Judicial Campaign Ethics for Magistrates The Rules Governing Judicial Conduct (22 NYCRR part 100) Laura L. Smith, Esq., Chief Counsel of the ACJE Sandra H. Buchanan, Esq., Special Counsel for Ethics for OCA

How to Get Help on Judicial Campaign Ethics Issues For all judicial candidates: Judicial Campaign Ethics Handbook Expedited Advisory Opinions: Informal Advice: call Website: 2

How to Get Help (cont’d) Judges may also contact the ACJE for both campaign and non-campaign issues. Telephone: Website: NO Please note: The ACJE meets to consider ethics inquiries seven times per year. 3

Section 100.5: The Basic Rule A judge or candidate for elective judicial office shall refrain from inappropriate political activity. 4

“Always Permitted” Political Activities Judges may, at any time: enroll in and be a member of a political party; “test the waters”; vote in primary and general elections. 5

Rule 100.0(Q): The Window for Political Activity A candidate for judicial office’s “window period” begins 9 months before the earliest of: a primary election, judicial nominating convention, party caucus or other party meeting for nominating candidates. 6

Rule 100.0(Q): Window Period – Termination If on the ballot, ends 6 months after the general election. Otherwise, it ends 6 months after the primary election, convention, caucus or meeting. 7

Becoming a Candidate… Making a public announcement of candidacy or Authorizing solicitation or acceptance of Contributions, including…  Forming a Campaign Committee  Opening a Campaign Account 8

Is this testing the waters? Can a sitting judge write to a public official who has the power to make an interim appointment seeking consideration for a non-judicial elective office that appears to be vacant and will likely be filled by the public official? See Opinion ; cf. Opinion (resign to run rule). 9

“Always Prohibited” Political Activities Judges and judicial candidates may not: Publicly endorse another candidate; Make speeches on behalf of a political organization or another candidate; Publicly oppose (other than by running against) another candidate; Engage in any partisan political activity (except by participating in their own campaign for judicial office). 10

“Always Prohibited” Political Activities Judges and judicial candidates may not: Lead or hold office in a political organization; Pay an assessment to or make a contribution to a political organization or another candidate; Personally solicit funds for any political candidate or organization (including their own campaign). 11

Rule 100.5(A)(2): Permissible Activities As a candidate for public election to judicial office within your window period, you may: Participate in your own campaign; Contribute to your own campaign; Engage in other permissible activities, such as... 12

Rule 100.5(A)(2)(i)-(iii): Permissible Activities You may, during your window period: Attend and speak at gatherings on your own behalf (but you cannot solicit funds); Appear in advertisements, distribute pamphlets and other promotional campaign materials supporting your candidacy. 13

Rule 100.5(A)(2)(iii)-(v): Permissible Activities You may, during your window period: Appear with a slate of candidates at gatherings or in advertisements; Include your name on election materials with names of other candidates; Attend political events, subject to limitations on the price and number of tickets. 14

Purchasing Tickets to a Politically Sponsored Function You may purchase two tickets to, and attend, politically sponsored functions, provided that the cost must not exceed the proportionate cost of the function. $250 or less: presumed proportionate; more than $250: prohibited unless candidate obtains statement from sponsor that the amount paid is the candidate’s proportionate cost. 15

How to Raise Funds? See Rule 100.5(A)(5) You may contribute to your own campaign as permitted by law. You may not personally solicit or accept any campaign contributions. You may establish a committee of “responsible persons” to solicit and accept reasonable campaign contributions from the public, including lawyers, during the window period. 16

Rule 100.5(A)(5): Campaign Committee Although you may personally engage in these activities, you may also authorize a committee to: conduct your campaign through media advertisements, brochures, mailings, candidate forums; manage the expenditure of funds; obtain public statements of support. 17

Rule 100.5(A)(5)-(6): Prohibited Expenditures Use of campaign contributions for your private benefit or for the private benefit of others. Use of campaign contributions or personal funds for campaign-related goods or services for which fair value was not received. 18

Rule 100.5(A)(4)(a): Judicial Campaign Speech As a judicial candidate, you must: Maintain the dignity appropriate to judicial office; Act in a manner consistent with the judiciary’s impartiality, integrity and independence. 19

Rule 100.5(A)(4)(d)(i)-(ii): Judicial Campaign Speech A judicial candidate must not: Make improper pledges or promises of conduct in office; or With respect to cases, controversies, or issues that are likely to come before the court, make improper commitments. What do we mean by improper? We mean that it is “inconsistent with the impartial performance of the adjudicative duties of the office.” 20

Rule 100.5(A)(4)(d)(iii) & (e): Judicial Campaign Speech As a judicial candidate: You must not knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning yourself or your opponent; You may respond to personal attacks or attacks on your record, consistent with judicial campaign speech obligations. 21

Rule 100.5(A)(4)(a)-(c): Indirect Political Activity As a judicial candidate, you must: Encourage family members to adhere to the same standards of conduct in their support of you. Prohibit employees and officials who serve at your pleasure, and discourage those subject to your direction and control, from doing on your behalf what you cannot do under Part 100. Not authorize or knowingly permit anyone to do for you what you cannot do under Part 100.  Exception: You may authorize a committee of responsible persons to raise funds on your behalf 22

Two Judicial Candidates… Town Justice Ted Jones is seeking re- election and would like to engage in certain joint campaign activities with a non-judge candidate for judicial office Nancy McClancy in the same Howard Town Court where the Town Justice currently presides. May the candidates print and display campaign law signs “Candidate Jones/Candidate McClancy for Howard Town Justice”? See Opinion

Jones & McClancy continued… May the two candidates have joint letterhead to communicate with residents? See id. Appear on the same designating petition? Or same political literature? See Opinion Appear together door-to-door circulating the designating petition? See Opinion

Jones & McClancy continued… May Town Justice Jones witness signatures on their joint nominating petition? See Opinion May the candidates circulate individual nominating petitions of other candidates? See id. May Town Justice Jones, who is also a Notary Public, authenticate a nominating petition of any political party as a Notary Public? See Opinion Nancy McClancy is a former elective town justice. Can her campaign literature state: “Vote for Judge McClancy” or “Re-elect Judge McClancy”? See Opinion

Jones & McClancy continued… May the two candidates participate in a joint fund-raiser sponsored or financed by their individual campaign committees? See Opinion May they establish a single committee to finance their election campaigns? See Opinion May the candidates permit their campaign committees to establish Facebook connections with each other and the campaign committees of other candidates on the same slate? See Opinion

Questions about your own prospective conduct… Judicial Candidates (Part 100.5) Judicial Campaign Ethics Center Judges (Part 100)Advisory Committee on Judicial Ethics