Category Archives: Political activity

Supporting or opposing political candidates

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In Rule 4.1A(3), the American Bar Association Model Code of Judicial Conduct prohibits judges and judicial candidates from publicly endorsing or opposing a candidate for any public office. Almost all states have a version of this prohibition, and federal and state courts have held that it does not violate the First Amendment. Winter v. Wolnitzek, 834 F.3d 681 (6th Circuit 2016); Platt v. Board of Commissioners on Grievances and Discipline, 894 F.3d 235 (6th Circuit 2018); Siefert v. Alexander, 608 F.3d 974 (7th Circuit 2010); Wersal v. Sexton, 674 F.3d 1010 (8th Circuit); Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016); Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007); In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).

As with all of the code, the prohibition on judges’ endorsing or opposing candidates applies on-line and on social media. Liking or sharing a candidate’s social media posts is considered an endorsement, and liking or sharing others’ support or opposition to a candidate is considered support or opposition by the judge or candidate.

Examples of conduct in support of or in opposition to political candidates for which judges have been disciplined:

  • A judge publicly opposed President Barack Obama’s re-election, for example, signing letters from an organization called the United States Justice Foundation that stated, “our effort may be all that stands between four more years of Barack Obama in the White House”; and “[w]e sit back and hope that he is defeated in November at our own peril!” Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).
  • A judge wore a baseball cap endorsing a judicial candidate. In re Klein, Order (Illinois Courts Commission June 16, 2005).
  • A judge personally opposed a candidate for township trustee, for example, frequently declaring in newspaper interviews that he would run for township trustee against the candidate if no one else did, saying, “Every potentially good candidate has dropped the ball, and I’m the only one who has picked up the ball. And I will not pass the ball unless it’s to someone who can slam dunk the ball.” In the Matter of Katic, 549 N.E.2d 1039 (Indiana 1990).
  • A judge gave permission for a campaign sign supporting the sheriff’s re-election to be placed in the yard of his home. In the Matter of McCormick, 639 P.3d 735 (Iowa 2002).
  • A judge authorized the use of his name in an endorsement for a mayor’s re-election campaign that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • A judge participated in a party’s phone bank, making calls on behalf of a candidate for the county legislature. In the Matter of Raab, 793 N.E.2d 1287 (New York 2003).
  • A judge recorded a radio advertisement endorsing a candidate for town justice, authorized the candidate to print the statement in an ad, and sent a letter to the editor of the local newspaper repeating the text of his radio statement. In the Matter of Crnkovich, Determination (New York State Commission on Judicial Conduct November 18, 2002).
  • A judge signed and issued letters endorsing two candidates for the nomination for the town board in the primary election, praising their abilities and qualifications, asking local residents to “support our entire ticket,” and opposing the nomination and criticizing the campaign of a third candidate. In the Matter of Campbell, Determination (New York State Commission on Judicial Conduct November 12, 2004).
  • A judge referred to his judicial position in a telephone message requesting voters to support a candidate for lieutenant governor. In the Matter of Koon, 580 S.E.2d 147 (South Carolina 2003).
  • A judge attended a fund-raising event in support of the county tax assessor’s re-election campaign, introduced the assessor, and urged attendees to vote for her, saying, for example, “She’s the best damn tax assessor collector that we have in this country. And so you’d be making a huge mistake — you’d be making a huge mistake – if you even give any attention to anybody else that runs for that office.” Public Warning of Cox (Texas State Commission on Judicial Conduct December 4, 2020).
  • A judge authorized the use of his name, title, and likeness on a campaign mailer for a state senate candidate. Public Warning of Cano (Texas State Commission on Judicial Conduct December 13, 2018).
  • A judge sat in the campaign tent of candidates for mayor and city commissioners. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • A judge wrote a letter to the editor expressing support for a candidate for sheriff. In the Matter of Votendahl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2011).
  • A judge made two donations, totaling $350, to the campaign of a candidate for mayor and introduced the candidate at a campaign kick-off rally. In re Bennett, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2022).
  • A judge attended a political function for a congressional candidate where he personally contributed $75 to the campaign. In re Krouse, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct May 5, 2005).
  • A judicial candidate contributed to a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
  • A judge contributed $525 to the campaign of a candidate for the state house of representatives. Letter of Informal Adjustment to Bourne (Arkansas Commission on Judicial Discipline and Disability September 19, 2014).
  • A judge conveyed a city council candidate’s request for a contribution to her husband, delivered the campaign literature to him, and personally delivered a check written by her husband on their joint account to the candidate. In the Matter of Prochaska, Reprimand (Nebraska Commission on Judicial Qualifications October 7, 2002).
  • A judge wrote “on behalf” of his wife on a check he gave to the campaign manager for a candidate for secretary of state at the state party office after stating, “Hi. I’m Dick Sallee. I want to give you $100, but, I want you to put it in my wife’s name because I’m a sitting judge and I’m not supposed to be doing this.” In the Matter of Sallee, 579 N.E.2d 75 (Indiana 1991).
  • A judge made contributions from his excess campaign funds to seven candidates for public office. In re Shea, 815 So. 2d 813 (Louisiana 2002).

