Joint Opinion 91-27; 91-49

April 25, 1991

Digest:         A judge, running for re-election, may not agree to accept one political party’s designation conditioned upon declining any offer of nomination for the same position by another political party.

Rules:          22 NYCRR §§100.1; 100.2(a); 100.3(a)(1) ; 100.7(e)

Opinion:

         Incumbent judges, who are seeking re-election, ask whether they may accept a political party’s nomination, conditioned upon an agreement to decline any offer of nomination for the same position by another political party. The judges also ask whether this conditioned nomination affects non-incumbent judicial candidates.

         The Committee on Professional Ethics of the New York State Bar Association has held that “ . . . it is improper for a candidate for judicial office to agree with a political organization, as a condition to designation by its party, not to accept nomination of another political party.” Opinion No. 250 [30-72; May 24, 1972]) .

         The Court of Appeals, in Rosenthal v. Harwood, 35 N.Y.2d 469, 475 (1979) held that “the exaction of agreements against [judicial] cross-endorsement falls over the line into the forbidden area.” The court found that “the candidate’s obeisance to this rule must signify a lack of independence to make his own judgment whether another party is entitled to name him as candidate or whether he wishes to run as a candidate on the ticket of that other party. Hence, it would compel him to take a partisan position not essential to his candidacy under the present political system of selecting Judges by election.” Id. at 474. The case involved a party by-law limiting nominations to one who has agreed to refuse to accept the nomination of any other political party. The Court indicated that the by-law mandates “unethical conduct on the part of a candidate for judicial office, be he an incumbent judge or an aspirant for such office for the first time.” Id.

         In Donovan v. Board of Elections of Nassau County, 29 N.Y.2d 725, 726 (1971), the Court of Appeals admonished, “political organization leaders should not exact a promise of party loyalty from candidates for judicial office as a condition of support, and such candidates for judicial office as a condition of support, and such candidates should not make these promises in exchange for support.”

         Section 100.7(e) of the Rules of the Chief Administrator prohibits judges from engaging in any activity of a partisan political nature with exceptions not here relevant. Section 100.2(c) states that, “No judge shall lend the prestige of his or her office to advance the private interests of others.” Finally, Section 100.3(a)(1) states that, “A judge shall be unswayed by partisan interests, public clamor, or fear of criticism.”

         Although these inquiries come from incumbent judges, neither the Court of Appeals’ decisions nor the State Bar opinion make any distinction between incumbent judges and candidates who are not incumbents, thereby indicating that neither incumbent judges nor non-incumbent judicial candidates may enter into such agreements for a party designation. In the Rosenthal case, as noted above, the Court of Appeals indicated that such conduct would be unethical whether the candidate be “an incumbent judge or an aspirant for such office for the first time”. And in the Donovan case, the Court also said that “political organization leaders should not exact a promise of party loyalty from candidates for judicial office as a condition of support.