December 1, 2020
We respond to your inquiry (20-114) concerning your campaign conduct. We understand you and another candidate are vying for election to a judicial office neither currently holds; the incumbent is not seeking re-election. Your opponent is a high-level employee of a governmental office or agency that appears in the court to which you seek election, but does not head the agency. You ask us to review the following issues:
1. May you pledge that you “will make decisions and appointments without regard to a. political affiliation; b. cronyism c. nepotism”?
2. May you directly comment on “a pattern” of appointments by the incumbent judge which, in your view, reflects (i) “political affiliation, nepotism and favoritism” and (ii) exclusion of “attorneys of color and women from appointments”?
3. May you pledge to “strive to appoint women attorneys and attorneys of color” to Part 36 positions?
4. May you pledge to “make an outreach to various associations to increase participation in the Part 36 lists,” if and to the extent there are no attorneys of color on the lists?
5. May you point out, that according to the Part 36 data, only 10% of appointments over the last 20 years have gone to women?
6. May you “pledge to abide by the Part 36 rules with regard to appointments and the setting of fees”?
7. May you point out, based on your review of public filings, audits and/or cases, that the agency where your election opponent is employed has sought and received compensation, approved by the incumbent judge, contrary to what a well-known legal treatise says is permitted by law?
8. May you point out, based on your review of public filings, audits and/or cases, that in “numerous” cases, the total compensation for the agency where your election opponent is employed (as approved by the incumbent judge) has violated “the spirit if not the letter” of New York’s guidelines for such agencies?
A judge or non-judge candidate for elective judicial office is subject to applicable provisions of the Rules Governing Judicial Conduct throughout the course of his/her campaign (see 22 NYCRR 100.5[A]; 100.6[A]; cf. 22 NYCRR 1200, Rule 8.2[b] [lawyers who are candidates for judicial office]) and therefore must “act in a manner consistent with the impartiality, integrity and independence of the judiciary” (22 NYCRR 100.5[A][a]). 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, a judicial candidate may appear in media advertisements and distribute pamphlets and other campaign literature (see 22 NYCRR 100.5[A][i]-[iii]), but must not “knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent” (22 NYCRR 100.5[A][d][iii]). A judge must exercise the power of appointment “impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C]). Part 36 similarly provides that a judge must make appointments “on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0).
We have said judicial candidates must take particular care to ascertain the truth of all claims they make about their election opponents and make every effort to avoid misleading the public with mere speculation or innuendo (see Opinion 19-112). For example, in Opinion 12-129(A)-(G), a candidate noticed his/her
incumbent opponent had handled less than one-third of the court’s
caseload in a two-judge court. The candidate thus proposed to say it “is time we establish a fair distribution of the workload” of the court and pledge to do a “fair share” of the court’s work (id.). We noted the proposed statements, though based on statistics, could be improperly speculative and misleading. In particular, we observed (id. fn 5 [citations omitted]):
if there has been no published administrative or disciplinary determination that a judge is “shirking” his/her judicial duties, the inquiring candidate should carefully consider whether there may be other reasons for a seemingly imbalanced caseload in a particular court.
With this background, we now turn to the specific statements you ask about here.
Statements 1-5. You are advised that while you are required to adhere to certain standards in making appointments, statement 2 and statement 5 may improperly imply that the current judge of that court, who is not your opponent, has made appointments of friends and family without proper regard to their qualifications.
You are further advised that statement 3 is ethically impermissible to the extent it suggests that appointments will be made on the basis of race or gender, rather than on the basis of merit (see 22 NYCRR 100.3[C]; Opinions 15-23; 14-147; 11-43; 07-128; 05-125). You may encourage attorneys to seek qualification and listing on appointment eligibility lists, however, you may not promise to appoint them as a quid pro quo for support of your candidacy.
Statement 6. A judicial candidate may not make pledges or promises of conduct in office that are at odds with the impartial performance of the duties of judicial office (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]). Thus, you are advised that you may pledge to abide by Part 36 with regard to appointments and setting of fees. You are advised that this statement is related to the faithful and impartial performance of judicial duties.
Statements 7-8. You are advised that you may not use statements 7 and 8 in your campaign materials, because while you
may comment on your opponent’s qualifications, as long as your comments are accurate and not misleading, the incumbent judge is not your opponent for the judicial seat you seek. The Committee observes that your statements contain allegations that appear to indirectly criticize the work of the incumbent judge.
Very truly yours,
Hon. Margaret Walsh
Justice of the Supreme Court
Hon. Lillian Wan
Acting Justice of the Supreme Court