/she decline nomination by other political parties, is prohibited political activity, or would create the appearance of prohibited political activity; and, if so, whether such conduct would affect the judges' subsequent assignment to Election Law proceedings involving any of the political parties encompassed by this inquiry. It appears that underlying this inquiry is a request that this Committee reconsider our Opinion 93-25 (Vol. XI).

            Section 100.5 of the Rules Governing Judicial Conduct states that "(a) judge or candidate for election to judicial office shall refrain from inappropriate political activity"; and section 100.5(A)(4) further states that "A judge or non-judge who is a candidate for public election to judicial office: (a) shall maintain the dignity appropriate to judicial office and act consistent with the integrity and independence of the judiciary."

            In Matter of Donovan v Board of Elections of Nassau County, 29 NY2d 725 (1971), the Court of Appeals wrote that ". . . political organization leaders ought not exact a promise of party loyalty from candidates for judicial office as a condition of support, and such candidates should not make these promises in exchange for support ..." 29 NY2d at 726. Three years later, the Court revisited the issue in Matter of Rosenthal v Harwood, 35 NY 469 (1974), and explicitly stated that in its decision in Donovan, "A more precise choice of words would have replaced 'ought not' with the more accurate 'may not'". 35 NY2d at 473. The Court went on to hold that the exaction of agreements against cross-endorsements by judicial candidates is impermissible.

            This Committee, in Joint Opinion 91-27/91-49 (Vol. VII), citing Matter of Rosenthal v Harwood, stated that judges seeking reelection or non-judges seeking election to judicial office may not accept one political party's designation conditioned upon declining any offer of nomination for the same position by another political party. Subsequently, in Opinion 93-25 (Vol. XI), the Committee stated that a candidate for judicial office could, at the request of the party nominating him/her, decline cross-endorsement by other parties, provided such declination was not a condition of the nomination.

            In light of the above rulings, it now appears to this Committee that the ethical distinction between acceding to a condition or acceding to a pre-nomination request not to accept another party's nomination - because it is made by a political party offering a judicial nomination - is too fine for purposes of practical application or public perception. We are now of the view that complying with either a pre-nomination request made by, or a condition imposed by a political party - that its candidate for judicial office decline cross-endorsement by other parties - would give rise to "an impermissible reciprocity of obligation between a political party and its candidate for judicial office", and thus demonstrate "a belief in party discipline repugnant to the choice and functioning of an independent judiciary." Matter of Rosenthal v Harwood, supra, at 475.

            But, we do note that it is not within the scope of this Committee's authority to advise that a political party is forbidden from making a suggestion in this regard. Nor does the Committee believe that candidates for elective judicial office are obligated to accept any and all cross-endorsements offered. For example, there are situations where a candidate for judicial office is tendered nomination by parties whose positions or platforms are repugnant to the candidate's personal opinions; or who may, for his/her personal or philosophical reasons, not wish to associate, or be seen to associate with the leadership or other candidates of a political party. Clearly, accepting a nomination by such a party does not necessarily require acceptance of that party's goals, positions, or platform. However, some candidates may appropriately believe, inter alia, that in their circumstances and at that time, acceptance would indicate to the electorate such an approval; or they may have strong, valid reasons for declining to be associated with the leaders, members, or candidates of certain political parties. Under these circumstances, a candidate for judicial office is entitled to decline cross-endorsement by another party, provided the decision to do so is a personal one, and not arrived at as a result of the pre-nomination request or insistence of any other political party.

            In light of the views expressed herein, the second issue posed by the inquiry concerning the assignability to Election Law cases is moot.