Opinion 14-148
October 23, 2014
Please Note: Opinion 16-29/16-50 has raised the threshold for treating unexpended campaign funds as de minimis to “$2,500 or less.”
Digest: A judge whose window period for his/her unsuccessful 2014 Supreme Court campaign will overlap with the window period for his/her upcoming 2015 Supreme Court campaign (1) may not roll over funds from one campaign to the next but must establish a new campaign account for the 2015 campaign; (2) may use the remaining 2014 campaign funds for all permissible purposes relating to his/her 2014 campaign during the remainder of his/her 2014 window period, including generically useful purchases which could be used for either campaign; and (3) at the conclusion of his/her 2014 window period, must dispose of any remaining 2014 campaign funds in accordance with applicable rules and opinions.
Rules: General Construction Law § 30; 22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(I); 100.5(A)(4)(a); 100.5(A)(5)-(6); Opinions 12-172; 12-95(A); 08-196; 07-187; 06-162; 03-122; 01-81; 99-56 (Vol. XVII); 92-68 (Vol. IX); 91-67 (Vol. VII); 90-06 (Vol. V); 88-89 (Vol. II); Joint Opinions 14-92/14-94; 12-84/12-95(B)-(G).
Opinion:
The inquiring judge was an announced candidate for election to Supreme Court in 2014. Although the judge did not receive the nomination this year, a party leader has encouraged the judge to run for another seat in the same court in 2015. The judge expects to have a “substantial amount of unexpended/surplus funds remaining” in his/her 2014 campaign account after all outstanding expenses have been paid and advises that the window period for his/her unsuccessful 2014 campaign will overlap with the window period for his/her 2015 candidacy.1 The judge is aware that unexpended campaign funds remaining at the conclusion of his/her window period may not ordinarily be rolled over to a subsequent campaign but must instead be returned pro rata to contributors, even where an unsuccessful candidate plans to run again for the same court the following year. Indeed, the inquiring judge concludes from reviewing prior opinions that “[t]he reason most cited for this directive appears to be grounded in the prospect that a candidate may face a different opponent in the succeeding race and the contributor may potentially not wish to contribute or contribute as much to the candidate as they previously did.” The inquiring judge believes a different rule should apply under the circumstances presented, however, because campaign contributors did not know who the judge’s election opponents would be at the time they made their contributions to the judge’s 2014 Supreme Court campaign.2 The judge therefore asks whether he/she must “open or commence a new campaign committee” for his/her 2015 campaign, “while winding down the present year’s campaign committee/account.” If so, the judge further asks “[f]rom which campaign account” he/she should expend funds for permissible activities “during this period of overlapping window periods.” Finally, the judge questions whether the Rules Governing Judicial Conduct (the “Rules”) genuinely contemplate, during the period of overlap, that the judge’s campaign committee should “both return funds to, and solicit funds from, the same individuals for the same judicial position.”
A judicial candidate, that is, a judge or non-judge who is seeking election to judicial office, may personally participate in his/her own campaign for judicial office, subject to certain limitations (see generally 22 NYCRR 100.0[A]; 100.5[A][1][c]; 100.5[A][2]). For example, the campaign for elective judicial office must take place only within the designated “window period” (see 22 NYCRR 100.0[Q]; Joint Opinion 14-92/14-94; Opinion 08-196), and must be conducted in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][4][a]). A judicial candidate may contribute to his/her own campaign as permitted under the Election Law (see 22 NYCRR 100.5[A][2]), but must not otherwise personally solicit or accept campaign contributions from any source (see 22 NYCRR 100.5[A][1][h]; 100.5[A][2][I]). Instead, a judge must form a committee of responsible persons to “solicit and accept reasonable campaign contributions and support from the public” on the candidate’s behalf (see 22 NYCRR 100.5[A][5]). Moreover, a judicial candidate must not use or permit the use of campaign contributions for the private benefit of the candidate or others (see id.), and must not permit the use of campaign contributions or personal funds to pay for campaign-related goods or services for which fair value was not received (see 22 NYCRR 100.5[A][6]).
The Committee has consistently advised that funds raised for one judicial 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 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]).
