January 28, 2016
Digest: A judicial candidate may not sign a political organization’s pledge that requires the candidate to support and endorse all other candidates endorsed by the organization and to consult with it on any appointments when in public office.
Rules: 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(B)(1); 100.3(C)(3); 100.5(A)(1)(c)-(e), (h); 100.5(A)(2); 100.5(A)(2)(i)-(v); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(ii); Opinions 15-71; 13-92; 05-119.
A judicial candidate asks if he/she may sign a pledge proffered by a local political party committee, as a prerequisite for the committee’s endorsement. By signing, the candidate would pledge to “support” and “add my endorsement to” all candidates endorsed by the party committee, just “as I would wish them to support me,” and to “[c]onsult with the committee on any appointments when in public office.”
Campaign Pledges, Generally
A judge or non-judge candidate for elective judicial office must act in a manner consistent with the dignity, impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][a]), and may not make pledges, promises or commitments inconsistent with the impartial performance of adjudicative duties of the office (see 22 NYCRR 100.5[A][d][i]-[ii]).
A judicial candidate may pledge to act in a manner consistent with the Rules Governing Judicial Conduct (see Opinion 05-119). For example, the Committee has advised that a judicial candidate may sign a “Statement of Principles” pledging an intent “to use fair campaign principles throughout the campaign” (id.). With respect to a proposed pledge to “discuss the issues and participate in a fair debate with respect to his/her views and qualifications,” the Committee advised the candidate to inform the issuing organization “that his or her participation in any debates” is subject to standards and requirements set forth in the Rules (id.).
In Opinion 15-71, the Committee advised that a judicial candidate may, subject to certain limitations, participate in a single-issue organization’s interview process, answer questions during the interview, and, if offered, accept the organization’s endorsement. As the Committee cautioned (id. [citations omitted]), the candidate:
may not agree to any unacceptable “conditions” to the endorsement or support, such as a request that the candidate decline endorsement by particular organizations or political parties, or a request to make a pledge or promise of conduct in office inconsistent with the impartial performance of adjudicative duties.
With these principles in mind, the Committee turns to the specific pledges at issue here.
Pledge to Support and Endorse Other Candidates
Although a judicial candidate may personally participate in his/her own campaign for elective judicial office within the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A]; 100.0[Q] [defining “window period”]), he/she may not otherwise “directly or indirectly” engage in “any partisan political activity” or “any political campaign for any office” (see 22 NYCRR 100.5[A][c]-[d]). For example, a judicial candidate may not publicly endorse or publicly oppose, other than by running against, another candidate (see 22 NYCRR 100.5[A][e]), and may not make contributions to other candidates or to political organizations (see 22 NYCRR 100.5[A][h]).
Here, the pledge calls for a judicial candidate to “support” and “add my endorsement to” all candidates endorsed by the local political party committee, “as I would wish them to support me.” This is clearly impermissible (see 22 NYCRR 100.5[A][c]-[e], [h]). The candidate therefore may not sign such a pledge (see Opinions 15-71; 05-119; 22 NYCRR 100.5[A][d][i]-[ii]).1
Pledge to Consult with a Political Organization on Appointments If Elected
As a pledge to “[c]onsult with the committee on any appointments when in public office” involves conduct in office, it is necessary to consider the rules applicable to sitting judges. A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). To that end, a judge must not allow political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must not be swayed by partisan interests (see 22 NYCRR 100.3[B]). Moreover, a judge must exercise his/her power of appointment impartially and on the basis of merit, avoiding nepotism and favoritism (see 22 NYCRR 100.3[C]).
The Committee has advised that a judge may not meet privately with a political organization to discuss “the inner workings of the ... court’s procedures, decisions and personnel” as “[t]he public would almost certainly infer that the political party is attempting to exert influence over court policy and the judge’s judicial decisions.” (Opinion 13-92). Here, too, the proposed conduct - consulting with a political organization concerning appointments while in judicial office - is also inconsistent with the impartial performance of a judge’s duties (see Opinion 13-92; 22 NYCRR 100.2[B]-[C]; 100.3[B]) and would create, at the very least, an appearance of nepotism and favoritism in appointments (see 22 NYCRR 100.3[C]). Therefore, the candidate may not pledge or promise such conduct (see Opinions 15-71; 05-119; 22 NYCRR 100.5[A][d][i]-[ii]).
In conclusion, this judicial candidate may not sign the proposed pledge to support and endorse all other candidates endorsed by the political organization and to consult with it on any appointments when in public office, as such conduct is inconsistent with the Rules.
1 The candidate may, of course, attend and speak to gatherings on his/her own behalf; appear at gatherings, in campaign advertisements, and on election materials with other members of his/her slate; and pay to attend politically sponsored functions subject to certain limitations on the price and number of tickets (see generally 22 NYCRR 100.5[A][i]-[v]).