“Difficult position”

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

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

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

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 estateColorado 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 2001-1Cf., 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

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

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.