October 24, 2019
Digest: A judicial candidate may allow an individual to host a joint fund-raiser for him/her and two other judicial candidates, but the attendees must write separate checks to each candidate’s campaign committee.
Rules: 22 NYCRR 100.5(A)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(I); 100.5(A)(4)(c); 100.5(A)(5); Opinions 18-35; 16-75; 09-245; 08-43; 08-40; 03-06; 02-64; 01-99; 91-113; 88-04.
A judicial candidate asks if a third-party individual may host a joint fund-raiser for him/her and two other judicial candidates, and allow the attendees to write checks to the host, who will then distribute the proceeds evenly among the three judicial candidates. The prospective host is a non-judge, unaffiliated with the candidates’ campaign committees.1
A judicial candidate may participate in his/her own campaign for elective judicial office during the applicable window period as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A]). However, he/she must not personally solicit or accept campaign contributions from any source (see 22 NYCRR 100.5[A][h]; 100.5[A][I]). Rather, a committee of “responsible persons” must do so on his/her behalf unless the campaign is entirely self-funded (22 NYCRR 100.5[A]; Opinion 08-43). A judicial candidate must not authorize or knowingly permit any person to do for the candidate what the candidate is prohibited from doing under the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][c]; cf. 22 NYCRR 100.5[A] [prohibiting all judicial candidates from “directly or indirectly engag[ing]” in unauthorized political activity]).
A judicial candidate may not hold a joint fund-raiser with an individual seeking non-judicial office, “because the candidate for non-judicial office is not subject to the same exacting standards” (Opinion 08-40). By contrast, two judicial candidates on the same slate may hold a joint fund-raiser, provided they and their campaign committees take care “to avoid any implication of a cross-endorsement or solicitation” (Opinions 16-75; 01-99; 91-113). For example, they may not form a single campaign committee (see Opinions 03-06; 02-64; 88-04) or commingle funds received from the event (Opinion 16-75). However, it is appropriate for the two separate campaign committees “to share their proportionate costs” and issue an “instruction to the attendees to write separate checks to the respective campaigns for 50% of the ticket price” (id.).
Here, we conclude three judicial candidates may allow an individual otherwise unaffiliated with their campaigns to host a fund-raiser for them, subject to all applicable limitations in Section 100.5 (see e.g. 22 NYCRR 100.5[A][c]). However, the candidates may not permit attendees to write checks initially to the host for later distribution among the three committees. Instead, attendees must write separate checks to each candidate’s campaign committee to avoid any commingling of funds.
1 We have previously discussed a judge’s disqualification obligations concerning attorneys who host a fund-raiser for a judge (see e.g. Opinions 18-35; 09-245), but have not directly addressed the propriety of such third-party hosts nor the specific payment arrangement proposed here.