Examples of conduct on social media in support of or in opposition to political candidates for which judges have been disciplined:

  • A judicial candidate “liked” a Facebook post that endorsed a candidate for public office. In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).
  • On his Facebook page, a judge, for example, liked Donald J. Trump’s Facebook page and posts on the page, posted screenshots of newspaper photos of himself piloting a boat in the Trump Boat Parade, and liked a post regarding a newspaper endorsement of a candidate for U.S. Senate and commented on another post regarding the endorsement. In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
  • A judge posted on her Facebook page: “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . . Let’s not lose this seat!” Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016).
  • On her personal Facebook page, a judge publicly endorsed a candidate for county commissioner and the incumbent candidate for the county attorney. Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).
  • During his campaign, a judge on his personal Facebook page posted a link to the Facebook page for the campaign of a town council candidate and “liked” a comment to the post by another Facebook user that stated that the candidate “is a good man.” In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
  • A judge appeared to endorse a presidential candidate on a Facebook page that identified him as a judge. In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).
  • A judge shared posts on Facebook in support of or opposition to presidential candidates. Lammey (Tennessee Board of Judicial Conduct November 15, 2019).
  • A judge posted campaign advertisements for candidates for district attorney, mayor, and city commissioner on his Facebook page. Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).
  • A judge allowed a photo constituting an endorsement of a candidate for county commissioner to be posted on his Facebook page. Public Warning of Madrid (Texas State Commission on Judicial Conduct April 3, 2019).
  • A judge publicly endorsed a candidate for director of an electric cooperative and authorized the use of his name, title, and likeness on materials supporting her candidacy in mailings and on social media. In re Oakley, Opinion (Texas Special Court of Review October 25, 2019).
  • In a Facebook post about then-candidate Donald Trump, a judge asked: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?” In re Kwan, 443 P.3d 1228 (Utah 2019).

Election meddling

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In unrelated cases, 3 judicial officers were recently sanctioned for interfering in judicial elections in which they were not candidates.

In In re Hughes, 319 So. 3d 839 (Louisiana 2021), accepting a motion for consent discipline, the Louisiana Supreme Court publicly censured one of its members for a meeting with a campaign worker for a candidate for another seat on the Court that interfered with or could have interfered with the relationship between the candidate and the campaign worker.

In fall 2019, there was a run-off election between then-Judge William Crain and then-Judge Hans Liljeberg for Louisiana Supreme Court District 1.  Leading up to the election, Justice Hughes received several telephone calls about the amounts being paid to workers on the Crain campaign.  He reviewed finance reports filed by Crain’s campaign and recognized some of the names on the reports, including Johnny Blount, a former city councilman.

Although he had not seen Blount for several years, the justice went to Blount’s home to discuss the race and specifically the amount of money being paid to campaign workers for the Crain campaign.  During their conversation, the judge told Blount that he believed that Blount could receive more money for his services from the Liljeberg campaign.  The justice left his card with Blount.  Blount got the impression from their conversation that the justice was attempting to get him to change his support from Judge Crain to Judge Liljeberg.

In an affidavit after the meeting, Blount attested that the justice had offered him $5,000 to support the Liljeberg campaign.  In early November, several news articles described Blount’s affidavit and “reported negatively on respondent’s conversation with Mr. Blount and portrayed the judiciary in a negative light.”

Crain won the election.  Justice Crain and Justice Hughes recused themselves from the discipline case.

The Commission and the justice stipulated that his discussion with Blount interfered with “and/or had the potential to interfere with the working relationship between a judicial candidate and one of his campaign workers during a highly contested campaign for a seat on the same Court on which respondent serves.”  However, the parties’ joint submission stated that Blount’s allegation that the justice offered him $5,000 was “unsubstantiated.”

Although the parties stipulated that the justice had intended the conversation to be private, the Court concluded that, “given the unusual nature of the conversation,” the justice’s status as a member of the Court that was the subject of the election, and “the contentious nature of the campaign,” the justice should have foreseen that Blount might publicize their conversation.

The parties stipulated that the justice had failed to uphold the integrity and independence of the judiciary, to avoid impropriety and the appearance of impropriety, to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, to maintain the dignity appropriate to judicial office, and to refrain from unauthorized partisan political activity.

In mitigation, the Court noted that the justice was not acting in his official capacity, believed his conversation was private, expressed remorse, cooperated during the disciplinary proceedings, and accepted responsibility.  In aggravation, the Court emphasized the justice’s position as a member of the Court and his lengthy judicial experience.  The Court stressed “the unique nature of this case,” noting that the justice “is the second most senior justice on this Court, which is constitutionally charged with regulating the judiciary.”

* * *
As “persuasive authority” that a public censure was the appropriate sanction, the Louisiana Supreme Court cited the Florida Supreme Court’s public reprimand of a judge for attempting to dissuade a judicial candidate from running against an incumbent judge and to either run against a different incumbent judge or not to run at all.  Inquiry Concerning Howard, 317 So. 3d 1072 (Florida 2021).  The decision was based on a stipulation.

