Category Archives: Family

“Any forum”

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Based on the recommendation of the Commission on Judicial Discipline, which adopted the report of the special masters following a hearing, the Colorado Supreme Court publicly censured a former judge for acting as counsel and exploiting his judicial position for his brother-in-law’s benefit following a domestic violence incident.  In the Matter of Kiesnowski (Colorado Supreme Court March 4, 2024).

On May 31, 2023, the judge’s brother-in-law was admitted to intensive care for stab wounds received during a domestic violence incident with his girlfriend.  The following day, an investigator with the district attorney’s office sought to interview the judge’s brother-in-law, but the judge’s wife denied the request, indicating that her brother was in too much pain.

Later that day, the judge twice called the investigator.  During the first call, he disclosed that he was a district court judge and relayed what his brother-in-law remembered from the incident.  During the second call, he identified himself as “Judge Kiesnowski.”  The investigator told the judge that he would let the judge know before going to the hospital to interview the judge’s brother-in-law.

The next day, the investigator went to the hospital without first informing the judge.  The brother-in-law told the investigator that he did not want to consent to an interview without seeking advice from the judge, who he referred to as “his lawyer.”  The investigator then called the judge, who said that he wanted to be present for the interview and could be at the hospital in approximately 40 minutes.  Before leaving for the hospital, the judge reviewed the code of judicial conduct and concluded that it permitted him to represent his brother-in-law.

After the judge arrived at the hospital, he consulted privately with his brother-in-law and then consented to a formal interview, which was recorded.  In the disciplinary proceeding, the judge conceded that he told the investigator that he would be acting as his brother-in-law’s counsel.  He further admitted that during the interview, he called his brother-in-law’s girlfriend a “total disaster,” accused her of threatening to blame his brother-in-law for injuries she would inflict on herself, and described his brother-in-law as a “hard-working guy” who had been hit by his girlfriend in the past.  At the end of the interview, the judge signed a medical release for his brother-in-law, noting that he was acting as a legal representative and providing his Colorado bar number on the release.

Rule 3.10 of the Colorado code provides:

A judge shall not practice law except as permitted by law or this Code. . . .  The judge may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum.

The Court found “nothing erroneous or insupportable in the special masters’ conclusion” that the judge had represented his brother-in-law, noting that during the interview, he had explicitly told the investigator that he was “acting as [an] attorney” for his brother-in-law, directed his brother-in-law to wait to answer each question until he gave him the green light, stopped the interview twice to confer privately with his brother-in-law, invoked the Fourth Amendment when he refused to agree to a consensual search of his brother-in-law’s cell phone, and invoked the Fifth Amendment when he terminated the interview.

The judge did not dispute that he represented his brother-in-law but argued that, after quickly reviewing Rule 3.10, he believed that he was only prohibited from representing him in a “forum” and that after, consulting both Black’s Law Dictionary and Heritage Dictionary, he thought that “the word ‘forum’ in Rule 3.10 referred to a public, formal, adjudicatory setting and not to an interview in a private hospital room.”  The Court rejected that argument.

The language of Rule 3.10 is unambiguous.  The operative word here is “any” because by qualifying “forum,” it conveys broad inclusion of a variety of forums, both public and private.  Kiesnowski’s interpretation, on the other hand, is overly narrow and fails to give full effect to the word “any.” . . .  The rule’s prohibition regarding representation in “any forum,” when juxtaposed against the rule’s provision expressly allowing a judge to give free legal advice to family members and to draft or review their legal documents, suggests that a judge’s representation of family members is limited to a behind-the-scenes role.

The Court was “unmoved” by the judge’s request that it “account for his good-faith belief” that he was not representing his brother-in-law in a forum prohibited by the code and his assertion that “in his ‘hurry scurry’ to get to the hospital after the investigator showed up without warning, he did the best he could with his available research tools and limited time.”  The Court noted that the judge “was well aware that he could have simply directed his brother-in-law to refuse the interview—he admitted as much at the formal hearing,” which would have allowed him to more thoroughly research the code and secure appropriate representation for his brother-in-law.

The Court also agreed with the special masters that the judge had abused the prestige of judicial office to advance his brother-in-law’s interests “when he conveyed to the investigator his status as a judge” and then vouched “for his brother-in-law’s good character while disparaging the character and credibility of the girlfriend.”  The Court noted that the masters “did not take issue” with judge’s identification of himself as a judge in the first call, which he said was “purely for the sake of transparency,” but were troubled by his “additional reminders.  . . because they were irrelevant to the investigator’s attempts to conduct the interview.”  The Court also stated that, regardless of the judge’s “intent, his repeated use of his title resulted in favorable treatment,” noting that the investigator testified that the judge’s judicial status “increased his credibility and led the investigator to conduct the interview in a more deferential manner.”

