December 11, 2018
Digest: A candidate for judicial office may not respond to a questionnaire which, when seen as a whole, can only be seen as a series of implied pledges, promises, and commitments, touching on a wide variety of closely interrelated issues that may come before the judge if elected or re-elected.
Rules: 22 NYCRR 100.0(Q); 100.3(E)(1)(f); 100.3(F); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 18-95; 15-71; 12-129(A)-(G); Republican Party of Minnesota v White, 536 US 765 (2002); Matter of Watson, 100 NY2d 290 (2003).
A judge in his/her window period for election or re-election asks if he/she may answer the NYS Right to Life Committee’s judicial candidate questionnaire. In an introductory paragraph, the questionnaire invokes Republican Party of Minnesota v White, 536 US 765 (2002), as authority for its efforts “to elicit candidates’ views on issues of vital interest to the [party’s] constituents ... without subjecting candidates answering its questions to accusations of impartiality [sic] or requiring candidates to recuse themselves in future cases.” Each question repeats a pro forma disclaimer purporting to “[r]ecogniz[e] the judicial obligation to follow binding precedents of higher courts and applicable constitutional and statutory provisions, to honor stare decisis, and to decide any future case based on the law and facts of that case,” followed by a broad, bold-faced statement of a personal view the Right to Life Committee wishes the candidate to avow. Those bold-faced statements provide a detailed, interrelated series of positions on topics such as abortion, assisted suicide, in vitro fertilization, the beginning and end of life, and the definition of personhood. Several bold-faced statements invite the candidate to object, in advance, to certain potential rulings of higher courts concerning the state and/or federal constitutions on these issues. For each statement, the judicial candidate must select “agree,” “disagree,” “undecided,” or “decline.” The questionnaire defines “decline” as indicating “a belief in good faith that under a reasonable construction of the Canons of Judicial Conduct or because my recusal would be subsequently required, I must decline to respond to this particular question.”
In general, a judicial candidate may personally participate in his/her own judicial campaign during the designated window period, subject to limitations (see 22 NYCRR 100.0[Q]; 100.5[A][c]; 100.5[A]). For example, the campaign must be conducted consistent with the judiciary’s impartiality, integrity and independence (see 22 NYCRR 100.5[A][a]), and all campaign statements must be entirely truthful and not in any way misleading (see 22 NYCRR 100.5[A][d][iii]; Opinion 12-129[A]-[G]). A judicial candidate may not make pledges or promises of conduct in office at odds with impartial performance of judicial duties (see 22 NYCRR 100.5[A][d][i]) nor make improper promises about controversies, cases, or issues likely to come before the court (see 22 NYCRR 100.5[A][d][ii]). Finally, a judge also must (22 NYCRR 100.3[E][f]):
disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: ... (f) the judge, while a judge or while a candidate for judicial office, has made a pledge or promise of conduct in office that is inconsistent with the impartial performance of the adjudicative duties of the office or has made a public statement not in the judge's adjudicative capacity that commits the judge with respect to (i) an issue in the proceeding; or (ii) the parties or controversy in the proceeding.
In addressing New York’s pledges and promises clause, the Court of Appeals stated: “A candidate’s statements must be reviewed in their totality and in the context of the campaign as a whole to determine whether the candidate has unequivocally articulated a pledge or promise of future conduct or decision making that compromises the faithful and impartial performance of judicial duties” (Matter of Watson, 100 NY2d 290, 298 ). In Opinion 15-71, we advised that a judicial candidate may express his/her own personal views on matters related to abortion during the interview process with a pro-choice or pro-life advocacy organization, provided that he/she does not make prohibited pledges, promises, or commitments. Also, candidates who choose to share their views should make clear they will decide all cases fairly and impartially and in accordance with governing law (see Opinion 15-71). Most recently, we advised a judicial candidate not to answer a political party’s questionnaire if the questions elicit express and implied pledges, promises or commitments that (a) are unrelated to the impartial performance of judicial duties and/or (b) would require him/her to engage in activities prohibited by the Rules Governing Judicial Conduct (see Opinion 18-95).
The Right to Life questionnaire at issue here, when viewed as a whole, is clearly designed to elicit a series of implied pledges, promises, and commitments, touching on a wide variety of closely interrelated issues that may come before judges at every level of the judiciary. Therefore, a judicial candidate may not respond (see 22 NYCRR 100.5[A][d][i]-[ii]). We further foresee a candidate’s impartiality being “reasonably be questioned” in a wide variety of cases involving judicial discretion1 if he/she agreed to the bold-faced statements on the questionnaire; the likely frequency of disqualifications under Section 100.3(E)(1)(f) further underscores the impropriety of responding to the questionnaire.
Therefore, the judge must decline to respond.
1 For example, such issues might arise in a breach of contract case concerning destruction of frozen embryos; in an insurance or estate matter hinging on the time of death of an individual who entered into a persistent vegetative state; or in sentencing a defendant convicted of murdering a pregnant woman whose baby was not born alive.