Opinion 92-94

September 24, 1992

NOTE: This opinion is modified, in part, by Opinion 15-214, which provides that a 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 (Opinion 15-214 [emphasis added]).

Digest:         Unexpended campaign funds from prior non-judicial campaigns may not be used for a present campaign for judicial office, for general political party use, nor for the campaigns of candidates sharing ballot with judicial candidate, but must be returned to donors on a pro-rata basis.

Rules:          22 NYCRR §100.7(a)(2)(ii); Election Law §034-130.

Opinion:

         A judicial candidate seeking election to the bench for the first time asks: 1) May unexpended campaign funds from prior campaigns for public nonjudicial office be used to finance the candidate's present judicial race; 2) May such funds be donated to county or town political committees; 3) May such funds be used to contribute to or buy tickets to fundraisers for candidates appearing on the ballot with the judicial candidate; and 4) If none of the above is permitted, what should the candidate do with those funds?

         Section 14-130 of the Election Law entitled "Campaign Funds for Personal Use" provides as follows:

Contributions received by a candidate or a political committee may be expended for any lawful purpose. Such funds shall not be converted by any person to personal use which is unrelated to a political campaign or the holding of a public office or party position.

         We have previously ruled that unexpended campaign funds may not be donated to a political party or committee or to a charitable organization (see, Advisory Committee on Judicial Ethics, Opinion 87-02; 88-59); nor can they be used to finance a judicial candidate for election to the same judicial seat which the candidate previously sought unsuccessfully (see Advisory Committee on Judicial Ethics, Opinion 90-6); nor can the funds be used to finance a judicial campaign for a different office (see Advisory Committee on Judicial Ethics, Opinion 88-89).

         Here, the donors gave their donations in prior campaigns for specific non-judicial offices. It may be contrary to the intentions of the donors to elect the candidate to a judicial office. Not only are the offices different, but the opposing candidates may be different, which might factor into the donor decision to support a candidate. It cannot be assumed that donors in the prior campaigns would wish to support the candidate for this office against the present opponents. Moreover, circumstances may have occurred since the donations were made in the previous campaigns, causing the donors to change their support of the candidate under any circumstances. Similarly, the donors may have wished to support the candidate, but not the aims of the general town or county committee nor the other candidates sharing the ballot with the candidate.

         Accordingly, the unexpended campaign funds from prior political campaigns may not be used in any way in the current judicial campaign, and should be returned to the original donors on a pro-rata basis. (See also, Opinions 87-16, 89-152, 91-12, 91-87, 92-29, concerning the use of unexpended campaign funds.)