Joint Opinion 13-137/13-152/13-153

March 13, 2014

Digest:        (1) A judicial candidate’s participation in a joint advertisement, prepared on behalf of a slate of judicial and non-judicial candidates, is not rendered impermissible merely because the advertisement characterizes the slate as a “team” and urges voters to vote for particular row(s) on the ballot on which the slate appears. (2) Use of disclaimer language indicating that the judicial candidate is not publicly endorsing other candidates is not mandatory for any judicial candidate.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.5 (A)(1)-(5);100.5(A)(1)(e); 100.5(A)(2)(iii)-(iv); Opinion 05-117; 05-99; 01-99 (Vol. XX); 99-117 (Vol. XVIII); 91-107 (Vol. VIII); 91-94 (Vol. VIII).

Opinion:

         The Committee takes this opportunity to address two recurring issues regarding a judicial candidate’s participation in joint advertisements with other members of his/her slate.

1. Slate’s Reference to Itself as a “Team”

         In Inquiry 13-137, a judicial candidate asks if he/she may participate, along with five non-judicial candidates,¹ in a slate advertisement which characterizes the slate as a “team.” Similarly, in Inquiry 13-152, a judicial candidate asks if he/she may participate, along with numerous non-judicial candidates, in a joint advertisement which contains the following text:

2013 [party] Team

Endorsed by ____ and ____ parties

www.[party].com

Visit us: facebook.com/[party]

Follow us: Twitter @[party]

Vote Row ___ and ____

Ride to the polls: [telephone number]

The remainder of the page consists of a grid of photographs of all of the slate members, with the name and position sought listed on each photograph.

         A judicial candidate may not, directly or indirectly, publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]). During a judicial candidate’s window period, his/her name may, however, appear in media advertisements and may be listed on election materials along with the names of other judicial and non-judicial candidates as part of a single “slate” of candidates (see 22 NYCRR 100.0[Q]; 100.5[A][2][iii]-[iv]).

         The Committee has previously advised that a judicial candidate may not indirectly endorse an incumbent judge who is running for re-election by stating that he/she is the unanimous choice to join the incumbent judge on the bench (see Opinion 05-117). Judicial candidates on the same slate may jointly advertise their candidacies and refer to the number of years of judicial experience of each candidate, but may not refer to the total number of years of judicial experience of the candidates collectively (see Opinion 99-117 [Vol. XVIII]). Judicial candidates may campaign door-to-door with, but may not comment on the qualifications of, another candidate (see Opinion 91-94 [Vol. VIII]). A judicial candidate may allow a political party to issue joint campaign literature with other candidates for elective office (see 22 NYCRR 100.5[A][2][iii]; Opinion 01-99 [Vol. XX]). In addition, a judicial candidate may advertise with one or more candidates for elective office, including those running for non-judicial office, provided that the judicial candidate does not endorse any other candidate and pays no more than his/her pro rata share of the cost of the advertisements (see Opinions 05-99; 01-99 [Vol. XX]; 91-107 [Vol. VIII]).

         As for these three inquiries, the Committee notes that each specific proposed advertisement herein was evidently prepared by or on behalf of the slate or political party, rather than by a judicial candidate. Thus, calling the slate a “team” and the accompanying request that voters vote for an entire row of candidates does not, alone, signify that a judicial candidate endorses the other candidates or requests voters to vote for others on the slate.

         The Committee concludes that a judicial candidate’s appearance in a joint advertisement, prepared on behalf of a slate of judicial and non-judicial candidates, is not impermissible merely because it characterizes the slate as a “team” and urges voters to vote for particular row(s) on the ballot on which the slate appears.

2. Judicial Candidate’s Use of a Disclaimer

         In Inquiry 13-153, the inquiring judicial candidate submits a complete copy of the draft slate advertisement for review,² and asks if he/she may be included on a campaign flyer along with four non-judicial candidates. All five seek office in the same municipality, and chose a name for their slate including the municipality’s name, but does not reveal a political party affiliation. The flyer displays a group picture of all five, and identifies each by name and position sought. Under the photograph, the flyer says, “We are asking for your vote on Tuesday, November 5.” and “Vote Row __ all the way!”

         Apparently concerned his/her inclusion in the flyer might be perceived as endorsing the other candidates, the inquiring judicial candidate placed an asterisk after his/her name, leading to the following footnote: “Under judicial campaign rules, [name] may not, and does not by this pamphlet, publicly endorse or oppose (except by running against) other candidates or take political positions on matters other than [his/her] own campaign.”

         Reviewing the advertisement, the Committee first notes that the advertisement does not appear to associate the judicial candidate with any statements which, on their face, would directly contravene a specific provision of the judicial campaign speech limitations found in the Rules Governing Judicial Conduct (see generally 22 NYCRR 100.5[A][1]-[5]). Thus, the Committee is not considering the effectiveness (if any) of adding a disclaimer to an advertisement which clearly and unambiguously contravenes applicable speech limitations.

         Under these circumstances, the Committee believes that the inquiring candidate’s voluntary choice to include the proposed disclaimer language indicating that he/she is not publicly endorsing other candidates is one effective way to create an additional “safe harbor” for the judicial candidate which helps dispel any possible confusion by voters about the candidate’s intentions in participating in the joint advertisement (see Opinion 91-107 [Vol. VIII] [noting that two judicial candidates on the same slate “may issue and distribute campaign literature in which both appear, especially if the literature carries the disclaimer that neither judicial candidate is endorsing any other candidate (emphasis added)”]).

         The Committee emphasizes that this, or similar disclaimer language is not mandatory for any judicial candidate in similar circumstances.

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     ¹ The term “non-judicial candidate” refers to an individual seeking election or re-election to non-judicial office (see 22 NYCRR 100.0[A] [defining “candidate”]).

     ² A judicial candidate with specific questions about the proposed content of his/her draft campaign advertisement should generally contact the Judicial Campaign Ethics Center as a first step (see http://nycourts.gov/ip/jcec/contactus.shtml).