In early April 2019, the husband of a judicial candidate running against a recently appointed judge was told that he should contact Judge Howard so that Judge Howard could explain why his wife should run against a different judge in the same county who was also up for election in 2020.  The judge’s personal phone number was provided to the candidate’s husband.  When the candidate’s husband called the judge, the judge suggested meeting with the candidate and her husband at an event for the local Boy Scouts.  The candidate was unable to attend, but her husband did. 

At the event, the judge explained that the candidate’s current incumbent opponent enjoyed strong support and recommended that the candidate change races to target a second incumbent.  The judge said that he would like to meet and speak with the candidate herself.

On April 17, the judge met with the candidate and her campaign treasurer/law partner at their law office for 20 to 50 minutes.  The judge asked the candidate why she was running for judge, and, after she responded, he told her that her reasons were not good enough.  The judge repeatedly attempted to persuade the candidate not to run against the first incumbent, whom the judge thought was doing a good job and enjoyed the support of the community, and to switch her candidacy to run against the second incumbent, whom the judge perceived as weaker and more vulnerable.  Alternatively, the judge suggested that the candidate drop her candidacy completely and seek appointment to some future seat through the judicial nominating commission process.  When the candidate asked if the judge would be willing to provide a recommendation if the nominating commission contacted him about her, the judge stated that he does not do that.

The candidate did not relinquish her campaign against the first incumbent.

In mitigation, the Commission noted that the judge accepted full responsibility, cooperated throughout the investigation, and acknowledged that his actions were inappropriate and should not have occurred.  The Commission further noted that the judge has no prior discipline as a judge since his appointment in 2000 and no disciplinary history with The Florida Bar.

Although it approved the stipulation, the Court did not agree with the Commission’s conclusion that the judge’s conduct constituted a public endorsement or opposition to judicial candidates.  The Court did approve the Commission’s other findings that the judge’s conduct “failed to uphold the integrity and independence of the judiciary, “created the appearance of impropriety,” “failed to promote public confidence in the impartiality of the judiciary,” and “constituted an improper use of the prestige of his position in favor” of the private interest of the first incumbent.

* * *
Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) contacting individuals to inform them that he was supporting the incumbent judge’s opponent in a judicial election and, in some instances, requesting that the community member support his favored candidate and (2) failing to officially designate a campaign account and treasurer with the Division of Elections before receiving campaign contributions or issuing any funds.  Inquiry Concerning Cupp, 316 So. 3d 675 (Florida 2021).

In the lead up to the 2020 election for Hendry County Court judge, the judge began contacting individuals he knew in the county to inform them that he was supporting the incumbent judge’s opponent because he had heard concerns about the incumbent.  The judge’s preference for the incumbent’s opponent eventually became widely known in the community.  The judge admits that his “unsolicited contact with many influential members of the community, during which he expressed his preference for a certain candidate in a judicial race, and in some instances requested that the community member support his favored candidate” was inappropriate, violated the code of judicial conduct, and “damaged the integrity of the judiciary, by creating the appearance that he was interceding in a judicial election.

Marching

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Judges sometimes ask judicial ethics advisory committees whether they can participate in marches, vigils, and similar issue-related community events.  This is the advice committees have provided:

  • Before attending a march, rally, or protest, judges must assume their participation will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media; and consider whether participation “would appear to a reasonable person” to undermine the judge’s “independence, integrity, or impartiality or demean the judicial office,” which is an objective standard. Judges should examine the official title of an event, its stated mission, its sponsors, and its organizers.  If a judge participates in a march, rally, or protest focused on social, legal, or political issues that may become the subject of litigation or that is sponsored or organized by individuals or entities who regularly appear in state court proceedings, a reasonable person may have cause to question the judge’s independence and impartiality when making decisions about those issues, individuals, or entities in subsequent cases.  Judges must also scrupulously avoid any extra-judicial activity tied to an organization that practices invidious discrimination.  Judges should not participate in a march, rally, or protest if such participation could reasonably be viewed as supporting or opposing a candidate for public office or as speaking publicly on behalf of a political organization.  Even if a march, rally, or protest relates to the law, the legal system, or the administration of justice, there are potential ethical pitfalls.  Even assuming attendance at a march, rally, or protest is appropriate in the first instance, a judge must remain vigilant and be prepared to leave if the event proves problematic.  Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  Arizona Advisory Opinion 2018-6..
  • A judicial officer may not participate in “A Silent March of Black Female Attorneys of Connecticut” by meeting marchers on the steps of the Supreme Court and reading part of the state constitution even if he is not introduced, does not identify himself by name or title, does not wear a robe, does not permit his name or title to be used in advertising, does not interpret the constitutional provision, and does not speak with the media.  Connecticut Informal Opinion 2020-3.
  • A judge may attend ceremonies held by law enforcement agencies to honor officers killed in the line of duty. Florida Advisory Opinion 1992-34.
  • A judge may attend a Mothers Against Drunk Driving candlelight vigil if it is not a fund-raising event and the judge’s attendance would not be announced. Florida Advisory Opinion 1995-41.
  • A judge may participate in a “March for Science” if it is centered on matters that are unlikely to come before the court. To determine whether to participate in an issue-related gathering, a judge should thoughtfully examine whether the issues might be likely to come before the court or adversely impact judicial independence or the appearance of impropriety or the appearance of impropriety or bias.  Illinois Advisory Opinion 2019-1.
  • A judge may not participate in the Women’s March on Washington scheduled for the day after the presidential Inauguration. Massachusetts Letter Opinion 2016-10.
  • Judges may not participate in a candlelight vigil celebrating the one millionth child served by CASA programs across the country even if the vigil is non-partisan and not connected with fund-raising. New Jersey Advisory Opinion 2008-1.
  • A judge must not participate in a high-profile, apparently non-partisan march to recognize the importance of scientific endeavors and rational thought in society unless she determines that the march is not co-sponsored by or affiliated with any political organization and does not support or oppose any political party or candidate for election and her participation will not involve her in impermissible political activity or insert her unnecessarily into public controversy. In the period leading up to the event, the judge must monitor the march’s agenda and publicly reported affiliations and sponsorships.  A judge may not participate in a local political rally, march, or demonstration sponsored by grassroots organizations, even if she would refrain from speaking.  New York Advisory Opinion 2017-38.
  • A judge may not appear at a candlelight vigil for those affected by domestic violence. New York Advisory Opinion 2010-59.
  • A family court judge should not attend a tree planting and candlelight vigil on behalf of victims of crime in the judge’s county. New York Advisory Opinion 2004-91.
  • A judge may attend “A Day of Remembrance” ceremony to honor victims of domestic violence but should take care that his mannerisms, actions, or speech do not cast doubt on his impartiality and should not act as an advocate or in any way indicate a predisposition as to how he might rule in a domestic violence case. Washington Advisory Opinion 1996-16.

