Opinion 586

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #586 -12/15/1987 (28-87)

Topic: Judges, judicial candidates; campaign contributions
Digest: Judge or candidate for judicial office may not contribute to any political organization but judicial candidate’s own committee; Judge should encourage family members not to make political contributions prohibited to judge, but is not liable for independent actions of family members
Code: CPR DR8-103(A); CJC Canon 5C(4), 7A(1)(c), 7A(2), 7B(1)(a), 7B(1)(b)

QUESTIONS

(1) May a candidate for judicial office contribute to the candidate’s own campaign?
(2) May a candidate for judicial office contribute to the candidate’s political party after being nominated for judicial office?
(3) May a member of the judiciary make annual contributions to the political party with which the judge was affiliated when elected?
(4) Do the same rules apply to the members of the immediate family of the candidate or judge?

OPINION

In NY State 91 (1968), this Committee answered the second, third and fourth questions under the Judicial Canons that were then in effect. In 1973, the ABA’s Code of Judicial Conduct (the “CJC”) which superseded the Judicial Canons, was adopted in New York Shortly thereafter, this Committee published NY. State 289 (1973), which set forth general guidelines for judicial candidates, including guidelines with respect to fundraising for the candidate’s own campaign. That opinion did not specifically overrule N Y State 91, probably because the two opinions were issued under different regulatory schemes. Nevertheless, since the provisions of the GJC differ materially from the provisions of the former Judicial Canons, and N.Y. State 289 did not address contributions by judges to other political organizations, we believe it appropriate for us to revisit these issues.We emphasize that the jurisdiction of our Committee in matters of judicial ethics is limited to the GJC and certain applicable provisions of the Code of Professional Responsibility (the ‘CPR’). We do not give interpretations of law, such as the Election Law, or rules of court, such as the Judicial Conduct Rules of the Chief Administrator of the Courts (the “OCA Rules’), 22 NYCRR Part 100.Applicable StandardsThe CJC is applicable both to persons who hold judicial office and to lawyers who are candidates for judicial office. See CPR DR8-103(A).Canon 7A(1)(c) of the CJC provides that a judge or a candidate for election to judicial office should not:”(c) …(P)ay an assessment or make a contribution to a political organization or candidate …except as authorized in subsection A(2)”Canon 7A(2) of the GJC provides:’A judge holding an office filled by public election between competing candidates, or a candidate for such office, may, only insofar as permitted by law, …contribute to a political party or organization.”Section 17-162 of the Election Law provides:”No candidate for a judicial office shall, directly or indirectly, make any contribution of money or other thing of value, nor shall any contribution be solicited of him; but a candidate for a judicial office may make such legal expenditures, other than contributions, authorized by this chapter.”This prohibition has been interpreted by the State Board of Elections to exclude, from the definition of “contributions,” transfers of the candidate’s personal funds to a political committee to be spent on the candidate’s behalf. See 1975, Op. St. Bd. Of Elect. Oct. 21.Section 100.7 of the OCA Rules provides:’No judge during a term of office shall …contribute to any political party or political campaign except his or her own campaign for elective judicial office. Political activity prohibited by this section includes:(b) Contributions, directly or indirectly, to any political campaign for any office or for any political activity. Where the judge is a candidate for judicial office, reference should be made to the Election Law.”One of the few exceptions to this prohibition involves the purchase of tickets to politically sponsored dinners or other affairs during a specified period before and after the election. See Section 100.7(a).Canon 7B(1)(a) of the CJC provides:’A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election:(a) ….should encourage members of his family to adhere to the same standards of political conduct that apply to him”.Discussion(1) It is clear that a candidate for judicial office may contribute to the candidate’s own campaign to the extent permitted by law. CPR DR8-103(A); CJC Canon 7A(2); Election Law Section 17-162.(2) A candidate for judicial office may not contribute to any political party or other political organization after becoming a candidate. GJC Canons 7A(1)(c), 7A(2); Election Law Section 17-162.(3) A judge may not contribute to any political party or other political organization. CJC Canons 7A(1)(c); 7A(2); Election Law Section 17-162; OCA Rule Section 100 7(b).(4) At least one prohibition of the CJC prohibits activity both to the judge and “a member of his family residing in his household.” See Canon 5C(4) Similarly, Canon 7B(1)(b) requires the judge to prohibit public officials or employees subject to his direction or control from doing for the judge what the judge cannot do under Canon 7. However, Canon 7 does not contain a direct prohibition against family members or require the judge to prohibit certain activities to family members Rather, it requires the judge to encourage family members to adhere to the standards of political conduct applicable to the judge– i.e. Canon 7A. Accordingly, while the judge should encourage family members not to make political contributions that could not be made by the judge, the judge may not be sanctioned when relatives over whom the judge has no control and whose conduct cannot be imputed to the judge ignore such appeals and contribute in a manner not imputable to the judge. Cf. NY. City 888 (1976) (Judge can remain on bench if spouse engages in partisan political activity prohibited to the judge, as long as the spouse’s activities may not be imputed to the judge).CONCLUSION(1) A candidate for judicial office may contribute to the candidate’s own campaign, in accordance with the provisions of applicable law.(2) A candidate for judicial office may not contribute to the candidate’s political party after being nominated for judicial office.(3) A member of the judiciary may not make annual contributions to the political party with which the judge was affiliated when elected, except to the extent permitted by the OCA Rules with respect to purchasing tickets to political dinners.(4) A judge should encourage family members not to make contributions that the judge is prohibited from making, but is not liable for actions of family members that cannot be imputed to the judge or when the judge has no control over such family members.

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