Opinion 22-102
June 30, 2022
Digest: (1) Where a judge’s remaining unexpended campaign funds after conclusion of the window period are more than de minimis, but unusual circumstances make it significantly impracticable to return those funds pro rata to contributors, the judge may donate the entire amount to a not-for-profit entity that operates a childcare program at any courthouse of the Unified Court System for children of litigants in that court, with instructions that the funds be used for that purpose. (2) Unexpended campaign funds may not be used to commission a historical plaque for the courthouse.
Rules: 22 NYCRR 100.0(Q); 100.5(A)(1)(c)-(d), (h); 100.5(A)(2); 100.5(A)(5); Opinions 18-117; 17-23; 16-29/16-50; 14-148; 12-129(A)-(G); 07-65.
Opinion:
A sitting judge has approximately $3,600 in leftover campaign funds which will not be practicable to return pro rata to contributors.1 The judge asks if it is permissible to use some of these funds to commission a historical plaque for the court to memorialize “all the judges that have been appointed and elected” in that court since its inception. After purchasing and donating the plaque to the court, the judge would then donate the balance to a not-for-profit entity that provides childcare for litigants in another courthouse of the Unified Court System, since there is no childcare service at the judge’s court. The judge asks if it is permissible to disburse the remaining unexpended campaign funds in this manner, so the campaign account can be closed out.
A judge or non-judge candidate for elective judicial office may personally participate in their own campaign for judicial office during their window period, subject to certain limitations (see 22 NYCRR 100.0[Q] [defining “window period”]; 100.5[A][1][c]; 100.5[A][2]). For example, judicial candidates must not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); must not solicit funds for, pay an assessment to, or contribute to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]); 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][5]).
A judicial candidate whose unexpended campaign funds are more than de minimis at the conclusion of the applicable window period “must make every reasonable effort to return unexpended campaign funds to contributors on a pro-rata basis” (Opinion 07-65 [emphasis added]). Thus, where those remaining campaign funds exceed $2,500, the candidate ordinarily “must direct his/her campaign committee to ‘make one reasonable, bona fide attempt to return all the funds pro rata to contributors’” (Opinion 18-117, quoting Opinion 16-29/16-50).
Nevertheless, if the remaining unexpended funds are “so limited that, under the circumstances, returning the balance to contributors will be significantly impracticable” (Opinion 07-65), the candidate may immediately dispose of them as permitted by our opinions and applicable law.
As noted above, we have concluded that unusual circumstances here make it “significantly impracticable” for this judge to return the funds pro rata to contributors (id.). Accordingly, we now proceed to the question of whether the judge may disburse the funds as proposed.
At this stage, our prior opinions permit the judge to (a) expend these funds for “any lawful non-political purpose connected to judicial office, such as the purchase of judicial robes, office supplies, computer software or books” (Opinion 16-29/16-50); (b) donate them to the Catalyst Public Service Fellowship Program (see id.);2 (c) subject to any necessary administrative approvals, use them to “purchase books or other reference materials to be donated to the courthouse law libraries” of the judge’s court (id.); or (d) donate them to a not-for-profit entity that operates a daycare center in the judge’s courthouse, which is operated for the children of litigants who do not have access to childcare (see Opinion 18-117). Moreover, because “judicial campaign funds may not ordinarily be donated to any person or entity, including a charitable organization,” a judicial candidate must “write to us for guidance” if they “wish to donate their de minimis unexpended campaign funds to an entity other than those specifically authorized” in our published opinions (id.).
We conclude the judge must not use campaign funds to purchase a historical plaque to be donated to the courthouse, as such an expenditure is not “within the contemplation of campaign contributors” (Opinion 12-129[A]-[G]) and does not provide “a public benefit intertwined with judicial office which directly inures to the benefit of our state’s judicial system as a whole” (Opinion 16-29/16-50).
However, we conclude that the judge’s remaining proposal for disposition of these campaign funds is permissible: they may be donated in their entirety to a not-for-profit entity that operates a childcare program at any courthouse of the Unified Court System for children of litigants in that court, with instructions that the funds be used for that purpose (see Opinion 18-117). This is a slight but necessary extension of our prior opinion, because the judge’s own court does not have an associated daycare provider for litigants. As a reminder, the campaign account should “be closed as soon as practicable” once the funds are disbursed (Opinion 17-23; cf. Opinion 14-148 [“funds for one judicial campaign may not be transferred or retained for use in another judicial campaign”]).
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1 Our assessment that it is not reasonably practicable to return the funds pro rata to contributors is based on several unusual factors, including the judge’s representation that the relevant campaign committee members “have had life-changing experiences that find them without records in order to make a determination of who contributed and in what amounts.”
2 Contact information for the Catalyst Program may be found in the Judicial Campaign Ethics Handbook § 7.1.1, available on the Judicial Campaign Ethics Center website (http://ww2.nycourts.gov/ip/jcec).