THE COURTS
Title 207--JUDICIAL CONDUCT
[207 PA. CODE CH. 33]
Formal Opinion 2000-1
[30 Pa.B. 2125] Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has adopted its Formal Opinion 2000-1 which is set forth as follows.
HOWLAND W. ABRAMSON,
Chairperson
Ethics Committee
Pennsylvania Conference of State Trial Judges
FORMAL OPINION 2000-1
Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges
Signing Nominating Petitions
Majority Opinion The Committee has received several requests for advice asking whether it is permissible for a judge to sign a candidate's nomination petition. Because of the importance of this issue throughout the Commonwealth, the Committee issues this Formal Opinion. A bare majority of the Committee is of the opinion that signing a nomination petition is prohibited; a minority of the Committee is of the opinion that signing a nomination petition is permitted.
Candidates for elective office who wish to have their names placed on the ballot for the primary election of a major political party must obtain a certain number of signatures of the voters of the party on a nomination petition. See generally 25 P. S. sections 2862, 2869.
Code of Judicial Conduct 7A (1)(b) prohibits a judge or candidate for judicial office from publicly endorsing a candidate for public office except as authorized by section 7A (2). Code of Judicial Conduct 7A (2) permits a judge holding an office filled by public election between competing candidates, or a candidate for such office, among other things, ''to speak on behalf of any other judicial candidate for the same office.''
Code of Judicial Conduct 7A (4) prohibits a judge from engaging ''in other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.''
A majority of the Committee joins the Florida Committee and concludes that a judge may not sign a candidate's nomination petition. Florida Committee on Standards of Conduct for Judges Opinion 92-32. A majority of the Committee declines to follow other committees which have permitted signing.1
Signing a nomination petition is the legal equivalent of a public endorsement and public endorsements are prohibited by Code of Judicial Conduct 7A (1)(b). Signing a nomination petition is not similar to exercising the right to vote.2 For example, voting is private. In contrast, a nomination petition is public; it is filed with the Department of State and is available for public inspection.
Moreover, the demographics of Pennsylvania suggest that signing nomination petitions would in most, if not all, judicial districts of small population be more likely to produce more harm than good and it is not appropriate for the conduct in question to have two entirely opposite results depend solely upon the size of the population of a judicial district.
The election process routinely causes or leads candidates to seize upon whatever tactical advantages exist without regard for undesirable collateral effects. When a judge signs a nomination petition often, especially in judicial districts with small populations, the candidate may publicize it as an endorsement regardless of the signer's intent. Because the judge in exercising the right to sign a nomination petition may prove to be one of the many casualties of an election war despite the judge's best efforts to stay off the field of battle, a uniform prohibition on signing nomination petitions is required.
Further, signing a nomination petition is prohibited as other political activity under Code of Judicial Conduct 7A (4).
Therefore, a majority of the Committee concludes that a judge is prohibited from signing a nomination petition.
Dissenting Opinion A substantial minority of the Committee is of the opinion that a judge may sign a nomination petition of a candidate.3 This opinion agrees with the clear majority of other ethics committees which have addressed the issue. New York (Advisory Committee on Judicial Ethics Opinion 89-89), Tennessee (Opinion 90-4), New Mexico (Judicial Advisory Opinion 96-01), Michigan (Judicial Tenure Commission Advisory Opinion 25 (July 23, 1981)), and Arizona (Judicial Ethics Advisory Opinion 96-7) all permit signing a nomination petition.
Signing a nomination petition is not the legal equivalent of a public endorsement. It is merely an act to permit a candidate to stand for election in a primary. It is similar to exercising the right to vote. New York (Advisory Committee on Judicial Ethics Opinion 89-89); New Mexico (Judicial Advisory Opinion 96-01); Arizona (Judicial Ethics Advisory Opinion 96-7).
