Opinion 18-35

March 29, 2018

Digest:         (1) A judicial candidate may not permit another person to purchase a $2,000 ticket to a political event and donate it to his/her campaign but may permit his/her campaign committee to request admission for $250 even though others must pay $2,000. (2) A judge’s obligation to disqualify him/herself from matters involving an attorney who has offered to host a single fund-raiser for the judge does not commence until invitations to the fund-raiser have been sent out. Once the invitations have been sent, the judge is disqualified, subject to remittal, from all matters involving the attorney and his/her partners and associates, during the election campaign. This obligation ends on Election Day.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.5(A)(1)(c); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(v); 100.5(A)(4)(a)-(c); Opinions 13-60; 09-245; 06-80/06-81; 03-64; 01-07; 98-107; 92-97; 88-26.

Opinion:

         A judge within his/her window period for election or re-election to judicial office would like to attend a political party fund-raiser where the ticket price is $2,000 per person.¹ The candidate asks if his/her campaign committee may accept the ticket as a gift or in-kind donation from “a relative (of their own independent volition).” The candidate further asks at what point he/she must recuse from matters involving a lawyer and his/her partners or associates, when the lawyer has offered to host a fund-raiser for the candidate’s campaign.

1. Proposed Gift of $2,000 Ticket

         In general, a judge or non-judge candidate for judicial office may personally participate in his/her own campaign for judicial office, subject to certain limitations (see generally 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, the candidate must not make a contribution to any other political candidate or any political organization (see 22 NYCRR 100.5[A][1][h]). However, during the applicable window period, a judicial candidate may attend a wide variety of political events or gatherings on behalf of his/her own candidacy, subject to certain limitations on the price and number of tickets if admission is charged (see 22 NYCRR 100.5[A][2][v]). In particular, the candidate may purchase no more than two tickets to a politically sponsored event, and the ticket price must not “exceed the proportionate cost” of the event (id.). A ticket price of $250 or less is deemed to be the proportionate cost of the function (id.).² In addition, the candidate must “encourage members of [his/her] family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate” (22 NYCRR 100.5[A][4][a]) and “shall not authorize or knowingly permit any person to do for the candidate what [he/she] is prohibited from doing under this Part” (22 NYCRR 100.5[A][4][c]).

         We conclude that a judicial candidate may not evade the strict limitations on price and number of tickets for a political event by allowing a relative or other person to purchase the tickets and donate them to his/her campaign (see 22 NYCRR 100.5[A][4][a]-[c]). However, the candidate may attend this event for a price not exceeding $250 per ticket, even if the price per ticket for other attendees exceeds $250 (see 22 NYCRR 100.5[A][2][v]; Opinion 06-80/06-81). The candidate may authorize his/her campaign committee to request that he/she be permitted to attend at a price not exceeding $250 per ticket.

2. Disqualification for an Attorney Who Hosts a Fund-Raiser

         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 therefore disqualify him/herself whenever his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Where an attorney has “organized a single fund-raiser for a judicial candidate running for re-election, the candidate, as a judge, should disqualify him/herself, subject to remittal, when that attorney (or his/her partners or associates) appears before the judge during the election campaign” (Opinion 09-245; see also Opinions 03-64; 01-07). In our view, this obligation does not commence until invitations to the fund-raiser have been sent to guests, and it ends on Election Day.

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¹ The inquiring candidate does not suggest that $2,000 is the actual proportionate cost of the dinner (cf. Opinion 98-107 [suggesting, before adoption of the $250 threshold, that “a payment of $3,000 for a ticket” to a political fund-raising dinner “can only be regarded as an impermissible political contribution”])

² We have advised that if there are multiple prices for tickets to a political event, a candidate “must purchase those with the lowest price” (Opinion 13-60; quoting Opinion 92-97; see also Opinion 88-26 [noting that a judge may not make a political contribution by purchasing a more expensive “sponsor” or “patron” level ticket to a political dinner]).