In the present inquiry, the fact that the specific individuals who will receive the Supreme Court nomination from each party are not known until the judicial nominating conventions take place does not change the result. Indeed, as the inquiring judge’s own experience shows, individuals may make contributions to Supreme Court candidates long before the judicial nominating convention takes place, while they are merely declared candidates vying for the nomination. While the precise identity of the individuals who will be on the ballot for Supreme Court in the General Election may not be known until late September, members of the public can, and do, make contributions to specific candidates as they become aware of the overall “field” of announced candidates who are seeking the nomination.3 Moreover, even where (as here) both window periods involve the same judicial office, it is not the identical seat. For example, the seat for which the inquiring judge was running in 2014 will not be vacant in 2015, as it will be occupied by the successful candidate from the 2014 General Election. Simply put, the “field” of announced candidates for next year’s General Election will necessarily be different from this year’s field of candidates, because at least one of those candidates is now a sitting judge.4 Finally, the Committee notes that, even where window periods overlap, making reasonable efforts to distinguish between one window period and the next helps a judge avoid the appearance that he/she is simply engaging in partisan political activity continuously throughout his/her term of office.
The Committee therefore adheres to its prior opinions. The inquiring judge should not commingle funds from his/her current and future campaigns, even for the “same” judicial position (i.e., another Supreme Court seat within the same Judicial District). Accordingly, even though the window periods overlap, the inquiring judge must close his/her current campaign account at the end of the current window period, and must open and use a new campaign account for the seat he/she is seeking in 2015, during the applicable window period for that campaign.
The Committee notes, however, that the inquiring judge may continue to use his/her 2014 campaign funds as permitted by the Rules and the Committee’s prior opinions, throughout the remainder of his/her current post-nominating convention window period in connection with his/her recently concluded 2014 campaign (see Joint Opinion 12-84/12-95[B]-[G] [“voters are likely to expect a recently elected judge to attend events in the judge’s community post-election to personally thank voters for their support and campaign workers for their time, sacrifice and hard work”]; Opinions 07-187; 99-56 [Vol. XVII]; 91-67 [Vol. VII]).5 The Committee has previously advised that 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 (see Opinion 12-172). By analogy, the Committee believes the inquiring judge may use his/her 2014 campaign account as permitted by prior opinions throughout the remainder of his/her 2014 window period, including “generically useful purchases” which could be used for either the judge’s 2014 campaign or the judge’s 2015 campaign (see id.). However, it would not be permissible to use 2014 campaign funds to make purchases which are exclusively related to the 2015 campaign (see id.).
At the conclusion of the applicable window period for the 2014 campaign, the inquiring judge must direct his/her 2014 campaign committee to dispose of any remaining 2014 campaign funds in compliance with the Committee’s prior opinions. If the funds remaining at that time total less than $1,000, they may be treated as de minimis and may be expended for any lawful non-political purpose connected to judicial office (see Opinion 12-95[A]). Conversely, if the judge has more than a de minimis amount of unexpended funds remaining at the end of the 2014 window period, he/she must make every reasonable effort to return such funds pro rata to the contributors (see Opinion 06-162).
With respect to whether the Rules contemplate that the judge’s campaign committee should (in the inquiring judge’s words) “both return funds to, and solicit funds from, the same individuals for the same judicial position,” the Committee merely notes that the Rules neither mandate nor prohibit this practice. That is, the inquiring judge may, but is not required to, direct his/her 2015 campaign committee to request contributions from the same individuals who previously contributed to the judge’s 2014 campaign. Likewise, the Rules do not require that a pro rata return of funds to the 2014 contributors take place simultaneously with a solicitation of contributions for the judge’s 2015 campaign.
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1 The judge has calculated this period of overlap from a date in December 2014 which is nine months before the 2015 judicial nominating convention, through a date in March 2015 which is six months after the judicial nominating convention at which the judge did not secure the nomination (see 22 NYCRR 100.0[Q]; Opinion 03-122).
2 The judge’s campaign committee received contributions before any of the parties’ judicial nominating conventions took place.
3 An individual becomes a “candidate” under the Rules “as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (22 NYCRR 100.0[A]), even if he/she never receives a party’s nomination.
4 Of course, even if it were possible for the field of candidates for a particular judicial position to be absolutely identical from one year to the next, a contributor might choose to support a different candidate based on newly available information or changes in his/her political views or affiliations. And changes in the overall political picture from year to year may prompt an individual to change the allocation of his/her contributions between judicial and non-judicial races or to expend a greater or lesser total amount of money in campaign contributions.
5 Because the judge was not a candidate in the 2014 General Election, the window period will end precisely six months after the judicial nominating convention at which he/she failed to secure the nomination for Supreme Court (see 22 NYCRR 100.0[Q]; Opinion 03-122; see also General Construction Law § 30).