Judicial Campaign Ethics in New York State

By Laura L. Smith

[Originally published in NYPRR April 2008]

Jeremy Feinberg’s two-part article on Judicial Ethics in New York State (NYPRR, Sept. & Oct. 2007) introduced readers to the Judicial Campaign Ethics Center and discussed attorney involvement in a judge’s campaign for election or re-election. This is a presidential election year in which journalists and political commentators will closely monitor the candidates’ strategies and gaffes, and “politics as usual” can provide moments of high drama, so it seems appropriate to take some time to focus on the much less glamorous, but equally relevant, world of judicial elections. The distinctive ethics rules for judicial campaigns should be of interest not only to attorneys who aspire to judicial office, but also to those who may be asked to advise judicial candidates during their campaigns.

With little fanfare, judicial elections take place every year in most counties of the State of New York. There are well over 3,000 New York State judges, across the trial and appellate levels. Approximately three-quarters of all New York State judgeships are elective positions, with terms ranging from four to 14 years. Indeed, one of the most coveted seats is an elective one: a seat on the Supreme Court. A dispute over the system by which New York’s political parties select their nominees for Supreme Court Justice made it all the way to the U.S. Supreme Court. [See Lopez Torres v. N.Y. State Bd. of Elections, 128 S.Ct. 791 (2008), upholding the constitutionality of New York’s convention system.]

Yet even though some judicial campaigns in New York are fiercely contested, the tone of judicial campaigns is typically less dramatic than that seen in other races, and for good reason. After all, the candidates are seeking election to a position that requires a “judicial temperament,” which suggests, among many other things, an ability to put aside partisan preferences in order to decide cases on their merits.

Balancing Campaign Necessities with the Judicial Role

Since 1972, the Rules Governing Judicial Conduct have set forth ethical rules that apply to all candidates for elective judicial office, judges and non-judges alike, to help level the playing field in judicial races and maintain public confidence in the judiciary. Under the Rules, all candidates for judicial office “shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary.” [22 NYCRR 100.5(A)(4)(a).] More specific rules and advisory opinions spell out the details of an ethical framework that allows judicial candidates to compete fairly in elections without undermining the office they seek.

Significantly, in 2003, the Chief Judge convened a Commission to Promote Public Confidence in Judicial Elections (chaired by John Feerick and known as the “Feerick Commission”), to survey the current landscape of judicial elections in New York and make recommendations for improvement. The Feerick Commission held statewide public hearings, conducted citizen focus groups, sponsored a public opinion poll and a survey of judges, met with political leaders, addressed bar and judicial groups, testified before legislative committees, and heard from numerous individuals in meetings and correspondence. Several of the Feerick Commission’s recommendations have already been implemented, including a ban on using campaign funds to purchase campaign-related goods or services for which fair value was not received [22 NYCRR 100.5(A)(6)] and the creation of voter guides for judicial races (www.nycourts.gov/vote). Another three of the implemented recommendations will be discussed later in this article.

In the current political and ethical landscape, there are six main areas in which a judicial campaign differs markedly from other campaigns. Specifically, judicial candidates must:

1. Engage in campaign activity only during a “window period” which runs, roughly speaking, from nine months before the earliest date on which the candidate might obtain a party endorsement or formal nomination, until six months after his/her candidacy ends.

2. Select a committee of “responsible persons” to undertake any and all fund-raising activities on their behalf.

3. Eschew pledges or promises that are inconsistent with the impartial performance of judicial duties.

4. Refrain from publicly endorsing, opposing or making contributions to any political party or candidate for elective office, including other judicial candidates.

5. Adhere to a high standard of truthfulness, avoiding distortions as well as direct misstatements.

6. Maintain the dignity appropriate to judicial office, and otherwise act in a manner consistent with the impartiality, integrity and independence of the judiciary.

[See 22 NYCRR 100.0(A), (Q); 100.5(A)(1)(c)–(f), (h); 100.5(A) (2)(i), (v); 100.5(A)(4)(a); 100.5(A)(4)(d); 100.5(A)(5); Matter of Kulkin, NYS Commission on Judicial Conduct (3/23/06); Election Law 17-162; see generally 2008 Judicial Campaign Ethics Handbook §5 (available at http://www.nycourts.gov/reports/judicialcampaignethicshndbk.pdf).]

