13 Aug Cease and Desist Order to Protect Fair Electoral Process – 8/13/20
Click to read: Cease and Desist.Served.8.13.20
Nikki J. Moreschi, Esq.
THE MORESCHI LAW FIRM™ 7 Lexington Avenue
Glens Falls, NY 12801
(518) 796-3992 phone
(866) 676-4018 fax
August 13, 2020 via Personal Service Committee to Elect Rob Smith
C/O Kim Filion
1 0 Revere Road
Queensbury, NY 12804 Candidate Rob Smith
61 Masters Common South Queensbury NY 12801
Re: Cease and Desist Notice
Dear Committee to Elect Rob Smith and Candidate Rob Smith: You are hereby notified that you are to immediately cease and desist all judicial campaign activity in violation of 22 NYCRR Part 100 and other applicable provisions of law.
A. Cease and Desist – Misleading Political Advertising/Campaign Material with Regard to Reference to Position Sought in Violation of 22 NYCRR 100.5[A)[4)[d][iii]; Opinion 17-139.
You are to immediately cease and desist the use of any and all Political Campaign Material and/or Advertising, including, but not limited to, all Political Signs, Banners, Political Advertising, Fundraising, Logos, Website, Electronic Posting, Social Media Ads and/or Posts, Merchandise, Apparel, Buttons, Print Collateral, Bumper Stickers, Mail Pieces, Print Media, Outdoor Media that violate the Rules of Judicial Conduct with regard to reference to position sought as being unethically misleading to the voters of Warren County in Violation of22 NYCRR 100.5[A][d][iii]. The Commission on Judicial Conduct has advised in Opinion 17-139 that candidates may not use advertisements in judicial can1paigns that omit the word “for” or “elect,” with regard to the position they are seeking. Your advertisement omits the word “for” or “elect” and gives the impression that you are the incumbent who currently holds the seat for County and Surrogate Judge in Warren County, and may therefore be improperly misleading to the voters of Warren County. The Commission on Judicial Conduct has taken the position that “[a] 11 judicial candidates should take steps to make certain that all of the literature, signs and ads that call for their election do not state or imply that they are incumbents of any office that they do not presently hold.” In elaborating on that position, the Committee has warned that a non-incumbent judicial candidate must be careful not to imply he/she is an incumbent and, thus, must use words such as “for” or “elect” rather than merely stating his/her name and the position sought.
In reviewing the comments by the CJC: Reference to Position Sought. In its 2015 Annual Report, the CJC made the following comment on misleading advertisements it had observed in judicial campaigns:
Despite having rendered some public disciplines and commenting on this subject previously in our Annual Reports, the Commission continues to see judicial campaign signs and literature plu·ased in such a way as to appear that a challenger already holds the particular office for which he or she is running. For example, the Commission has seen handbills, fliers, campaign posters or other literature that read such as follows –
Family Court Judge rn2
Election Day -November 3rd-
-even though candidate “Doe” may actually be a judge of another (typically lower) court or may not be a judge at all.
(“Observations and Recommendations,” 2015 CIC Ann. Rep. at 22 [the text of footnote 2 clarifies that use of”Family Court” in the example is merely
“illustrative”]). The CJC further advised that “[a]ll judicial car1didates should take steps to make certain that all of the literature, signs and ads that call for their election do not state or imply that they are incumbents of any office that they do not presently hold,” ar1d warned that “violations in the future may result in public discipline more readily than before.”
See New York State Advisory Committee on Judicial Conduct, 2018 Judicial Campaign Ethics Handbook, Section 5.3.4 “Content of Campaign Speech”.
In review of your campaign signs and literature, it is clear they are plu·ased in such a way as to appear· you already hold the office of County & Surrogate Judge you are seeking, the same as the “John Doe” statement criticized above by the CJC. It is hereby demanded that you immediately cease and desist using all campaign advertising in violation of the Rules, including removing all pre-existing materials in violation whether or not in your possession.
See attached business card as “Exhibit A.”
B. Cease and Desist -Direct Solicitation of Campaign Contributions and Fund-Raising Activity that Identifies Donors and Amounts in Violation of22 NYCRR 100.0(Q); 100.5(A)(2)(i)-(ii);
100.5(A)(4)(c); 100.5(A)(5); Opinions 15-121; 13-126; 12-84/12-95(B)-(G); 11-65; 07-135; 01-44.
The FaceBook Announcement of your “Slopeside Fundraiser at West Mountain” reads:
EXCITING NEWS …….. The Rob Smith for Warren County & Surrogate Judge Campaign is hosting a fundraiser for Rob on August 18th from 5:30 to 7:30 p.m at West Mountain. After winning two very contentious primaries for the Conservative and Independence lines, Rob needs your help to make sure he has the necessary resources to be victorious in November. Tickets are going fast as we only have so much space available. The event will be hosted outside at West Mountain and the cost is $50 per person. We will have appetizers, drinks and live acoustic music. There will be three different sponsorship levels $250 I $500 I $1,000. Each sponsorship includes tickets, special signage and recognition at the event. Please RSVP to wismith6 firstname.lastname@example.org Online donations can be made at https://www. robsmithforjudge.com/ new-page . Don’t forget to RSVP. All COVID regulations and restrictions will be followed and required.
See Slopeside Fundraiser Poster attached hereto and incorporated herein as “Exhibit B”.
You are in violation of the restrictions that require the identity of donors and donation amounts to be kept from the candidate. In your “Slopeside Fundraiser at West Mountain” donors must purchase tickets in advance, revealing the identity of everyone in attendance as a donor as well as the amount of their donation. Further, you seek to assign “custom sponsorship levels” to donors based on crime levels of “$1,000 Felony”/”$500 Misdemeanor”/$250 Violation” and promise to award each sponsor, “tickets, special signage and recognition at the event” thereby revealing the identity of the donor and the amount of campaign contribution. Such conduct is in direct violation of the Judicial Conduct Rules. As your planned Fundraiser is in complete violation of the Rules, it is hereby demanded that you cease and desist from hosting your fundraiser and return all “donations” solicited as part of the same.
THE CAMPAIGN TO ELECT JUDGE MORESCHI HEREBY DEMANDS THAT YOU IMME DIA TEL Y CEASE AND DESIST FROM THE USE OF ALL MISLEADING CAMPAIGN AND POLITICAL ADVERTISING MATERIALS IN VIOLATION OF THE RULES ON JUDICIAL CONDUCT WITH REGARD TO POSITION SOUGHT AND THAT YOU IMMEDIATELY CEASE AND DESIST FROM HOLDING YOUR AUGUST 18, 2020 SLOPESIDE FUNDRAISER WHICH IS IN VIOLATION OF FUNDRAISING RULES AND RESTRICTIONS ON JUDICIAL CONDUCT AND IMMEDIATELY RETURN ALL CAMPAIGN DONATIONS RECEIVED AS A RESULT OF YOUR FUNDRAISER. PLEASE TAKE NOTICE that your failure to immediately cease and desist will result in an application for sanction as well as application for any and all remedies available under law and equity.