When a member of a judge’s family is a political candidate:  Part 3 — Photos

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All judicial ethics opinions on the issue advise that, when a judge’s close relative is running for a public office, the judge may be referred to in campaign literature and included in a family photo used in campaign flyers and other materials – with caveats. 

Although acknowledging that appearing in a photo “might be perceived as a prohibited public endorsement of the candidate,” the Massachusetts advisory committee explained “that the Canons must be viewed with some degree of realism and common sense.”

Obviously, the public would perceive that one spouse would support the efforts of the other in this type of endeavor.  What will offend [the code of judicial conduct] is activity that crosses the line from acceptable, and, indeed, expected, familial support to the impermissible trading on the prestige of the judicial office.  Also to be thrown into the mix, moreover, is the desirability of the electorate to have certain basic information about any candidate.

Massachusetts Advisory Opinion 1999-16.

The New York judicial ethics committee stated:

During a campaign, it would be normal and usual to use a family photograph in campaign literature.  To exclude the spouse-judge from the photograph would seem odd and, indeed, misleading.  But to prohibit entirely any use of a photograph that includes the judge seems unnecessary, so long as proper precautions are taken.

New York Advisory Opinion 2017-79.

The Oklahoma committee reasoned:

The public will surely assume that the judge supports his wife’s candidacy.  Voters who know the judge may be influenced by his position, but they would have that information whether or not the judge appeared in the family photograph.  Voters who do not know the judge will receive no clue as to his position from the photograph.

Oklahoma Advisory Opinion 2000-6. 

The Colorado opinion stated:

Family pictures and names are biographical information about a candidate and a candidate’s family, not a prohibited “public endorsement” within the meaning of [the code of judicial conduct].  Moreover, when the candidate uses the family photograph with nothing to indicate the occupation of the candidate’s spouse, the prestige of the office is not being used to assist the candidate.

Colorado Advisory Opinion 2005-5;

The permission extends to formats such as campaign videos (Kansas Advisory Opinion 185 (2017)) and websites (Maryland Advisory Opinion Request 2022-1).

Most of the opinions specifically involve a judge/spouse being pictured with a candidate/spouse, presumably because pictures of spouses are customary and expected if not required in campaigns, but some opinions give the same advice when the candidate is a child, sibling, or other close relative.  See, e.g., New York Advisory Opinion 2010-75 (“the Committee discerns no difference between posing with one’s spouse, an ethically permissible activity . . . , and posing with one’s child”).

Further, the opinions state that a judge may be identified by name in a family member’s campaign materials.  California Advisory Opinion 49 (2000); Colorado Advisory Opinion 2005-5; Connecticut Informal Opinion 2018-6; Indiana Advisory Opinion 2-2014; Maine Advisory Opinion 1994-3; Massachusetts Advisory Opinion 1999-16; New Mexico Advisory Opinion 1996-2; New York Advisory Opinion 1996-7; Ohio Advisory Opinion 2001-1; Oklahoma Advisory Opinion 2000-6; West Virginia Advisory Opinion 2019-22.  But see Texas Advisory Opinion 180 (1995) (a judge’s name and title may not be used in press releases or campaign literature identifying a candidate as the judge’s spouse).

However, the campaign materials should not include an explicit endorsement by the judge (Connecticut Informal Opinion 2018-6; Maryland Advisory Opinion Request 2022-1) or imply that the judge actively endorses their family member’s candidacy (Florida Advisory Opinion 2016-7).

The California committee cautioned that campaign photos that include a judge/relative “should be placed and captioned in a way that indicates it depicts the candidate’s family not an endorsement by the judge.”  California Advisory Opinion 49 (2000).  Similarly, other committees note that the judge/family member should appear in a photo not as a judge but as a member of the candidate’s family (Indiana Advisory Opinion 2-2014); should be identified only by name and their relationship to the candidate (West Virginia Advisory Opinion 2019-22); and “should be identified and depicted only as a spouse and not as a member of the judiciary” (Colorado Advisory Opinion 2005-5).

Thus, the judge may not be identified, referred to, or depicted as a judge by appearance, setting, occupation, title, office, status, or position in a family member’s campaign materials.  See Florida Advisory Opinion 1990-7; Kansas Advisory Opinion 185 (2017); Maine Advisory Opinion 1994-3; Oklahoma Advisory Opinion 2000-6.