 

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.

 

Resign-to-run rule

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Rule 4.5 of the American Bar Association 2007 Model Code of Judicial Conduct provides that, “[u]pon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law to continue to hold judicial office.”  Canon 5C(2) of the 1990 model code and Canon 7A(3) of the 1972 model code were similar, and California and Montana are the only states not to adopt a resign-to-run requirement.

The rationale for the rule was described in a federal case upholding the Louisiana canon against a First Amendment challenge by a judge who wanted to run for mayor without first resigning.  Morial v. Judiciary Commission, 565 F.2d 295 (5th Circuit 1977).  The U.S. Court of Appeals for the 5th Circuit acknowledged that “relegating one’s robes to the closet is a heavy price to pay for tossing one’s hat in the ring.”  However, the Court concluded:

By requiring a judge to resign at the moment that he becomes a candidate, the state insures that the judge will not be in a position to abuse his office during the campaign by using it to promote his candidacy.  The appearance of abuse which might enshroud even an upright judge’s decisions during the course of a hard-fought election campaign is also dissipated by requiring the judge to resign.  He who does not hold the powers of the office cannot abuse them or even be thought to abuse them.

Moreover, the Court agreed that resignation was necessary to prevent post-campaign abuse or its appearance, which could not be prevented by a leave of absence during the campaign.  Noting that a state is not required to rely on post-campaign measures such as recusal or disciplinary proceedings against judges who used their office improperly, the Court held that “a requirement that a judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state’s interest in preventing the actuality or appearance of judicial impropriety,” without offending the First Amendment’s guarantees of free expression and association or the 14th Amendment’s guarantee of equal protection of the laws.  Accord Matter of Buckson, 610 A.2d 203 (Delaware 1992).

Similarly, the Maine Supreme Judicial Court concluded the rule “rationally seeks to separate a judge’s political, legislative, or executive branch ambitions from the judge’s judicial decision-making to further the objective of maintaining a judiciary that is independent and impartial both in fact and in the public’s perception.”  In re Dunleavy, 838 A.2d 338 (Maine 2003).  Rejecting the judge’s state and federal constitutional challenges, the Court found that a probate judge had violated the code of judicial conduct by running for the state senate without resigning his judicial position, although it imposed no discipline.

A comment was added to the model code in 2007 to explain the basis for the rule.

In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office.  Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her.  The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

Timing

The code does not define when a judge becomes “a candidate for a nonjudicial elective office,” triggering the resignation requirement, but it does provide that for a judicial office a person becomes a candidate “as soon as he or she makes a public announcement of candidacy, declares or files as a candidate with the election or appointment authority, authorizes or, where permitted, engages in solicitation or acceptance of contributions or support, or is nominated for election or appointment to office.”  The same definition has been applied in interpreting the resign-to-run rule.

Thus, a judge must resign whenever the judge announces to the public the intention to run for a non-judicial office, whether by issuing a press release, filing with the proper authority, “or any other method by which he lets his candidacy become generally known.  To hold otherwise would permit the very appearance of impropriety to which the [resign-to-run rule] is directed.”  Kentucky Formal Opinion JE-23 (1981).

The Delaware Court on the Judiciary found that a judge who had publicly announced in a press release that he intended to have his “name placed before the Republican Convention to be the gubernatorial nominee for Governor of Delaware” had violated the code.  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  The Court censured and removed him from office.

