September 10, 2015
Digest: Although a judicial candidate may not carry or pass petitions for other candidates or request petition signatures for other candidates, he/she may, to the extent legally permitted, attest as a notary public during his/her window period that he/she witnessed signatures on petitions carried or passed by another individual.
Rules: NY Const art VI § 20(b); Judiciary Law § 212(2)(l); 22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(1)(c)-(e); 100.5(A)(2); 100.6(A); 101.1; 1200, Rule 8.2(b); Opinions 13-111; 09-148; 03-42; 02-64; 98-99; 91-96; 91-94.
The inquiring non-judge candidate for election to judicial office is also a licensed notary public. He/she has received a nomination from multiple political parties, and is currently in the process of gathering signatures for individual and joint petitions on which he/she is a named candidate. The candidate has asked whether, during the applicable window period, he/she may authenticate individual and joint petitions that do not bear his/her name, in his/her capacity as a notary public.
A non-judge candidate for elective judicial office “shall comply” with applicable sections of the Rules Governing Judicial Conduct in connection with his/her judicial campaign (22 NYCRR 100.6[A]; see also 22 NYCRR 1200, Rule 8.2[b]). A judge or non-judge candidate for elective judicial office may participate in his/her own campaign for elective judicial office, subject to certain limitations (see 22 NYCRR 100.5[A]), but may not participate in any other candidate’s campaign for office and must not publicly endorse another candidate for public office (see 22 NYCRR 100.5[A][c]-[e]).
Passing Petitions / Requesting Signatures
The Committee has advised that passing petitions for a candidate constitutes partisan political activity (see Opinions 09-148; 02-64). Therefore, a judge or non-judge who is a candidate for elective judicial office may only pass joint or individual petitions that contain his/her own name (see Opinions 09-148; 03-42; 02-64; 98-99). In other words, a judicial candidate may further his/her own campaign by carrying joint and/or individual petitions that name him/her and requesting signatures on such petitions (see id.).
By contrast, a judicial candidate must not participate in the campaigns of other candidates, and therefore may not pass individual or joint petitions that do not contain his/her name as one of the candidates to be designated or nominated, or otherwise request signatures for other candidates when the petition does not include his/her own name (see Opinions 09-148; 02-64; 98-99; 91-96; 91-94; 22 NYCRR 100.5[A][c]-[e]).
The Committee concludes that, while the inquiring non-judge is a candidate for elective judicial office, his/her status as a licensed notary public does not exempt him/her from applicable sections of the Rules Governing Judicial Conduct or otherwise authorize him/her to engage in partisan political activity on behalf of other candidates. Thus, this inquiring candidate may not pass, or request signatures on, individual or joint petitions that do not include his/her name as one of the candidates to be designated or nominated (see Opinions 09-148; 02-64; 98-99; 91-96; 91-94; 22 NYCRR 100.5[A][c]-[e]).
Authenticating Petitions / Witnessing Signatures
To the extent the inquiring judicial candidate is asking if he/she may, during his/her judicial campaign, merely witness signatures and authenticate other candidates’ petitions, without personally carrying the petitions or requesting signatures, the Committee believes this is ethically permissible, assuming it is lawful (see Opinions 03-42; 98-99). The Committee emphasizes that another individual must physically carry the other candidates’ petitions and request signatures on those other candidates’ behalf, and the judicial candidate’s role must be strictly limited to witnessing the signatures and authenticating the petitions in his/her capacity as a notary public (see Opinions 03-42; 98-99).
In other words, although a judicial candidate may not, during his/her judicial campaign, request petition signatures for other candidates (see Opinions 09-148; 02-64; 98-99; 91-94; 91-96), there appears to be nothing inherently unethical in attesting that he/she witnessed signatures which were made at someone else's request (see Opinions 03-42; 98-99). In the case of a sitting judge who is permitted to serve as a notary public (see Opinion 13-111; NY Const art VI § 20[b]), this is permitted only during the judge’s applicable window period as a declared candidate for elective judicial office (see 22 NYCRR 100.0[A] [defining “candidate”]; 100.0[Q] [defining “window period”]).
The Committee cannot comment on any legal questions (see Judiciary Law § 212[l]; 22 NYCRR 101.1).