Specifically, a judge may not wear a judicial robe in a family member’s campaign photo.  Alabama Advisory Opinion 2018-937; California Advisory Opinion 49 (2000); Colorado Advisory Opinion 2005-5; Connecticut Informal Opinion 2018-6; Florida Advisory Opinion 2016-7; Florida Advisory Opinion 2017-16; Indiana Advisory Opinion 2-2014; Louisiana Advisory Opinion 278 (2017); Massachusetts Advisory Opinion 1999-16; New York Advisory Opinion 2017-79; New York Advisory Opinion 2010-75.

Further, opinions advise that a judge/family member cannot be pictured in a judicial or courthouse setting (Connecticut Informal Opinion 2018-6; California Advisory Opinion 49 (2000)); with any other indicia pointing to the judicial office (Alabama Advisory Opinion 2018-937); with any “judicial paraphernalia;” (Florida Advisory Opinion 2017-16); or with any visual elements identifying them as a judge (Maryland Advisory Opinion Request 2022-1).

Other opinions state that the photo should not identify the judge/family member by general titles such as “Judge” or “Honorable” (see Alabama Advisory Opinion 2018-937; Colorado Advisory Opinion 2005-5; South Carolina Advisory Opinion 14-2003) or specific titles such as “Master in Equity” (South Carolina Advisory Opinion 7-2012) or “Magistrate” (South Carolina Advisory Opinion 9-2002).

A few opinions are less strict.  The New Mexico committee advised that a candidate may state that their spouse is a judge in their campaign literature provided other members of their immediate family are similarly referred to and the judge’s specific office or title are not used.  New Mexico Advisory Opinion 1996-2.  See also Louisiana Advisory Opinion 278 (2017) (a judge whose spouse is running for state-wide office may not be identified by title in their spouse’s campaign materials, but their occupation as a district judge may be cited for biographical purposes without reference to the specific court).

Further, the Ohio advisory committee stated that a judge may be pictured or referred to with the title “judge” as long as the occupations of other family members are also identified and  the judge/family member is not otherwise depicted in their official capacity.  Ohio Advisory Opinion 2001-1.  The committee explained:

To endorse is “to give approval of or support to.”  Webster’s II New Riverside University Dictionary 431 (1984).  True, a family picture symbolizes love and support; however, in this Board’s view it is not a “public endorsement” of a family member’s candidacy even when included in campaign literature.  The love and support portrayed by a family picture applies to the members of a family generally in all their endeavors, not specifically to one family member’s candidacy for elective office.

In campaign literature, a family picture provides biographical information regarding a candidate.  The family picture is often accompanied by the names of the family members and sometimes other biographical family information is provided.  The Board finds no ethical bar to using a family picture and listing a judge’s name with or without the title “judge” along with the names of the other family members in the campaign literature of a judge’s spouse.  Family member pictures, names, and occupations are biographical information about a candidate and the candidate’s family, not a prohibited “public endorsement.”

Similarly, the Massachusetts judicial ethics committee advised that a spouse/candidate’s campaign literature may identify their relative as a judge as long as the judge’s specific office and title are not used, their judicial duties are not discussed, the occupations of other family members are also identified, and the judge is not pictured in robes.  Massachusetts Advisory Opinion 1999-16.  The committee explained:  “We believe that the public’s expectation that it will learn certain basic biographical information about a candidate negates, or at least minimizes to an acceptable degree, any perception that a reference to a judicial spouse in such literature or commercials implies a judicial endorsement.”

However, the committee warned that any reference to the judicial office “must be limited to the degree necessary to supply such basic biographical information,” approving “a simple (preferably one) reference” to the family member’s current occupation as a judge.  The opinion emphasized to the inquiring judge, whose husband was running for U.S. Senate in another state:

In no event should your judicial position be given any undue prominence.  Therefore, you should not be photographed in your robes, you should not be referred to by title, and your judicial duties should not be discussed.  Moreover, anything you say in a commercial or a quote from you appearing in any materials should be brief, and should only refer to family matters.  Any greater emphasis on you will transform your role from a passive one (that is, of simply being described), to a more active one, designed, arguably, to enhance the electability of the candidate, thus making you an endorser of sorts.

When that line is crossed, you may be viewed as lending the prestige of your office to advance your husband’s private political interests.  Moreover, the greater the focus on you, the greater the danger will be that some people may be motivated to support your husband, financially or otherwise, to, at least in part, curry your favor.

* * *

Previous posts have summarized discipline decisions and advisory opinions about permitted and prohibited activities for judges who have a family member campaigning for political office in light of the ban on judges’ endorsing political candidates.

When a member of a judge’s family is a political candidate: Part 2

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As described in a previous post, judges have been sanctioned in judicial discipline proceedings for conduct in support of a family member’s political campaign.  There are also advisory opinions that discuss the limits on what judges can do on behalf of a family member who is running for office in light of the prohibition on judges’ endorsing political candidates.