In a press release, the judge had stated:

The party deserves a choice.  This is not partisan politics and, therefore, not in violation of any rules pertaining to the judiciary.  When I am the nominee, I will resign my present position and ask the Governor to promptly name a successor acceptable to the Senate.

Based upon the contacts by many people since my November announcement, I have statewide support.  My plan is to attend functions of many of the Republican Party organizations to gain delegates to the convention by presenting my qualifications, . . . Based upon my experience in state government, I am eminently qualified to be Governor of Delaware . . . certainly more so than any person mentioned for the office to date.

So . . . on to the convention!  Thanks.

He had also attended regional party caucuses and other meetings to gain support.  Rejecting the judge’s “testing the waters” defense, the Court held that the record was clear that he had publicly announced his candidacy, his political activity went beyond that of a prospective candidate, and he had actively engaged in political activity to secure the nomination.

The Florida judicial ethics committee stated that when a person becomes a candidate may vary depending on the nature of the community.  Florida Advisory Opinion 1994-20.  In a large community, the committee advised, telling a few friends should not qualify the judge as a candidate for a non-judicial office, but in a small community, the situation may be perceived differently.  The committee noted that the resignation requirement is not triggered simply by an intent to run for office.

Further, a judge does “not have to resign merely to learn whether he has a realistic chance of election.”  Matter of Buckson, 610 A.2d 203 (Delaware 1992).  Thus, without having to resign, a judge may make preliminary surveys of financial and voter support (Kentucky Formal Opinion JE-23 (1981); Louisiana Advisory Opinion 35 (1976)) and discuss the possibility of becoming a candidate with the head of a local political committee, political party members, governmental officials, and political authorities.  New York Advisory Opinion 1991-44; New York Advisory Opinion 1997-65; New York Advisory Opinion 1993-55.

Offices

By its terms, the rule does not require a judge to resign before running for a different judicial office.  See Florida Advisory Opinion 2011-9 (civil traffic infraction hearing officer may run for county judge); Kansas Advisory Opinion JE-117 (2004) (municipal judge may run for district magistrate); Oklahoma Advisory Opinion 1998-3 (sitting appointed judge may run in judicial election); Tennessee Advisory Opinion 2003-4 (general session judge may run for state court judge).  But see In re Hodgdon, 19 A.3d 598 (Vermont 2011) (public reprimand of an assistant judge who failed to resign upon becoming a candidate for probate judge when the state’s code provides that, “A judge shall resign from judicial office upon becoming a candidate for any elective office, except that a judge of probate or an assistant judge may be a candidate for reelection or may serve as town meeting moderator, provided that the judge complies with the provisions of Section 5C”).

The model code allows a judge to be a candidate for appointment to a non-judicial office without resigning provided “the judge complies with the other provisions of this Code.”  A comment notes, “when a judge is seeking appointive nonjudicial office,” the dangers the resignation requirement was designed to prevent “are not sufficient to warrant imposing the ‘resign to run’ rule.”  The reporters’ notes further explain:

In addition, because a sitting judge may become a “candidate” for an appointive non-judicial office . . . merely by being considered by an executive branch officer for appointment, the Commission decided it was unwarranted to require automatic resignation.  This consideration is especially strong when the executive branch may be considering several nominees for the same position, and when the confirmation process, if any, is both lengthy and of uncertain outcome.

However, “[a]s a fail-safe,” the code reminds a judge who is a candidate for even an appointive non-judicial office “to abide by the other provisions of this Code (such as maintaining independence, integrity, and impartiality).”

Similarly, the Ohio judicial ethics committee advised that a judge was not required to resign from judicial office to become a candidate for appointment by a county central committee to the office of prosecuting attorney but that her activities would be limited by the code of judicial conduct.  Ohio Advisory Opinion 1998-6.  Thus, the judge could announce her intention to be a candidate to the public and to the appointing authority and seek support or endorsement “from individuals or organizations that are involved in the making of the recommendation for appointment to the office.”  However, the judge could not participate in any fund-raising and must ensure that her efforts to win the appointment do not interfere with the diligent and impartial performance of her judicial duties.  The committee advised that the judge should resign from judicial office before accepting the appointment if offered.

See also Nevada Advisory Opinion JE2011-15 (a judge must resign before becoming a candidate for appointment to the unexpired term of the elective office of district attorney); New York Advisory Opinion 2015-176 (a judge may reveal, discuss, and explore his interest in an interim appointment to non-judicial office with the public official who will make that decision if the position becomes vacant).

There are no other exceptions.  Thus, conduct commissions and advisory committees have stated that a judge must resign before running for:

See also South Carolina Advisory Opinion 8-2016 (a full-time magistrate cannot run for a political office).

Admonishing a part-time judge, the New York State Commission on Judicial Conduct found that he should not have run for the school board even if he was unopposed and even if the post was non-partisan.  In the Matter of Vosburgh, Determination (New York State Commission on Judicial Conduct September 24, 1991).  The Commission explained:

Although not openly aligned with major political parties, school board members in most jurisdictions of the state are elected, political officers.  Service on a school board often requires a member to take positions on controversial issues of community interest other than those related to the law, the legal system or the administration of justice.