The Arizona Judicial Ethics Advisory Opinion 96-7 states:
A nominating petition does not contain a promise to vote for the nominee or any endorsement of the nominee. The restriction on the number of petitions that any given elector may sign appears to be a device to ensure the earnestness of signatories and does not imply an endorsement. Accordingly, we find nothing inappropriate in the signing of a petition. Such activity is normal participation in the political process by a voter that Canon 5A intends to permit.Moreover, the right to vote is a fundamental right. A Code of Judicial of Conduct provision which infringes upon a judge's fundamental right may be unconstitutional. E.g., Matter of Sanders, 955 P.2d 369 (Wash. 1998) (First Amendment right outweighs Canons of Judicial Conduct).
The possibility that candidates may publicize the judge's signing as evidence of the judge's support is not sufficient to restrict judges from exercising their rights. A judge should not be stripped of the right to sign a nomination petition merely because candidates may improperly exploit the situation; the judge's right should not be lost because of the conduct of others.
Not all political activity is prohibited by Canon 7. Canon 7A (4) is a ''catch-all'' provision which prohibits a judge from engaging in political activity other than the activities specifically prohibited or permitted in Canon 7A (1) through 7A (3), and other than measures to improve the law, the legal system, or the administration of justice. The title to the Canon itself says that ''a Judge should refrain from political activity inappropriate to his judicial office.'' Furthermore, Canon 7A (1)(b) and (c) specifically except from the prohibitions contained therein the activities authorized by Canon 7A (2). Canon 7A (2) authorizes the activities therein described for ''[a] judge holding an office filled by public election between competing candidates . . .'' This is every judge in Pennsylvania, because all judicial offices in Pennsylvania are filled by such public election. In addition, voting is part of the political process, yet obviously, it also is not prohibited by the ''other political activity'' mentioned in Canon 7A (4).
The political activity forbidden by Canon 7A (4) is activity, other than that specifically prohibited or authorized by Canon 7, which is designed to persuade others to achieve a political result. Simply signing a nomination petition is not activity designed to persuade others to achieve a political result. It is a simply an act of one individual which when combined with the similar and independent acts of a sufficient number of other individuals permits a candidate's name to be placed on the ballot. By signing, a judge is acting as an individual, not as a judge, and he or she is not attempting to persuade others to sign the candidate's nomination petition any more than the act of voting is an attempt to persuade others to vote for a particular candidate.
In contrast, a judge may not solicit others to sign a nomination petition and may not circulate a nomination petition. Accord New York (Advisory Committee on Judicial Ethics Opinion 89-89); contra New Mexico (Judicial Advisory Opinion 96-01). Those activities are attempts to influence others which are political activities forbidden by Canon 7A (4).
[Pa.B. Doc. No. 00-692. Filed for public inspection April 28, 2000, 9:00 a.m.] _______
1 Arizona (Judicial Ethics Advisory Opinion 96-7) permits signing under certain circumstances. New York (Advisory Committee on Judicial Ethics Opinion 89-89), which permits signing, prohibits participation in any political campaign, but unlike Pennsylvania, does not expressly prohibit publicly endorsing a candidate. Tennessee (Opinion 90-4), which permits signing, prohibits publicly endorsing a candidate and taking a public position on political issues. New Mexico (Judicial Advisory Opinion 96-01), which permits signing, has a less restrictive prohibition on endorsing than Pennsylvania. New Mexico prohibits publicly endorsing a candidate through the news media or in campaign literature. Michigan (Judicial Tenure Commission Advisory Opinion 25 (July 23, 1981)), which permits signing, unlike Pennsylvania does not have an express general prohibition against political activity.
2 Although the majority is aware that other committees have concluded otherwise, e. g., New York (Advisory Committee on Judicial Ethics Opinion 89-89); New Mexico (Judicial Advisory Opinion 96-01); Arizona (Judicial Ethics Advisory Opinion 96-7), the majority of the Committee rejects that view.
3 We do not agree with the single committee, Florida's committee, which has expressed a contrary view. Florida Committee on Standards of Conduct for Judges Opinion 92-32.
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