October 25, 2001
Digest: Two judges who are running for judicial office as part of a slate and who are of the same political party may participate in joint advertising or a joint fund-raiser sponsored or financed by their campaign committees, provided that such activity does not state or imply that each judge is endorsing or soliciting funds on behalf of the other.
Rule: 22 NYCRR 100.5(A)(1)(e); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(ii); Opinions 91-107 (Vol. VIII); 91-113 (Vol. VIII).
A judge is one of two candidates from the same political party running for judicial office. Because there are two vacant judgeships, the candidates would like to use joint advertising and hold a joint fund-raiser as part of their campaigns. The judge asks whether it is ethically permissible for two judicial candidates to use joint advertising and to hold a joint fund-raiser either paid for by their campaign committees or by third parties.
A judge who is a candidate for judicial office may participate in his or own campaign [22 NYCRR 100.5(A)(2)] and may appear at gatherings and in advertisements with other candidates on the judge’s slate 22 NYCRR 100.5(A)(2)(ii). In two earlier opinions, the Committee concluded that candidates may use joint campaign literature and may participate in a joint fund-raiser, the proceeds of which would be divided between the two candidates. Opinions 91-107 (Vol. VIII); 91-113 (Vol. VIII). The Committee suggested that any joint campaign literature should include a disclaimer that ". . . neither judicial candidate is endorsing any other candidate." Opinion 91-107 (Vol. VIII). In addition, any such joint campaign advertising may include a slogan applicable to both judges. Similarly, at a joint fund-raiser, ". . . neither candidate may comment on the qualifications of or endorse the other." Opinion 91-113 (Vol. VIII).
With respect to whether the judges’ campaign committees may pay for joint advertising and sponsor a joint fund-raiser, the Rules Governing Judicial Conduct prohibit a judge from publicly endorsing another candidate [22 NYCRR 100.5(A)(1)(e)] and from soliciting funds for any candidate 22 NYCRR 100.5(A)(1)(h). But, the Committee does not believe that joint advertising paid for by the candidates’ campaign committees necessarily implies that each candidate endorses the other or that each candidate is soliciting funds on behalf of the other. As stated in Opinions 91-07 (Vol. VIII) and 91-13 (Vol. VIII), judicial candidates may issue joint campaign literature and run joint fund-raisers. In our opinion, from the standpoint of public perception it is of little significance whether that expenditure or activity is being undertaken by the political party on whose slate the candidates are running or by their respective campaign committees. But, regardless of whether the activity is that of a political party or of campaign committees, care must be taken to avoid any implication of a cross-endorsement or solicitation.