December 3, 2015
Digest: A newly appointed judge, who previously ran for a non-judicial elective office, may dispose of the remaining unexpended non-judicial campaign funds by donating them to charity, provided doing so is lawful.
Rules: 22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(ii); 100.5(A)(1)(h); 100.5(A)(2); Opinions 14-146; 14-117; 09-48; 08-151; 08-72; 06-147; 04-140; 03-61; 93-15; 92-94; 87-02.
A newly appointed judge, who previously ran for election to a public office in the executive or legislative branch, asks if he/she may donate about $10,000 of unexpended campaign funds from a prior non-judicial campaign account to a non-political charity so that he/she may close the account.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not directly or indirectly engage in any political activity, except as expressly permitted under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A]).1 Among other prohibitions, a sitting judge may not make contributions to any political organization or candidate (see 22 NYCRR 100.5[A][h]).
The Committee has advised that unexpended campaign funds from prior non-judicial campaigns must not be used for a present judicial campaign, for general party use, or for the campaigns of other candidates sharing the ballot with the judicial candidate (see Opinions 93-15; 92-94). Indeed, the Committee has advised that a non-judge seeking election to judicial office must return any such unexpended campaign funds from prior non-judicial campaigns pro rata to contributors (see Opinions 93-15; 92-94).
The Committee has also recognized that strict compliance with the pro-rata-return rule may be impracticable in some cases, because candidates for non-judicial office sometimes retain political contributions from multiple races over extended periods of time (see Opinion 03-61). Thus, the Committee has advised that, subject to any applicable provision of the Election Law, a judge who was actively raising funds to finance a campaign for re-election to a non-judicial office just prior to his/her appointment to the bench may return monies remaining in the judge’s non-judicial campaign account pro rata “only to those who most recently contributed to the judge’s campaign for non-judicial office” (see id. [noting that these funds should be disposed of “as soon as practicable, so as to avoid any claim that the judge is engaged in prohibited political activity”]).
However, the Committee has not previously been asked to consider whether a judge who was recently appointed to judicial office may donate unexpended campaign funds from prior non-judicial campaigns to not-for-profit charitable organizations rather than attempting to return them pro rata to contributors.2
Although the Rules prohibit a judge or judicial candidate from contributing campaign funds from a judicial campaign to charity (see Opinions 14-146; 08-151; 87-02), and a sitting judge may not make contributions to any political organization or candidate (see Opinions 14-117; 92-94; 87-02; 22 NYCRR 100.5[A][h]), the Committee has consistently advised that a sitting judge may contribute his/her own personal funds to a wide variety of non-political not-for-profit organizations and causes (see Opinions 14-117; 09-48; 04-140). The Committee can see no reason to prohibit a newly appointed judge from disposing of unexpended campaign funds from a prior non-judicial campaign by donating them to a not-for-profit charitable organization of the judge’s choice, provided it is lawful to do so. This should be done “as soon as practicable” after the judge’s appointment to the bench, to avoid any possible appearance that the judge is engaged in prohibited political activity by continuing to maintain a campaign account from a prior non-judicial campaign (Opinion 03-61). Opinion 92-94 is modified to the extent inconsistent with the present opinion, as the Committee can likewise see no impropriety in permitting a judicial candidate to dispose of his/her unexpended campaign funds from a prior non-judicial campaign by giving them to charity.
1 A judge may, for example, vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][ii]), and participate in his/her own campaign for judicial office during the applicable window period (see 22 NYCRR 100.0[Q]; 100.5[A]).
2 Although the inquiring non-judge judicial candidate in Opinion 92-94 did not specifically ask whether he/she could donate unexpended campaign funds from a prior non-judicial campaign to charity, the Committee apparently assumed that it would be impermissible.