Resign-to-run rule

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

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

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

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

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

 

Williams-Yulee controls

Last April, the U.S. Supreme Court, in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions.  (There is a longer, previous post summarizing the case on the blog here.)  Last week, in the first major application of that decision, the U.S. Court of Appeals for the 9th Circuit, sitting en banc, upheld the personal solicitation clause in the Arizona code of judicial conduct and other clauses prohibiting judicial candidates from, for example, making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon (9th Circuit en banc January 27, 2016).

The plaintiff in Wolfson, a former judicial candidate in Arizona, attempted to distinguish Williams-Yulee because, he argued, Florida and Arizona advance different interests in their respective personal solicitation prohibitions.  According to the plaintiff, Florida’s interest was in “public confidence in the integrity and independence of judges.  The integrity and independence of judges depend in turn upon their acting without fear or favor,” quoting Florida’s Canon 1 and commentary.  Arizona’s interest, he argued, was in the public’s perception of “the judge’s honesty, impartiality, temperament, or fitness,” quoting that state’s Rule 1.2 and Comment 5.   “An interest in judicial ‘honesty, impartiality, temperament, or fitness,’” the plaintiff argued, is “different than a concern for ‘fear or favor.’”

However, the 9th Circuit concluded that “is a distinction without a material difference.”

Even if Arizona adopted slightly different language for its articulation of its interest, Arizona is similarly interested in upholding the judiciary’s credibility.  There are no magic words required for a state to invoke an interest in preserving public confidence in the integrity of the state’s sitting judges.

The 9th Circuit also concluded that all of the plaintiff’s arguments about the clauses being overbroad, underinclusive, or not the least restrictive means of advancing the state’s interest were foreclosed by the decision in Williams-Yulee.  For example, the 9th Circuit rejected the plaintiff’s argument that recusal would be the best way to handle impartiality or the appearance of impartiality.

[R]ecusal is no answer at all, and this unworkable alternative was flatly dismissed in Williams-Yulee.  A rule requiring judges to recuse themselves from every case where they endorsed or campaigned for one of the parties could “disable many jurisdictions” and cripple the judiciary. . . .  Four of Arizona’s counties have only one superior court judge and two other counties have only two superior court judges. . . .  Campaigning for frequent litigants would cause an insurmountable burden that other judges and other counties may not be able to bear.  Moreover, an extensive recusal record could cause the same erosion of public confidence in the judiciary that Arizona’s Endorsement Clauses and Campaign Prohibition are trying to prevent.

One judge wrote a concurring opinion to emphasize that the restrictions were supported by the societal interest in maintaining an independent judiciary by preventing judges from becoming political powerbrokers or political pawns.

The campaign and endorsement restrictions respond to a structural need — they restrict judges from engaging in nonjudicial campaigns, to prevent them from being entangled in the legislative and executive political process.  Judges must have the confidence to stand firm against nonjudicial elected officials.  That confidence could give way — or appear to give way — if judges behave just like those elected officials, by engaging in the usual, often contentious and fiercely partisan, political processes