The remainder of this article will highlight several recently adopted rules, provide an overview of judicial campaign speech restrictions, and also discuss some emerging issues involving use of websites for judicial campaigns.

Campaign Ethics Training

Application of the ethics rules to specific campaign situations may be difficult, but the Commission on Judicial Conduct has made clear its view that ignorance of the rules “is no excuse.” [Matter of King, NYS Commission on Judicial Conduct (2/14/07).]

To help prevent inadvertent missteps which could undermine public confidence in the judiciary, the Administrative Board of the Courts adopted a rule suggested by the Feerick Commission requiring all candidates for state-paid judicial office — both judges and non-judges — to complete a campaign ethics training program during their current election cycle. [22 NYCRR 100.5(A)(4)(f).] A candidate who fails to complete the training at all, or fails to complete it in a timely manner, may be subject to discipline. [22 NYCRR 100.6(A); 1200.44 [DR 8-103].] Attorneys could potentially face a departmental disciplinary committee if their judicial campaign is unsuccessful or the Commission on Judicial Conduct if they ascend to the bench.

The rule is designed to encourage judicial candidates to take the training early in their current campaign cycle, even long before they secure the nomination. Because the ethical landscape regularly changes and develops, however, training taken during a previous campaign does not satisfy the requirement. In the past four months, for instance, the Advisory Committee on Judicial Ethics has published six opinions relating to judicial campaign ethics, covering topics such as holding raffles, appearing as guest of honor at a charitable fund-raiser, solicitation of donations on the internet, and use of screening panel decisions, newspaper photographs, and video recordings in campaign advertising. [NY Jud. Adv. Ops. 07-150 and 07-151; 07-139; 07-135; 07-90; 07-89; 07-88.]

The campaign ethics training must be completed no later than 30 days after the date of receiving the nomination. For candidates running in a primary, the date of nomination is defined as “the date upon which the candidate files a designating petition with the Board of Elections.” [22 NYCRR 100.5(A)(4)(f).] Thus, a candidate who waits until he/she secures a party nomination before taking the training has only 30 days to satisfy the requirement.

My office, the Judicial Campaign Ethics Center (www.nycourts.gov/ip/jcec ), is responsible for organizing the training and tracking compliance. There are four training program dates in 2008 (April 30, June 11, July 15, and Sept. 26). Those who cannot attend a live or simulcast training program during the appropriate period may register to take the training via video.

Limits on Tickets to Political Functions

Judicial candidates are prohibited from making direct or indirect contributions to political organizations or candidates. [Election Law 17-162; 22 NYCRR 100.5(A)(1)(h); 100.5(A)(6).] The Rules Governing Judicial Conduct nonetheless implicitly recognizes a “perceived necessity for candidates for judicial office to attend political dinners and functions during the course of the electoral season.” [NY Jud. Adv. Op. 98-107.]

Accordingly, under the Rules, a judicial candidate may purchase two tickets to, and attend, a politically-sponsored dinner or event, including a fund-raising event for other elected officials or candidates. [22 NYCRR 100.5(A)(2)(v).] The limits on the price and number of tickets for each event were instituted in 2006, in response to Feerick Commission recommendations. They set forth a bright-line rule that allows candidates to attend functions without “ascertaining in each and every instance whether there is a dollar-for-dollar equivalency between cost and price on a proportionate basis.” [NY Jud. Adv. Op. 98-107.]

A candidate may purchase tickets for $250 or less, as long as the other attendees are paying $250 or more per ticket. [22 NYCRR 100.5(A)(2)(v); Joint NY Jud. Adv. Op. 06-80/81; compare NY Jud. Adv. Op. 98-107, holding that a $3,000 dinner ticket could “only be regarded as an impermissible political contribution.”] A candidate may not pay more than $250 per ticket unless he or she obtains a statement from the sponsor of the event that the amount paid represents the proportional cost of the function. [22 NYCRR 100.5(A)(2)(v).] A judicial candidate also may not purchase tickets at a price higher than the price all other attendees are required to pay because that would be an impermissible political contribution. [22 NYCRR 100.5(A)(1)(h); Election Law 17-162.]

