Opinion 18-105
June 21, 2018
Digest: A Supreme Court candidate seeking a political party’s nomination may circulate a petition for the party’s slate of “uncommitted” judicial delegates, where none of the delegates on the petition is publicly committed to support any Supreme Court candidate but must make clear that his/her endorsement of such delegates is for the purpose of furthering his/her own candidacy.
Rules: 22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(1)(c)-(e); 100.5(A)(2); Opinions 14-133/14-134; 10-101/11-01; 08-157.
Opinion:
The inquiring judge is seeking election to Supreme Court in a multi-county judicial district and would like to carry petitions for a political party’s proposed slate of delegates to its judicial nominating convention.1 To the judge’s knowledge, “the party leadership in the various counties have proposed delegates and the candidates are not putting up their own separate slates of delegates.” However, the judge does not know if the party’s proposed judicial delegates would support him/her; they are apparently uncommitted at this stage. The judge fears that the party is not making sufficient efforts to pass petitions for the judicial delegates, and “if there aren’t enough signatures and delegates then there will not be a [judicial nominating] convention and thus it will be impossible for any [Supreme Court] candidate to be on the ballot.” The judge therefore asks if he/she may “carry petitions and get signatures to be sure there is a properly constituted convention where I will hopefully be nominated.”
A judge or non-judge candidate for elective judicial office may personally participate in his/her own election campaign during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][2]; 100.0[Q] [defining “window period”]; 100.0[A] [“A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy…”]). However, the candidate may not publicly endorse or publicly oppose (other than by running against) another candidate for public office (see 22 NYCRR 100.5[A][1][e]) and may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]).
Nonetheless, given the special challenges of the Supreme Court nomination process, the Committee has recognized one narrow exception to the rule against publicly endorsing other candidates (see Opinion 08-157). Since then, we have cautiously provided “guidance on the practical implications of this narrow exception” (Opinions 10-101/11-01; 14-133/14-134). For example, we have advised that a Supreme Court candidate “may, in furtherance of his/her own campaign, pass petitions containing the names of one or more delegate candidates who will support him/her, as long as those petitions do not contain the names of any other candidates and as long as he/she “make[s] clear that his/her endorsement of the delegate[s] is for the purpose of furthering his/her own candidacy” (Opinion 10-101/11-01, quoting Opinion 08-157).
Subject to similar limitations, we have said that a Supreme Court candidate may “contribute proportionally to the cost of a pre-primary mailing asking minor party voters to vote for a slate of minor party judicial nominating convention delegates who have pledged to support the candidate if he/she ultimately earns a place on the major party’s ballot line” (Opinion 14-133/14-134 [emphasis added]). We expressly noted that “these minor party judicial delegate candidates are not specifically and unconditionally pledged to support either of the inquiring candidates (or any other named candidate) at this time” (id. [emphasis added]). That is, the delegates were not, in fact, pledged to support any specific, identifiable candidate; their support was merely conditional.
Here, we again cautiously extend our prior opinions. We continue to believe a Supreme Court candidate should not circulate a petition that includes the name of a delegate candidate who is pledged to support another Supreme Court candidate, but not him/her. However, it appears that a party’s delegate candidates sometimes prefer not to make any public commitments before their election. In that case, there is little risk of public perception of improper political activity when a Supreme Court candidate who is seeking the party’s nomination passes a petition for the party’s slate of uncommitted delegates, provided he/she “makes clear that [his/her] endorsement is being made solely for the purpose of furthering [his/her] own candidacy” (Opinion 14-133/14-134; accord, Opinions 10-101/11-01; 08-157). This candidate, we note, is concerned the political party’s inaction will result in insufficient judicial delegates to hold a judicial nominating convention. On these facts, the candidate will clearly and directly further his/her own candidacy by passing petitions to ensure that the party will be able to hold its judicial nominating convention.
We thus conclude that a Supreme Court candidate seeking a political party’s nomination may circulate a petition for the party’s uncommitted slate of judicial delegates, i.e. where none of the delegates on the petition is publicly committed to support any specific Supreme Court candidate.2 As in prior opinions, the candidate must make clear that his/her endorsement of such delegates is for the purpose of furthering his/her own candidacy.
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1 Voters typically select their party’s judicial delegates in a primary election. Thereafter, the delegates meet at a judicial nominating convention to select the party’s Supreme Court nominee(s), who will be on the ballot in the general election (see e.g. Opinion 08-157).
2We note the Supreme Court candidate need not contact the delegates individually to verify their lack of public commitments.