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.