October 29, 2020
Digest: A judicial candidate may not attend or participate in a fund-raising event for a slate of judicial and non-judicial candidates where the candidate’s name is displayed on the invitation.
Rules: 22 NYCRR 100.0(Q); 100.5(A)(1)(d), (h); 100.5(A)(2); 100.5(A)(2)(iii); 100.5(A)(2)(v); 100.5(A)(5); 100.6(A); Opinions 19-94(A); 19-94(B); 18-164; 12-84/12-95(B)-(G); 08-40; 01-27.
A judicial candidate says a local political committee would like to host a fund-raising event for the candidates on the party’s slate. The invitation identifies two judicial candidates and two candidates for non-judicial office by name, and states that “Donations will be graciously accepted.” The judicial candidate asks if it is ethically permissible to attend and participate in the event.
Judge and non-judge candidates for elective judicial office may engage in limited political activity in support of their own campaigns during their window periods (see 22 NYCRR 100.0[Q]; 100.5[A]; 100.6[A]). For example, they may attend a wide variety of political events, including fund-raisers sponsored by political organizations, subject to limitations on the price and number of tickets (see 22 NYCRR 100.5[A][v]). They may appear at such gatherings with other candidates on their slate (see 22 NYCRR 100.5[A][iii]) but may not solicit funds for any political organization or candidate (see 22 NYCRR 100.5[A][h]). A judicial candidate who wishes to solicit or accept contributions to their campaign must establish a committee of “responsible persons” to do so on their behalf, subject to certain limitations (see 22 NYCRR 100.5[A]).
In general, 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). While a judicial candidate may, subject to strict limitations, hold a joint fund-raiser with another judicial candidate or permit an individual to host such a joint fund-raiser (see Opinion 19-94[A]), they may not permit a political action committee to do so (see Opinion 19-94[B]).
In Opinion 01-27, we advised that a judicial candidate must not be a guest of honor and award recipient at a political party’s annual fund-raising dinner. We explained that if the candidate accepted an award or were a guest of honor at the event, the candidate “would be permitting his or her name to be used in connection with the fund-raising activity of a political organization” (id.). In Opinion 12-84/12-95(B)-(G), we provided additional nuance and slightly loosened that restriction. There, we advised that a judicial candidate must not be a speaker, guest of honor, or award recipient at a politically sponsored event, unless either (a) the event is not a fund-raiser, or (b) the candidate’s participation is unannounced prior to the event (id.). We explained that if a judicial candidate’s participation as a speaker or award recipient is not announced prior to a political fund-raising event, the candidate’s name and participation is not being used to draw attendees to the event (id.). We reasoned that under such circumstances, there is little, if any, risk that the public will conclude that the candidate is permitting their name to be used in, or is otherwise implicated in, the fund-raising efforts (id.).
More recently, we advised that a judicial candidate who is part of a political party’s slate may attend a party’s fund-raising event where the invitation states “come meet [this year’s] candidates, including our judicial slate” but without naming the judicial candidate (Opinion 18-164). We pointed out that the judicial candidate was not being individually singled out in the invitation; rather, the party states that its entire local slate, presumably including all its judicial candidates, would be present.
Here, in contrast, because the invitation prominently displays the names of the candidates on the party’s slate, the judicial candidates’ names are being used to advertise or promote the event. Thus, it creates an appearance that the candidates are directly or indirectly helping raise funds for the political party (cf. 22 NYCRR 100.5[A][d], [h]; Opinions 18-164; 12-84/12-95[B]-[G]). We note that the specific fund-raising structure described in the inquiry also raises an alternative possibility, that this party-sponsored fund-raiser may be intended as a joint fund-raiser for all the party’s candidates. However, even if all the funds raised will go to directly to the individual judicial and non-judicial candidates rather than to the party, it remains impermissible (see Opinions 19-94[B]; 08-40).
Accordingly, the inquiring judicial candidate may not attend or participate in a fund-raising event for a slate of judicial and non-judicial candidates where the candidate’s name is displayed on the invitation.