Judicial ethics opinions have proscribed public endorsements for a family member’s campaign such as:

But see New Mexico Advisory Opinion 1996-2 (a judge may solicit signatures for their spouse’s nominating petition and assist the spouse/candidate campaign door-to-door if the judge does so as a private person outside of their normal court hours). 

Moreover, opinions warn that judges may not ask people or businesses if they are willing to display campaign signs for a family member/candidate and may not deliver or erect such signs.  See Delaware Advisory Opinion 2008-1; Kansas Advisory Opinion 179 (2014); Michigan Advisory Opinion JI-30 (1990); South Carolina Advisory Opinion 6-2016; West Virginia Advisory Opinion 1994-4.  

However, the Indiana committee advised that a judge could provide behind-the-scenes assistance to a family member/candidate, giving as an example of permissible activity preparing envelopes in which campaign materials will be mailed to potential voters or donors.  Indiana Advisory Opinion 2-2014.  The opinion explained that “the key in analyzing whether certain behavior would violate the Code of Judicial Conduct is whether it appears, to the casual bystander, to use the judge or judicial candidate’s prestige of office to further the family member’s political activity.”  Similarly, the Michigan advisory committee stated that a judge may perform behind-the-scenes activities for a relative’s campaign, and the opinion listed as permitted activities stuffing envelopes, voter registration drives, placing ads, writing speeches, and building yard signs.  Michigan Advisory Opinion JI-30 (1990). The South Carolina committee stated that a magistrate whose spouse is running for office may “drive the truck on his own time while the magistrate’s spouse posts campaign signs.  These actions indicate the magistrate’s participation as a spouse, and do not constitute endorsement of a candidate for public office.”  South Carolina Advisory Opinion 9-2002.

However, the Florida committee stated that a judge may not do “leg work” for their spouse’s campaign, although it did not define “leg work” or give examples (Florida Advisory Opinion 1987-22), and the Kansas committee advised that a judge may not contribute time to their family member’s campaign.  Kansas Advisory Opinion 179 (2014). 

Other committees have cautioned that a judge:

Several advisory opinions address the question of bumper stickers.

  • A judge may not drive or be a passenger in a car that has a bumper sticker for their spouse/candidate unless there are exigent circumstances or the bumper sticker is covered.  Connecticut Informal Opinion 2018-6. 
  • A judge should not drive a car that displays a spouse/candidate’s campaign sticker even if the car is normally driven by their spouse and even if the title for the car is in their spouse’s name.  Delaware Advisory Opinion 2008-1.
  • A judge’s spouse may not put their campaign bumper strip on their car even if the title in the spouse’s name.  Florida Advisory Opinion 1987-22.
  • A judge whose spouse is running for mayor should not place the spouse’s campaign bumper sticker on the judge’s car or on any family car that the judge uses, but the judge may accept a ride in a vehicle with such a bumper sticker.  Maine Advisory Opinion 1994-3. 
  • A judge may not display a bumper sticker for a family member’s campaign.  Michigan Advisory Opinion JI-30 (1990).
  • A judge may drive an automobile that displays a bumper sticker supporting their spouse’s candidacy only when it is necessary or particularly convenient.  New York Advisory Opinion 2006-94. 
  • A judge may not drive a vehicle normally driven by a spouse/candidate if that vehicle displays a campaign sticker for the spouse’s campaign.  West Virginia Advisory Opinion 1994-4. 

When a member of a judge’s family is a political candidate: Part 1

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There is no “family exception” to the rule prohibiting judges from publicly endorsing a candidate for public office, which is Rule 4.1(A)(3) of the 2007 American Bar Association Model Code of Judicial Conduct and has been adopted in most jurisdictions. As comment 5 to the ABA rule explains:

A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.

Thus, case law and advisory opinions state that a judge cannot on behalf of a family member/candidate:

  • Solicit votes, funds, or support in person, in writing, through campaign appearances, by telephone, through the media, or on social media,
  • Hand out campaign literature,
  • Give speeches,
  • Inform friends of the candidacy even without soliciting votes or support,
  • Question why someone is supporting their relative’s opponent,
  • Deliver and erect campaign signs or solicit persons to display campaign signs, and
  • Wear a relative’s campaign button in public or in chambers.

