Opinion 05-99

September 8, 2005

Please Note: See Opinion 23-43 for additional guidance concerning joint advertisements.

Digest:         A candidate for judicial office may advertise with other candidates for elective office, including those running for non-judicial offices, provided that the candidate does not endorse any other candidate and pays no more than his or her pro rata share of the cost of the advertisements.

Rule:            22 NYCRR 100.5(A)(2)(iii); (A)(1)(e), (h); Opinions 01-99 (Vol. XVII); 02-100; Matter of Campbell, NYS Commission on Judicial Conduct, November 12, 2004.

Opinion:

         Several judicial candidates have asked whether it would be permissible to advertise with other candidates for elective office and whether the candidates may share advertising costs. In some instances, the inquiring judicial candidate would advertise with only one other candidate for non-judicial elective office, and, in other instances he or she would advertise with several other candidates who comprise the judicial candidate’s party slate. The advertising materials include such items as palm cards, lawn signs, flyers and billboards.

         Section 100.5(A)(2)(iii) of the Rules Governing Judicial Conduct states that a judge or non-judge candidate for judicial office may “appear at gatherings, and in newspaper, television, and other media advertisements with the candidates who make up the slate of which the judge or candidate is a part.” This provision, in our opinion, allows a judicial candidate to advertise with one, or more than one, candidate for election, including candidates for both judicial and non-judicial offices, provided that, in so doing, he or she does not, in the advertisements (or at any other time), publicly endorse any other candidate. 22 NYCRR 100.5(A)(1)(e); Opinion 01-99 (Vol. XVII); see also Matter of Campbell, NYS Commission on Judicial Conduct, November 12, 2004. In addition, a judicial candidate may share advertising costs with other candidates. However, the candidate may pay no more than his or her pro rata share of those expenses, because paying any higher amount would be deemed to constitute a contribution to another political candidate, which is prohibited. See, 22 NYCRR 100.5(A)(1)(h),Opinion 02-100.