The two-ticket rule recognizes that a judicial candidate can be expected to attend political dinners or functions with his or her spouse, or other significant person. [NY Jud. Adv. Op. 02-50.] However, a candidate may not purchase more than two tickets, even if the price per ticket is below the $250 limit, because this could appear to be an impermissible political contribution. [Joint NY Jud. Adv. Op. 06-80/81; NY Jud. Adv. Op. 92-97.] Similarly, a judicial candidate may not purchase tickets for other persons, such as campaign committee members, to attend fund-raising events, because that too would “result[] in an appearance of making an improper political contribution.” [NY Jud. Adv. Op. 02-50.]

To date, the Advisory Committee on Judicial Ethics has not imposed any geographical restrictions on the political events a judicial candidate may attend during his/her window period.

Screening Panels

Another set of rules adopted in response to Feerick Commission recommendations provides for the creation of a statewide network of independent screening panels for judicial candidates, known as Independent Judicial Election Qualification Commissions. [22 NYCRR Part 150.] Starting in 2007, each judicial district has a Commission with 15 members, named by the Chief Judge, the Presiding Justices, the New York State Bar Association, and local bar associations.

The ethics rules provide that “Independent Judicial Election Qualifications Commissions, created pursuant to Part 150 of the Rules of the Chief Administrator of the Courts, shall evaluate candidates for elective judicial office, other than Town or Village Court.” [22 NYCRR 100.5(A)(7).] However, nothing in the ethics rules specifically requires judicial candidates to submit their credentials to these Commissions. Thus, the Advisory Committee on Judicial Ethics has held, there is no ethics violation should a judicial candidate decline to engage in the Commissions’ evaluation process. [NY Jud. Adv. Op. 07-91.] In 2008, the Commissions will publish alphabetical lists of candidates found qualified and not qualified. [22 NYCRR 150.5(e) (amended January 2008).]

Judicial candidates may inform the public about the Commission’s determination, and may reproduce and distribute an exact copy of the Commission’s press release. [22 NYCRR 100.5(A)(4)(d)(ii); NY Jud. Adv. Op. 07-150/07-151; see also “Statement of Ethical Guidelines for use of Commission’s Rating,” (http://www.nycourts.gov/ip/jced/Part150-EthicalGuidelines.pdf).]

Sitting judges may ethically respond to inquiries from a Commission about a specific candidate for elective judicial office because the rating that is eventually issued is not, and does not appear to be, the judge’s rating. [NY Jud. Adv. Op. 07-130.]

Financial Disclosures

State-paid judges and certain court employees in high-level or policy-making positions must file financial disclosure statements every year. 22 NYCRR Part 40. Until recently, however, judicial candidates were not required to file. In 2006, the Administrative Board of the Courts adopted a new administrative rule to close the gap. Candidates for state-paid judicial office who do not otherwise have to file a financial disclosure statement under Part 40 must now file these forms under Part 100 within 20 days of becoming a candidate. [22 NYCRR 100.5(A)(4)(g).] As elsewhere in the Rules, a “candidate” is defined as “a person seeking selection or retention in public office by election.” [22 NYCRR 100.0(A).] The definition requires a public manifestation of one’s candidacy, such as a public announcement or formation of a campaign committee, but not endorsement by a party. [Id.]

These financial disclosure forms (www.nycourts.gov/ip/ethics/forms.shtml) request detailed information about property and income over $1,000, as well as liabilities over $5,000, of the filer and his/her spouse and unemancipated children. They focus primarily on property and income, and expressly exclude campaign contributions and reimbursement for campaign expenditures. They are thus entirely distinct from, and in addition to, the campaign finance disclosure requirements imposed by statute and the board of elections regulations. [See e..g., N.Y. Election Law 14-108; 9 NYCRR 6200.2.]

Judicial Campaign Speech

A full discussion of the restrictions on judicial campaign speech is beyond the scope of this article, but I will discuss these restrictions briefly here because they go to the heart of the differences between judicial and nonjudicial campaigns.