Examples of conduct on behalf of a family member’s campaign for which judges have been disciplined:

  • A judge whose wife was running for court clerk delivered her campaign signs, erected signs, helped attach political disclaimers to signs, and placed campaign yard signs along a highway and street.  In re McGregor, 614 So. 2d 1089 (Florida 1993) (reprimand).
  • A judge angrily confronted a man who was putting up signs opposing his brother’s gubernatorial candidacy.  Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • A judge contacted attorneys to ask for help for his son’s candidacy for county court judge and asked the honorary chair of the other campaign why he was backing his son’s opponent.  Inquiry Concerning Turner, 573 So. 2d 1 (Florida 1990) (reprimand for this and other misconduct).
  • A judge produced and erected signs advertising his wife’s campaign for county commissioner, discussed her candidacy with others at campaign events and elsewhere, and maintained a Facebook page on which materials supporting her campaign appeared.  Public Reprimand of Alvarez and Order of Additional Education (Texas State Commission on Judicial Conduct October 29, 2021).
  • A magistrate was directly, actively, and heavily involved in his wife’s campaign for circuit judge; he encouraged several people to vote for her, suggested to a neighbor who had a sign for her opponent that his wife would be a better choice, sought disparaging information about her opponent, facilitated the publication of advertisements that included disparaging information about her opponent, and misrepresented who paid for the ads, whose opinion was presented, and who signed them.  In the Matter of Codispoti, 438 S.E.2d 549 (West Virginia 1993) (censure).
  • On his Facebook page, a judge endorsed his brother’s campaign for the school board.  Public Warning of Saucedo (Texas State Commission on Judicial Conduct December 5, 2019).

“Difficult position”

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The Kentucky Supreme Court affirmed the decision of the Judicial Conduct Commission removing a judge from office for (1) inserting herself into her son’s criminal cases and attempting to influence the outcome of the cases in text messages, meetings, and calls with the county attorney and the judge presiding in the cases; (2) deleting material from her son’s social media accounts after he had been arrested and taken into custody; (3) using her position to arrange semi-private meetings with her son in the jailer’s office, bringing him drinks and food contrary to jail policy, and visiting him outside of normal visiting hours; (4) threatening to fine case workers and supervisors for late reports; (5) removing or threatening to remove attorneys from her guardian ad litem list for arbitrary reasons; (6) having her staff conduct drug tests; (7) failing to be candid with the Commission; and (8) retaining, paying, and directing her son’s attorney, who actively practiced law in her courtroom and regularly received guardian ad litem appointments from her; presiding over cases in which her staff attorney’s brother represented a party; and appointing an attorney with her husband’s law firm as a guardian ad litem.  Gordon v. Judicial Conduct Commission (Kentucky Supreme Court October 20, 2022).).  The Court concluded that removal was warranted by “the pattern and extent” of the judge’s misconduct.

From June 2017 through July 2021, the judge’s adult son Dalton was charged with crimes in several cases in which the judge was the complaining witness or victim, thus placing her, the Court stated, “in the difficult position of concurrently being a parent, victim, and judge in the same county . . . .”

During the hearing, the Commission had listened to recordings of calls between the judge and Dalton while he was incarcerated and found that the calls were “damning,” establishing and confirming much of her misconduct.  “Most shocking,” the Commission stated, was the judge’s “testimony (and argument) that she did not think anyone would ever hear or listen to the calls, the implication being she would not have said the things she said, if she had known anyone would hear them.”

The Court concluded that “the influence Judge Gordon exerted in her son’s case is undeniable,” noting that although the Commission “heard only a few of the hundreds of calls” recorded between the judge and her son while he was in jail “enough were played to prove the allegations.”

For example, in one call, the judge told her son that she had worked out a plan and warned him to leave it up to her.  She said that she had sent a text message to the presiding judge and talked to the county attorney about getting him into a treatment program.  In another call, the judge told Dalton that the county attorney was trying to take one of his cases out of her hands and that she would schedule an in-person meeting with his attorney, Clay Wilkey.

During another phone call, the judge told Dalton that she had sent the county attorney and Wilkey a proposal for resolving Dalton’s criminal charges but found out that the county attorney had already sent Wilkey a plea offer.  On the same call, the judge stated that she had told the county attorney she wanted to make the decisions for her family and her house.

The judge’s ex parte text messages with the county attorney about Dalton’s cases were admitted as evidence during the Commission hearing.  For example, over the course of 12 hours on one day, the judge and the county attorney exchanged 80 text messages, most involving the judge “pushing for information and requesting certain outcomes.”  For example, the judge messaged the county attorney requesting that Dalton receive deferred prosecution and enter an agreement to get treatment, to which the county attorney responded, “Yes I think I can make that happen.”  The judge asked the county attorney to “please please please get things worked out today for Dalton to serve some time as a consequence.”  She also told the county attorney that “[w]e have to get this done quickly….  He’s going to blow it and risk losing his ability to go back to FOS if we don’t get something done.”  (“FOS” stands for Friends of Sinners, a residential substance abuse program.)

