The approaching elections raise the biennial issue for judges of balancing the ideal of judicial independence from politics (as far as possible) with a family member’s desire to run for office or participate in campaigns. The problem is particularly acute in the context of the home a judge shares or co-owns with a spouse or domestic partner.
The Indiana Judicial Qualifications Commission recently issued an advisory opinion providing guidance for the state’s judges on the issue. The question, the Commission explained, is whether a family member’s use of jointly-owned property for political activity would appear to the casual, average bystander to be an impermissible abuse of the prestige of the judicial office. The Commission stated, for example, that there is no blanket prohibition on a judge’s home being used for campaign events by a family member as long as the judge does not publicly assist in preparations for the event.
Although, as the Indiana Commission notes, various ethical bodies are divided, positions on judicial family involvement in politics have definitely evolved, echoing perhaps an evolution in the views on marriage of the average, casual bystander (in other words, the reasonable person). In 1976, the New Jersey Supreme Court lifted a ban on a judge’s spouse running for office. The Court explained that the “autonomy of the judge’s spouse should simply be accepted as an understood premise of modern life,” and the public should accept the political neutrality of a judge despite the political involvement of the judge’s spouse. Application of Gaulkin, 351 A.2d 740 (New Jersey 1976).
The Illinois Judicial Ethics Committee applied those principles to the issue of a judge’s spouse posting a campaign sign in their yard. The committee emphasized that today “the likelihood of a sign being misinterpreted as the judge’s act is . . . reduced by the accepted view that married individuals remain individuals with separate property rights and beliefs.” The committee stated that, if spouses cannot agree on how their joint property can and cannot be used in a campaign, “the judicial spouse cannot bar his or her spouse’s independent act by fiat or self-help.” (There are opinions that prohibit such use, although none provide advice on how that conversation would go and how the judge would enforce that edict.) The committee concluded that the possibility that “some people will misinterpret the campaign sign as a prohibited political endorsement by the judge” does “not justify curtailment of a spouse’s right to political expression.”
Of course, the freedom for a judges’ family members does not eliminate the need for judge, as the Indiana opinion states, to “conduct themselves deliberately and take all reasonable
efforts to minimize any effect” family political activity may have on public confidence in the courts.