The judge had been elected to fill an unexpired term on a local school board in May 1987; in November 1987, he was elected as a part-time town court justice.  When he stood for re-election to the school board in May 1990, he asked for an advisory opinion but ignored it when the judicial ethics committee stated that a part-time judge who was elected to the local school board before becoming a judge may not seek re-election to the board.  New York Advisory Opinion 1990-79.  The advisory committee explained:

Local school boards, both in urban and rural areas, are subjects of wide-spread community interest.  One of their principal functions is approval of budgets and fixation of school taxes, which are subject to controversy.  School board members may be at the center of such controversies and the object of public criticism.

Although the judge states that the school board district is a small part of the jurisdiction of the court, local attention focused on the school board could spread to the rest of the judicial area and to surrounding towns as well.  Thus, the judge could be highly visible in educational controversies, which could be inconsistent with judicial duties.  That the judge is unopposed for re-election does not preclude controversy while serving as a board member.

See also Washington Advisory Opinion 1985-8 (a part-time judge may not become a candidate for an uncompensated, non-partisan school board position in a school district outside the municipality in which the judge sits).

The judge’s resignation must be effective immediately upon becoming a candidate for a non-judicial elective position.  See New York Advisory Opinion 2009-126 (a judge who has announced his candidacy for an elective non-judicial office may not after resigning remain on the judicial payroll to receive compensation for accrued vacation time); West Virginia Advisory Opinion (February 23, 2012) (a mental hygiene commissioner must resign immediately upon becoming a candidate for the house of delegates and cannot be appointed for the limited purpose of serving as the substitute drug court judge during the election); West Virginia Advisory Opinion (January 27, 2011) (a magistrate must resign immediately on announcing his candidacy for sheriff and cannot remain in the position pending appointment of a new magistrate).

The resignation requirement cannot be circumvented by taking a leave of absence from a judicial office while running for a non-judicial office.  See New York Advisory Opinion 1989-126 (town justice may not take a leave of absence to campaign for town supervisor); South Carolina Advisory Opinion 7-1992 (a magistrate cannot simply take a leave of absence, without pay, to become a candidate for sheriff).  In California, there is no resign-to-run rule, and the state constitution allows a trial judge to “become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy.”  The California code of judicial ethics provides that a judge who is on leave while running for other public office pursuant to the constitution “shall comply with all provisions of this code, except . . . , insofar as the conduct relates to the campaign for public office for which the judge is on leave:  2B(2)—Lending the prestige of judicial office to advance the judge’s personal interest, 4C(1)—Appearing at public hearings, 5 — Engaging in political activity (including soliciting and accepting campaign contributions for the other public office).”  The California constitution provides that “[a]cceptance of the public office is a resignation from the office of judge.”

Politicking

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Several judicial ethics advisory committees have recently answered inquiries from judges about whether they can participate in marches, contact their elected representatives, or engage in similar activities.

The New York committee advised that a judge may not participate in the March for Science (scheduled for Earth Day, April 22, 2017) if the march is co-sponsored by or affiliated with a political organization, if the march is in support of or in opposition to a political party or candidate, or if marching will insert the judge unnecessarily into public controversy or involve him in impermissible political activity.  New York Advisory Opinion 2017-38.  The committee noted that the New York code of judicial conduct has a blanket prohibition on any direct or indirect political activity by judges with exceptions for voting and identifying as a member of a political party, for measures to improve the law, the legal system or the administration of justice, for the judge’s own campaign for office, and when the judges’ clear and direct personal interest is at stake.  The committee emphasized that the exceptions are narrow “to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust.”

The committee noted that “there are conflicting reports about the full agenda of the March” because  it had “only recently been proposed and organized.”  Thus, the committee cautioned, although the march “purports to be a non-partisan gathering advocating for a recognition of the importance of scientific endeavors and rational thought in society,” it could become “more of a platform for political protest against the perceived preference” of some individuals and groups for “’junk’ science, disconnected from critical thinking and fact-based solutions” and could “be seen as related primarily to highly controversial environmental issues such as global warming and resource depletion, matters that do not clearly and directly implicate the law, the legal system or the administration of justice . . . .”  Therefore, the committee directed the judge to carefully “monitor the agenda and positions taken by organizers”’ and not to join if marching means associating with “matters that are the subject of litigation or public controversy” or being involved with “political organizations,” that is, any “group whose principal purpose is to further the election or appointment of candidates to political office . . . .”  The committee also stated it “trusts that a judge will exercise discretion and leave the area on the day of the March if the judge finds that political signs unexpectedly dominate the occasion.”

In addition, the committee advised that a judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization unless one of the exceptions applied.  Specifically, the committee disapproved of a judge participating in a rally “in opposition to the so-called Trump Muslim Ban,” stating the event clearly “involves great public controversy, which is also the subject of litigation.”

About a month after the November election, the Massachusetts committee advised a judge that she could not participate in the Women’s March on Washington scheduled for the day after the presidential inauguration.  Massachusetts Advisory Opinion 2016-10.  Although the organizers emphasized that the march was “intended to be inclusive and welcoming to everyone who supports women’s rights,” the committee stated that “the political overtones are unmistakable,” pointing to references to “the ‘rhetoric of the past election cycle’ that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.’”  The committee concluded:

We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law.  The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office.  We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.