In a hearing in one of Dalton’s cases, the judge who was presiding told Dalton that he had spoken with Judge Gordon for at least 45 minutes and got a “heads up” about Dalton, his history, and struggles.

Emphasizing that “the operative facts are that she directly inserted herself into Dalton’s cases and attempted to influence the outcome,” the Court stated that “the outcome or actions Judge Gordon requested are immaterial” and it was “of no consequence” that she was requesting Dalton that be detained or required to attend treatment, rather than “requesting that he receive preferential treatment or be pardoned for his actions.”  The Court acknowledged that the judge had often been confronted with difficult, unplanned, and unpredictable situations that directly impacted her, her son, and her family.  However, it emphasized, “judges, are responsible for exercising sound judgment even when confronted with difficult issues, especially issues that involve loved ones. . . .  Ultimately, Judge Gordon made many decisions over a span of several years, some precipitous and some seemingly more carefully considered, that resulted in numerous and separate violations of the Code of Judicial Conduct.”

Family advice

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Full-time judges are generally prohibited from practicing law but are allowed to provide some free legal services to members of their family.  Rule 3.10, ABA 2007 Model Code of Judicial Conduct.  (“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge has a close familial relationship.)

In a recent advisory opinion, the Indiana Judicial Qualifications Commission addressed questions about what type of assistance a judicial officer may provide to a family member.  Indiana Advisory Opinion 2-2020.  The opinion emphasized that the family advice exception “is narrow and essentially only allows judicial officers to give behind-the-scenes assistance” to family members, for example, drafting a will or trust agreement, reviewing documents incidental to a real estate transaction, conducting legal research, or drafting letters for the family member to sign.

The opinion also emphasized that judges must not, under any circumstances:

  • Hold themselves out to third parties in person or in correspondence as a family member’s lawyer, or
  • Act as a family member’s advocate before a tribunal.

Where the model code prohibits judges from acting as a family member’s advocate “in any forum,” the Indiana code uses the term “tribunal.”  Neither code defines either term.  The Indiana advisory opinion concluded that it means “at a minimum” that judges cannot appear on behalf of family members before courts of record, city and town courts, administrative law boards and commissions, and arbitrators.  That interpretation relied on the definition of “tribunal” in the Rules of Professional Conduct as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.”  (The reporters’ explanation of changes to the ABA model code states that the prohibition on appearing in forums was not meant to apply to “informal settings, such as a dispute in a neighborhood association or a purely private and minor commercial dispute,” where a judge could “serve as an “advocate” for a family member without becoming his or her lawyer and thus practicing law . . . .”)

The Indiana opinion addressed 3 questions.

1.“May a judicial officer attend a court or administrative hearing with a family member who is a party or witness in a proceeding?”

The opinion acknowledged that it was understandable that judges would want to accompany family members to legal proceedings where they might feel vulnerable and anxious.  However, the opinion noted that concern had to be balanced with the likelihood that observers might believe that the judge’s presence was an attempt to influence the outcome, creating at least an appearance of impropriety.

The committee concluded that a judicial officer may attend a court or administrative hearing with a family member to provide support, not advocacy.  To dispel any concerns about the judge’s role, the committee cautioned, the judge, in and around the location and immediately before and during the proceeding:

  • Must not refer to their judicial status,
  • Should try to keep others from referring to them as “judge,” “magistrate,” “commissioner,” “referee,” or other judicial title,
  • Should not wear any court-related clothing (for example, a judicial robe or casual shirt with the court logo), and
  • Should not interact with others in a manner that conveys that they have special influence or are a “court insider,” by, for example, visiting the presiding judge’s chambers or the hearing officer’s office, socializing with tribunal staff, or interacting informally with any prosecutorial or investigative staff.

The Indiana committee relied in part on Massachusetts Advisory Opinion 2008-4.

Noting that a hearing that is emotionally charged for a family member might also produce “intense emotions” for a related judge, the Indiana opinion warned judges to carefully evaluate whether they “can maintain composure during the hearing” and to remember that they must behave in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary even when not acting as a judge and regardless how others may be reacting.

2. “May a judicial officer attend and participate in an investigative interview or settlement conference of a family member on a matter that is likely to be litigated?”

The Indiana committee noted that, even before a legal matter is filed, a family member may seek a judicial officer’s advice “when facing investigative interviews or settlement conferences (i.e. to resolve an insurance claim after an auto accident or to clear up disputed credit issues).” 

The opinion concluded that negotiating on a family member’s behalf in a settlement conference or advising a family member about answering questions in an interview is the practice of law, and, therefore, judges cannot engage in those activities.  However, the opinion stated that a judge could attend a settlement conference or investigative interview to provide emotional support for a family member — with the same caveats that apply to attending hearings, described above.  Further, the committee stated that a judge could, “during a break in the settlement conference or interview, . . . answer the family member’s questions, assist the family member in evaluating the strengths and weaknesses of certain positions, and provide informal, common sense input.”

