December 13, 2012
Digest: A judicial candidate may not use funds raised for his/her Supreme Court race to make purchases which are exclusively related to his/her campaign for a different judicial position, but may use those funds to make generically useful purchases which could be used for either judicial campaign, assuming that the judicial candidate believes in good faith at the time of making the expenditures that his/her campaign for Supreme Court has not ended.
Rules: Judiciary Law §212(2)(l); 22 NYCRR 100.0(A); 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(a); 100.5(A)(5); 101.1; Opinions 11-87; 01-81; 97-80 (Vol. XVI); 92-68 (Vol. IX); 90-06 (Vol. V); 88-89 (Vol. II).
A judicial candidate who is seeking election to Supreme Court states that, after he/she raised “[s]ignificant funds” for the Supreme Court position, he/she was offered a political party’s endorsement for a different judicial position. Although the candidate would strongly prefer a Supreme Court seat, the candidate accepted the endorsement for the non-Supreme Court position for pragmatic reasons, and will therefore be pursuing the nomination for the non-Supreme Court position in the short term while still seeking a nomination for Supreme Court Justice several months later, in September. The candidate asks if he/she may continue to use the funds previously raised for his/her Supreme Court campaign pending his/her definitive nomination as either a candidate for Supreme Court or a candidate for the other court.
A judge or non-judge candidate for elective judicial office may personally participate in his/her own campaign for judicial office during his/her window period, subject to certain limitations (see generally 22 NYCRR 100.5[A][c]; 100.5[A]). Among other requirements, a judicial candidate must act in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][a]) and must not use or permit the use of campaign contributions for the private benefit of the candidate or others (see 22 NYCRR 100.5[A]).
The Committee has advised that after a judicial campaign has concluded, funds raised for that campaign may not be transferred or retained for use in another judicial campaign, whether for the same or a different office, even if the donors consent (see Opinions 01-81; 92-68 [Vol. IX]; 90-06 [Vol. V]; 88-89 [Vol. II]). Of particular note, the Committee reasoned that “the contributions were given for the candidate’s election to a specific judicial office and not for another office,” and that a donor who supported a candidate against one opponent “may not support [him/her] against a different opponent.” (Opinion 90-06 [Vol. V] (citing Opinion 88-89 [Vol. II]); cf. 22 NYCRR 100.5[A][a].
Here, too, a donor might consider the inquiring candidate well-suited for the Supreme Court position and not for the other judicial position; or a donor might prefer the inquiring candidate among those known to be vying for the Supreme Court position, but not against other opponents, i.e., those running for the other court. Thus, if the inquiring candidate had ceased his/her campaign for Supreme Court, and was only pursuing election to the other court, the candidate could not transfer the funds raised to finance his/her campaign for Supreme Court to the other campaign (see Opinions 01-81; 92-68 [Vol. IX]; 90-06 [Vol. V]; 88-89 [Vol. II]).
However, the circumstances here appear to present a matter of first impression for the Committee, because the inquiring judicial candidate has not entirely ceased his/her campaign for Supreme Court. To the contrary, the candidate has accepted a party’s endorsement for another court primarily for pragmatic reasons, and is still in good faith seeking the nomination for his/her preferred judicial position, that of Supreme Court Justice. Thus, the inquiring candidate is still a “candidate” for Supreme Court under the Rules Governing Judicial Conduct (see 22 NYCRR 100.0[A] [defining “candidate” as “a person seeking selection for or retention in public office by election”]) and may therefore, to the extent legally permitted, continue to engage in permissible political activity in furtherance of his/her candidacy during his/her window period (see generally 22 NYCRR 100.5[A][c]; 100.5[A]).
In the Committee’s view, under the circumstances presented, the inquiring judicial candidate may (to the extent legally permissible) continue to use the funds raised for his/her Supreme Court election campaign on any campaign activities and advertisements that directly or indirectly promote his/her Supreme Court campaign, as long as such activities or advertisements are not, on their face, exclusively in furtherance of the candidate’s other judicial campaign1 (see generally, e.g., Opinions 01-81; 92-68 [Vol. IX]; 90-06 [Vol. V]; 88-89 [Vol. II]). Thus, for example, the judicial candidate may use the funds to purchase generically useful campaign supplies or advertisements which could be used for either judicial campaign,2 or tickets to attend political events which would further the goal of either judicial campaign. Such use of campaign funds, if lawful, appears to honor the donors’ intentions and thus is consistent with the impartiality, dignity and independence of the judiciary (see 22 NYCRR 100.5[A][a]).
Under the circumstances presented, the Committee notes that the inquiring judicial candidate may, in his/her discretion and to the extent legally permissible, maintain a separate campaign account for the non-Supreme Court position. That is, if the candidate wishes to raise and/or use funds to pay campaign expenses exclusively related to his/her campaign for the non-Supreme Court judicial position (see note 1 supra), the Committee believes that a separate campaign account, if legally permitted, could help the candidate avoid inadvertently commingling or transferring funds from one campaign to the other (cf. Opinion 97-80 [Vol. XVI]).
However, the legal propriety of maintaining two campaign accounts or seeking two elective judicial offices simultaneously presents questions of law which this Committee has no authority to address (see Judiciary Law §212[l]; 22 NYCRR 101.1; Opinion 11-87).
1 The Committee notes that campaign expenses exclusively related to the inquiring candidate’s campaign for the non-Supreme Court judicial position could include, by way of example, expenses to circulate petitions bearing the candidate’s name; to cover primary election expenses, if any; or to purchase advertisements urging voters to elect the candidate to that specific court.
2 A “generic” campaign advertisement could state, for example, “Vote [Name] for judge,” without specifying the judicial office.