Cf., In the Matter of Sanders, 955 P.2d 369 (Washington 1998) (a new supreme court justice’s brief appearance at a March for Life rally to express his belief in the preservation and protection of innocent human life and to thank his supporters for his election did not lead to a clear conclusion that he was not impartial on the issues that might be presented to him as a judge).


Contacts

The New York committee advised that a judge may not call a Senate committee to express an opinion on a pending federal executive branch appointment or sign a MoveOn.org petition concerning such an appointment, whether as a private citizen or otherwise.  New York Advisory Opinion 2017-38.  Similarly, the Colorado committee stated that a judge may not contact his federal congressional representatives to express approval of or dissatisfaction with federal legislation or cabinet appointments.  Colorado Advisory Opinion 2017-1.  The committee did identify an exception for matters concerning the law, the legal system, or the administration of justice or matters the judge acquired knowledge or expertise about in the course of judicial duties, pursuant to Rule 3.2.  However, the committee cautioned the judge to be mindful even in those “narrowest” of circumstances to avoid impropriety and maintain independence, integrity, and impartiality.

The committee explained:

An endorsement or a protest of a particular legislative policy would appear to implicate the judge’s personal opinion.  Consequently, if a judge contacts a federal representative to discuss matters outside of the narrow scope permitted by Rule 3.2, such contact would very likely amount to an impropriety or give the appearance of impropriety. . . .  That rule requires judges to act in a manner that promotes public confidence and to avoid the appearance of impropriety both professionally and with respect to personal conduct.

In addition, the committee concluded, contact by a judge about a cabinet appointment would constitute an improper endorsement.  The opinion recognized that “[c]abinet nominees and appointees do not hold a public office per se” but noted that “they are chosen based upon their executive experience, policy expertise, partisan credentials and loyalty to the President,” “[t]heir confirmation is often contentious and politically charged,” and “[o]nce in office, they are seen as advocates for political policy.”  Thus, the committee stated, expressing support or opposition creates the appearance of political partisanship and, even if “a private telephone call may not constitute a public statement, a judge should refrain from expressing views because it would be contrary to a judge’s independence and impartiality.”

The opinion also suggested that, “[e]ven if a judge withholds his or her judicial title and is identified in name only, the judge’s status may eventually be revealed.”  Finally, the committee added that the contact would be impermissible even if it were anonymous, stating that engaging in the behavior anonymously “does not cure the concerns of impartiality or questionable integrity.”

Similarly, the New York committee stated that a judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature.  New York Advisory Opinion 2016-85.  It explained:

Concealing one’s name and judicial status does not ordinarily render prohibited conduct permissible . . . .  Even assuming the judge could operate in perfect secrecy, anonymously printing and mailing partisan political literature would violate the rule against “directly or indirectly” engaging in partisan political activity, which contains no exception for anonymous conduct . . . .

And if, as is quite likely in modern politics, the public learned that a judge was attempting to conceal his/her impermissible political activity, that would only exacerbate the resulting appearance of impropriety.


Outreach

In response to an inquiry, the Massachusetts committee advised that “judges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.”  Massachusetts Advisory Opinion 2017-1.  The opinion also stated that, “in prepared or extemporaneous remarks,” judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law.  The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and cautioned that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.”  The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”

Inaugural events

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A judge may attend the inauguration of elected public officials.  As the South Carolina advisory committee explained, swearing-in ceremonies are not political activities, but “governmental activities in which every citizen regardless of their official position should be allowed to participate.”

By attending the inauguration ceremonies … a judge simply participates as a spectator to a time honored tradition of government that symbolizes and celebrates the orderly and legal transition of elected officials.  Also, by attending as a spectator the judge is merely showing respect, in a dignified manner, for a branch of government other than his own, which thus avoids harming the integrity and impartiality of the judiciary and avoids any appearance of impropriety.

South Carolina Advisory Opinion 2-1995.  Accord Colorado Advisory Opinion 2006-10 (gubernatorial inauguration); Florida Advisory Opinion 1992-41 (presidential inauguration); New York Advisory Opinion 1997-145 (municipal induction ceremony).

