Campaign signs

The Illinois judicial ethics committee advised that a judge’s spouse may display a campaign sign in support of a political candidate in the yard of the home they jointly own.  Illinois Advisory Opinion 2006-2.  The committee explained that “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,” noting the community is less likely today to automatically consider the joint residence the “judge’s house.”  Emphasizing that “a judge does not possess a superior right in joint property or a right to dictate permitted and non-permitted uses,” the committee noted that, if spouses cannot agree, “the judicial spouse cannot bar his or her spouse’s independent act by fiat or self-help.”  The committee concluded that, although “some people will misinterpret the campaign sign as a prohibited political endorsement by the judge,” that does “not justify curtailment of a spouse’s right to political expression.”

Other committees have also advised that, if a judge has “strongly urged” that a sign not be placed on their property, he or she is not required to take further action if that attempt fails.  New York Advisory Opinion 2007-169.  See also Florida Advisory Opinion 2006-11; Nevada Advisory Opinion JE2010-9.

Several committees accept that a sign may be placed at the home a judge shares but caution that it should not be displayed in a way that implies that the judge endorses a candidate.  California Judges Association Advisory Opinion 49 (2000); Oklahoma Advisory Opinion 2000-7.

Apparently more confident in judges’ ability to influence their spouses, some committees have advised that, because a yard or window sign implies an endorsement by both house-holders, a judge should not permit his or her spouse to place a sign endorsing a political candidate on their property.  Arkansas Advisory Opinion 2009-4; Maine Advisory Opinion 1994-3; South Carolina Advisory Opinion 33-2001.

Opinions are also split on whether a judge may allow a spouse to put up a yard sign that is in support of the spouse’s own campaign for office.  The Colorado advisory committee stated that a judge may not allow signs promoting a spouse’s candidacy on jointly owned real estate.  Colorado Advisory Opinion 2005-5.  Noting that “as a practical matter, it is unclear how a judge would convey that a yard sign was placed at the behest of the judge’s spouse and not the judge,” the Indiana committee stated that “yard signs for a judicial spouse/candidate are best avoided.”  Indiana Advisory Opinion 2-2014.

In contrast, the New York committee stated that a judge whose spouse is running in a contested election for school board is not obligated “to discourage the spouse from displaying a campaign sign supporting the spouse’s election on the lawn of the marital residence.”  New York Advisory Opinion 2006-94.  Noting “the political rights of a candidate for public office who happens to be married to a judge cannot be ignored,” the committee concluded that the code of judicial conduct “should not and need not distort or ignore the realities of normal familial relations, and especially the public perception of those relationships.”  See also Ohio Advisory Opinion 2001-1.  Cf., Maryland Advisory Opinion Request 2015-47 (a spouse/candidate may post a campaign sign in the yard of their home even if the judge is the co-owner or co-tenant, but the judge may not allow the spouse/candidate to post signs on property owned solely by the judge).

Campaign events

A few advisory opinions direct a judge whose spouse is running for office to forbid any campaign activity in their home.  See Delaware Advisory Opinion 2008-1; Michigan Advisory Opinion JI-30 (1990) .  Similarly, some opinions require a judge to prohibit the judge’s spouse from holding campaign-related meetings in support of another candidate in their home.  Kansas Advisory Opinion JE-33 (1990); Texas Advisory Opinion 284 (2001).

Other opinions require a judge to try to dissuade a spouse against using their shared residence for campaign events but recognize that a spouse may decline the judge’s request.  See California Advisory Opinion 49 (2000) (“whenever a judge’s family member intends to use the family home for a non-judicial political fundraiser or meeting, the judge should review with the family member the judge’s ethical constraints,” and particularly should discourage an event in support of a candidate for an office closely associated with the courts, such as district attorney); Florida Advisory Opinion 2011-10 (a judge should “adamantly and genuinely encourage” her spouse to host a campaign event for a candidate somewhere other than their home); Indiana Advisory Opinion 2-2014 (although a blanket prohibition is not necessary, a judge whose family member is a candidate should consider whether the use of jointly-owned property for a campaign event would appear, to the average bystander, to be an impermissible abuse of the judge’s prestige, for example, if the property is heavily decorated with vestiges of the judge’s career).

Other opinions allow a judge’s spouse to use their home for campaign fund-raisers or strategy meetings for the spouse’s campaign or the campaign of someone the spouse supports.  New York Advisory Opinion 2006-147 (a judge’s spouse may use the marital residence to host planning meetings and/or fund-raising events to further his own political campaign); South Carolina Advisory Opinion 14-2006 (a judge’s spouse may host a party for a political candidate at their home); Washington Advisory Opinion 1986-8 (a judge’s spouse may use their home for campaign headquarters, fund-raisers, and other activities when the spouse is running for office); West Virginia Advisory Opinion (August 28, 1995) (a judge’s spouse may hold a political fund-raiser in their home).

However, these opinions also prohibit a judge’s public involvement in a campaign event hosted by his or her spouse in their home.  See also Maine Advisory Opinion 1994-3; Wisconsin Advisory Opinion 1997-2;  U.S. Advisory Opinion 53 (2009) To prevent any implication that the judge is endorsing the candidate, the judge:

• should not permit his or her name to be not used on the invitations or other announcements;
• should not attend the event;
• should not serve as host by, for example, greeting or mingling with guests or serving drinks or food;
• should be careful not to be seen by or have contact with those attending the event;
• should only perform tasks such as cleaning or replenishing refreshments if those activities are not visible to those attending.

A judge is not required to leave during an event as long the layout of the house allows the judge to be somewhere he or she will not be seen.  Cf., California Advisory Opinion 49 (2000) (a judge may attend fund-raisers and other political events at the judge’s home in honor of a family member/candidate); Illinois Advisory Opinion 2001-9 (a judge may attend a political event in the judge’s home hosted by his or her spouse but should not act as a sponsor or lend his or her name or office to the event).

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