A candidate may bring to the public’s attention, truthfully and without distortion, matters of public record about the candidate or his/her opponents. [22 NYCRR 100.5(A)(4)(d)(iii); 100.5(A)(4)(e); Matter of Kulkin, NYS Commission on Judicial Conduct (3/23/06).] Such facts include, but are not limited to, the qualifications, current position, political party affiliation, and public disciplinary history of the candidate and his/her opponents. [22 NYCRR 100.5(A)(1)(ii); 100.5(A)(4)(d)(iii); NY Jud. Adv. Op. 01-98.] The Commission on Judicial Conduct has made clear, however, that judicial candidates are held to a very high standard of truthfulness: “Distortions and misrepresentations have no place in campaigns for judicial office. Judicial candidates for judicial office are expected to be, and must be, above such tactics.” [See Matter of Kulkin, supra, imposing censure on a candidate who distorted his opponent’s record by omitting relevant facts regarding her handling of parking ticket matters.]

Although judicial candidates are not prohibited from announcing their views on disputed legal and political views, Republican Party of Minnesota v. White, 536 U.S. 765 (2002), they must nonetheless refrain from making promises or pledges of conduct in office that are inconsistent with impartial performance of adjudicative duties. [22 NYCRR 100.5(A)(a); 100.5(A)(4)(d)(i)-(ii).] Improper promises may be inferred from statements made in the entire context of the campaign, and do not necessarily involve the words “I promise.” [In re Watson, 100 N.Y.2d 290 (2003).] In the Watson case, the candidate repeatedly stated that he intended to “work with” and “assist” police and other law enforcement personnel in their law enforcement functions, and repeatedly showed bias against those accused of crimes.

The Court noted that his campaign statements, viewed as a whole, “amounted to a pledge to engage in conduct antithetical to the judicial role because judges do not ‘assist’ other branches of government — they are charged to apply the law impartially to every party appearing in court.” [Id.] A candidate who is an incumbent judge is further expressly prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories. [22 NYCRR 100.3(B)(8).]

By contrast, candidates may freely discuss, and even make promises about, administrative matters. [Cf. In re Watson, 100 N.Y.2d 290 (2003), suggesting that statements “related to administrative concerns, such as holding court in the evening or on weekends,” would be permissible.] If a candidate has ideas about improving access to the courts or courtroom procedures, increasing the speed and quality of judicial decision-making, or reducing waiting time for litigants, these and other such administrative concerns would be, in my view, ideal campaign issues.

Use of Internet in Judicial Campaigns

A judicial candidate’s campaign website is subject to the Rules Governing Judicial Conduct, including the rules governing judicial campaign speech. So far, only a few web-specific issues relating to links and online solicitation of donations have been formally addressed in New York.

First, although the candidate’s name may be listed along with the names of other candidates who make up the slate of which the candidate is a part, [22 NYCRR 100.5(A)(2)(ii)–(iv)], the candidate’s website should not link to sites of partisan political organizations, or parties or other candidates, as that would create an appearance that he/she was participating in, or endorsing, the political activity of another. [2001 Annual Report of the NYS Commission on Judicial Conduct; 22 NYCRR 100.5(A)(1)(c)–(f).]

Second, a judicial candidate may include a link on his/her campaign website to newspaper articles about him/her, provided that nothing contained in the article is misleading and provided that the article maintains the dignity of judicial office. [NY Jud. Adv. Op. 07-135.]

Finally, a candidate’s campaign committee may solicit campaign contributions on a campaign website it sponsors, provided that the contributors are directed to send all donations to the campaign committee and not to the candidate. [NY Jud. Adv. Op. 07-135.]

These opinions are fairly logical extensions of well-settled ethics rules, but it seems likely that additional internet-specific issues will surface over time. Candidates should write the Advisory Committee on Judicial Ethics or the Judicial Campaign Ethics Center for guidance if they have any doubts about a proposed use or application of their campaign websites.

Conclusion

Judicial campaigns, when conducted with integrity and dignity, seldom attract much media attention. It is worth paying attention, however, because judges are elected to positions of great public trust in New York; they make decisions that affect our everyday lives and protect our rights.

Laura L. Smith is the Executive Director of the Judicial Campaign Ethics Center. She would like to thank her colleague Jeremy Feinberg for his insight and suggestions that immeasurably improved this article. The views expressed in this article are those of the author only and are not those of the Office of Court Administration or the Unified Court System, or any department thereof.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Laura L Smith