3. “May a judicial officer speak with law enforcement, prosecutors, or court personnel on a family member’s behalf when the family member is under investigation or charged with a criminal offense?”

Encouraging a “cautious approach,” the Indiana committee advised judicial officers to avoid contacting law enforcement, prosecutor’s office staff, or court personnel on a family member’s behalf, although it stated that a judge could advise a “family member what questions to ask or what information to relay.”  The opinion explained:

When a family member asks the judicial officer to communicate with law enforcement, prosecutor’s office staff, or court personnel on the family member’s behalf, even if the judicial officer merely seeks general information, there is a risk (especially if the listener knows the judicial officer) that the listener will interpret the judge’s communication as a request for special treatment.

The committee did note that a judicial officer may be able to ask questions if a family member, for example, a minor child, “is unable to adequately communicate on his or her own behalf with third parties” and no other responsible adult is available.  Even in that unusual circumstance, the committee warned, judicial officers should be cautious and never refer to their judicial status, imply that they are the family member’s attorney, suggest special consideration for the family member, or “use any court resources, such as an email dedicated to the court system.”

Political activity by members of a judge’s family

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With primary and general elections drawing nearer, below are links to 3 previous blog posts on political activity by members of a judge’s family, with summaries of advisory opinions issued since the original posts in 2016.

  • When a judge’s relative is a political candidate

  • A judicial candidate who is married to a judge may utilize the judge’s photograph in campaign advertising as long as her position is not identified and the advertising does not imply that she actively endorses his candidacy. Florida Advisory Opinion 2016-7.

  • A judge whose spouse is running for a partisan office may appear as the candidate’s spouse in a family photograph used in the campaign as long as he is not identified as a judge and there is no indication that he has endorsed her candidacy, but may not appear at non-partisan events where his spouse will be speaking, attend fund-raising events even if those events are not sponsored by a political party (i.e., “friendraisers” at private homes), or wear a campaign button or other item supporting the campaign. Florida Advisory Opinion 2017-16.

  • A judge’s parents and brother may be introduced during the public announcement of the judge’s spouse’s candidacy for elected office and may attend campaign events and fund-raisers as long as the judge’s position is not mentioned or featured. The spouse/candidate may explain that her spouse is absent from campaign events because his profession does not allow him to attend events or to endorse a candidate for office.  Florida Advisory Opinion 2018-2.

  • A judge may appear in a video that will be used in her brother’s congressional campaign as long as she is not identified as a judge. Kansas Advisory Opinion 185 (2017).

  • A judge may not make a contribution to his spouse’s campaign for political office, but his spouse may contribute to her own campaign even from community property funds in a joint checking account, although the judge should urge her to create a separate account from which to contribute. New Mexico Advisory Opinion 2017-1.

  • A judge may appear in a family photograph for her first-degree relative’s campaign literature provided she does not wear a judicial robe and nothing identifies her as a judge. New York Advisory Opinion 2017-79.

  • When a judge’s relative supports a political candidate

  • A judge’s spouse may make political contributions but not from a joint account. Maryland Opinion Request 2016-23.

  • A judge’s spouse may participate in the campaign of another person for office, but the judge should request that his name and position not be used in the campaign by his spouse, the candidate, or the campaign committee. The spouse may donate to the candidate using funds separate from the judge’s and should not use the judge’s name in the donation.  The judge should disqualify himself from any cases in which the candidate supported by his spouse is involved.  Pennsylvania Informal Advisory Opinion 1/23/2012.

  • A judge whose spouse is running for a local, non-partisan office may attend meet-and-greet functions for his campaign if her title is not used, but may not post her spouse’s campaign signs even if someone else obtains the landowners’ permission. South Carolina Advisory Opinion 6-2016.

  • Family political activities at a judge’s home

  • Although a judge’s spouse or significant other who shares an ownership interest with the judge in a property is not precluded from placing political signs on their jointly-owned property, the judge should explain the public perception issues and request that his spouse or significant other and request that she not place political signs on their property. If the spouse, significant other, or any other family member has no ownership interest in the property, the judge should not allow them to place political signs on his solely-owned property.  Arizona Advisory Opinion 2016-3.

 

Family political activities at a judge’s home

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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).