A judge may attend an inaugural ball or similar event if any fee charged covers only the costs of the event or goes to a charity, but a judge may not attend if the event is a fund-raiser for a political candiate or party.  For example, the Colorado advisory committee stated that a judge may attend a dinner, concert, and whistle-stop tour following a gubernatorial inauguration when tickets may be purchased by any interested citizen for a nominal fee that covers the costs of the event only and no part of which will go to a political party.  Colorado Advisory Opinion 2006-10.  The committee cautioned that the judge may not engage in fund-raising to pay for attending the event and should not use his attendance as an opportunity to seek elevation to a higher bench, should attend as any member of the public without being seated on the dais or in any position that suggests a particular allegiance with the governor, and should be identified by name without reference to his judicial title to the extent possible.  See also Connecticut Advisory Opinion 2010-36 (a judge may, along with a guest, attend at no cost a gubernatorial inaugural ball and dinner that will raise funds to support and maintain an armory); Florida Advisory Opinion 1992-41 (a judge may attend a presidential inaugural ball provided no funds are paid to a political organization and attendance is not limited to members of one party); New York Advisory Opinion 1997-145 (a judge may not attend a ball following the swearing-in ceremony for local officials when the $250 ticket price will be used to pay campaign debts incurred by the one of the officials); New York Advisory Opinion 1998-12 (a judge may attend an inaugural ball for a mayor if any net proceeds will go to a charitable organization and the event is not a political gathering); New York Advisory Opinion 2008-213 (a judge may attend the presidential inauguration but not an inaugural ball hosted by a state political delegation, a political organization, or a political interest group unless the judge is currently a candidate); Pennsylvania Informal Advisory Opinion 12/17/01 (a judge may attend an elected official’s inaugural ball if it is a social event, not a partisan event or a fund-raiser); Pennsylvania Informal Advisory Opinion 1/5/04 (a judge may attend the inaugural ball for county commissioners but cannot attend the fund-raiser that precedes the ball); South Carolina Advisory Opinion 2-1995 (a judge may attend an inaugural ball if any fee covers only the cost and will not be retained by any political party).  Cf., Arkansas Advisory Opinion 1992-5 (a judge who holds an office filled by election may purchase tickets to and attend an inaugural ball for the President regardless whether the ball is considered a political gathering and regardless whether the admission charge is used to defray the costs of the event, is given to a charitable organization, or is used to support Democratic Party activities).

Compelling interests

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A federal district court permanently enjoined enforcement of provisions in the Kentucky code of judicial conduct prohibiting a judge or judicial candidate from:

  • Making speeches for, paying an assessment or making a contribution to, or campaigning as a member of a political organization;
  • Making pledges, promises, or commitments with respect to issues; or
  • Making misleading statements.

Winter v. Wolnitzek, 2016 U.S. Dist. LEXIS 63412 (U.S. District Court for the Eastern District of Kentucky May 12, 2016).  It also held unconstitutional the prohibition on a judge engaging in “political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.”

Some of these provisions, the court found, were simply “closing the gate” after “the “horse has already escaped the paddock” – that is, they were indistinguishable from identifying as a member of a political party, which had previously been held to be protected political speech.  Other provisions it concluded were unconstitutionally vague, requiring a candidate “to perform an Olympic-caliber routine of mental gymnastics” to discern, for example, whether a statement was misleading or an issue or pledge involved improvement of the law.  (State judiciaries that want to maintain these restrictions should consider how to make them more definite and less ambiguous, perhaps by adding clarifying comments.)

However, the Court upheld prohibitions on a judge or judicial candidate:

  • Making false statements;
  • Acting as a leader or holding an office in a political organization; and
  • Endorsing candidates.

These provisions, the court found, were narrowly tailored to ensure “that the county judge is not also the county political boss” and to differentiate judges from other politicians because “[c]itizens assume that politicians will lie” but “the public is unlikely to view a lying judge as a fair judge.”

The court also persuasively refuted several arguments frequently made in constitutional challenges to the canons.

For example, the plaintiffs argued that, rather than adopting prohibitions on speech, Kentucky could have chosen the less restrictive alternative of appointing its judges.  “The problem with that argument,” the court stated, is the U.S. Supreme Court decision on the ban on judicial candidates’ personally soliciting campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).  The Kentucky federal court explained:  “Replacing elections with an appointment system was surely an alternative in that case.  But the Supreme Court nevertheless found the challenged provision to be narrowly tailored, noting that ‘[a] state’s decision to elect judges does not compel it to compromise public confidence in their integrity.’”

As have plaintiffs in other cases, one of the plaintiffs in the Kentucky case argued that the canons were not narrowly tailored because they addressed only speech or conduct beginning the day after a non-judge candidate has filed his intention to run for judicial office.  The court stated it was “unclear what sort of alternative regulation [the plaintiff] has in mind.  A rule forbidding a lawyer to serve as a political leader if he is contemplating a judgeship in the future, perhaps?  [The plaintiff] does not say of course, but all of the alternatives that come to mind seem totally impractical if not downright Orwellian.”

 Further, one of the plaintiffs argued that the prohibition on acting as a leader in a political party was under-inclusive because it did not “prevent a judge from serving as an officer in the Federalist Society, the local FOP lodge, the local Freemason chapter, the local Right to Life chapter, or a host of other organizations.”  Rejecting that argument, the court approved the distinction drawn by the state.

The interest is not in preventing bias against parties; the interest is in preventing judges from being too involved in political machines.  And political parties control who goes on the ballot in most elections in the Commonwealth; the local Freemasons do not.  Thus, the state does not need to prevent a judge or candidate from leading the Freemasons.  It need only prevent him from leading a political party.

(Further, although the court did not note this, other parts of the code of judicial conduct may prevent a judge from serving as a leader in some non-political organizations as they prohibit a judge from any extra-judicial activity that would cast reasonable doubt on the judge’s capacity to act impartially as a judge.)

The decision in Winter v. Wolnitzek has been added to the summary of caselaw following Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.

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).

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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