Last week:               When a judge’s relative supports a political candidate

2 weeks ago:           When a judge’s relative is a political candidate 

 

When a judge’s relative is a political candidate

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In the olden days (under the 1972 American Bar Association Model Code of Judicial Conduct), a judge was supposed to “encourage members of his family to adhere to the same standards of political conduct that apply to him,” which included discouraging family members from running for political office.  The 1990 revisions to the model code eliminated that duty to dissuade (except with respect to a judge or judicial candidate’s own campaign), reflecting “awareness that the families of judges and judicial candidates are composed of individuals with independent lives, interests and rights, and that any requirement that a judge or judicial candidate seek to influence or control the behavior of those individuals must be narrowly tailored.”  Milord, The Development of the [1990] ABA Judicial Code, at 49 (1992).

However, as a comment added to Rule 4.1 in the 2007 model code revisions explains:

Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no “family exception” to the prohibition . . . against a judge or candidate publicly endorsing candidates for public office.  A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office.  To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.

Thus, a judge cannot:

  • Solicit votes, funds, or support for a relative/candidate in person, in writing, through political appearances, by telephone, or through the media
  • Give speeches in support of a relative/candidate
  • Inform friends of the relative’s candidacy even without soliciting votes or support
  • Ask an individual why he is backing the relative’s opponent
  • Deliver and erect signs for a relative’s campaign or attach political disclaimers to the signs
  • Solicit persons to display campaign signs in their yards
  • Wear a relative’s campaign button in public or in chambers
  • Hand out a family member’s campaign literature or signs
  • Place a campaign bumper sticker on her car
  • Act or appear to act as a political advisor for the family member’s campaign

There is a split in judicial ethics opinions on whether a judge’s may provide behind-the-scenes support for a candidate/relative’s campaign although the majority advise that a judge should not perform manual labor such as compiling voter or contributor lists and stuffing envelopes

In most states, a judge may be included in a family picture in campaign materials for a family member and be identified by name and relationship to the candidate as long as the judge/relative is not identified as a judge, referred to by title, or pictured in robes or a courthouse setting.

Whether a judge can accompany a candidate/relative to political events varies from state to state, depending in part on whether the judge is prohibited from attending political events in general.  Similarly, whether a judge can make a financial contribution to the campaign of a spouse or other family member depends on each state’s rule regarding political contributions by judges in general.

The issues that arise for a judge when a family member is running for office are discussed in Political Activities by Members of a Judge’s Family, which is available to be downloaded on the web-site of the Center for Judicial Ethics.  Below are summaries of relevant advisory opinions and discipline decisions issued since that paper was up-dated in 2010.

  • Family members of a judge or a judicial candidate may engage in their own political conduct and run for office, but a judge or candidate cannot become involved in a family member’s campaign and must take reasonable steps to avoid the suggestion or implication that he endorses the family member’s candidacy. Arkansas Advisory Opinion 2009-4. 
  • A judge whose son is running for an open judicial position may attend his son’s post-election gathering after all polls have closed. Florida Advisory Opinion 2014-16. 
  • A judge may provide behind-the-scenes assistance to the campaign of a relative/candidate, such as preparing envelopes for campaign materials to be mailed to potential voters or donors. A judge may be named or have her photograph in a family member’s campaign materials as long as there is no reference to her title or position, she is not pictured in her robe, and she appears simply as a member of the candidate’s family.  Indiana Advisory Opinion 2-2014.  
  • A judge whose son is a candidate in a contested primary to replace her after she retires may attend a political event at which her son is speaking or that he will attend but may not solicit signatures for a nominating petition for him or sign the petition, contribute money or time to her son’s campaign, place yard signs for his candidacy, go door-to-door, pass out campaign literature, or publicly support her son’s candidacy. Kansas Advisory Opinion 179 (2014).
  • A judge may not accompany her spouse, who is running for office, to fund-raisers, rallies, and other campaign events. Maryland Advisory Opinion Request 2015-47.  
  • A judge should not have angrily confronting a man who was putting up signs opposing his brother’s gubernatorial candidacy. Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • A judge may attend a reception in honor of her child’s election to a public office if she clearly is present only as a parent celebrating her child’s accomplishment and avoids any appearance that she is or was involved in partisan political activity connected with her child’s campaign.  New York Advisory Opinion 2012-169. 
  • A judge may be depicted in a family photograph on his child’s political campaign literature as long he does not wear a judicial robe and he is not identified as a judge. New York Advisory Opinion 2010-75.  
  • A master-in-equity may appear in a family photo used in her spouse’s political campaign and attend his election night party, debates, and speeches as long as she is not identified by title, attendance is on her own time, and her membership in the judiciary is not publicized or announced.  South Carolina Advisory Opinion 7-2012.  

Next week:  When a judge’s relative supports a political candidate
In 2 weeks:  Political activities at a judge’s home

 

Judges, politics, and family

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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.