October 19, 2000
Note: Point (3) modified in part by Opinion 06-147, which holds that a judge “need not prohibit” his/her spouse’s use of a marital residence to further the spouse’s own political campaign.
Digest: (1) A judge whose spouse is a candidate for elective political office, may accompany his/her spouse to a meeting of a fraternal organization and to a public forum not sponsored by political organizations, provided that the event is one that the judge would ordinarily be permitted to attend as an extra-judicial activity, and the judge's conduct at the event does not constitute campaigning. (2) The judge may appear with the spouse in a family photograph to be used in the campaign, provided no reference is made to the judge's judicial title or position. (3) The judge may not appear at political gatherings or campaign fund-raisers, and may not contribute to the campaign or allow campaign committee meetings to be held at their joint residence.
Rule: 22 NYCRR 100.4(C)(3); 100.5(A)(1); Opinions 96-07 (Vol. XIV); 96-73/80 (Vol. XIV); 99-112; 00-47.
A judge informs the Committee that the judge's spouse is contemplating running for public office. As a result, the judge seeks the Committee's advice as to permissible activities that the judge may engage in during the course of the spouse's campaign.
It should be noted that the judge is not a candidate for judicial office. It therefore follows that the prohibitions that apply to political activities of judges as set forth in section 100.5(A)(1) of the Rules Governing Judicial Conduct, who are not themselves candidates, constitute limitations on the judge's conduct which remain in place and are fully applicable. But, these limitations are limitations on political conduct. Thus, if the particular activity is one in which the judge is ordinarily permitted to engage in as an extra-judicial activity, the fact that the judge's spouse is seeking elective public office, does not constitute a barrier to the judge's continued participation in such activities, provided that the judge's conduct on such occasions does not amount to direct or indirect participation in the campaign.
Applying these guiding considerations to the specific activities referred to by the judge, it is the Committee's view that the judge may accompany the spouse to meetings of a fraternal organization to which the spouse had been invited to speak, even if such speech may be about issues related to the spouse's campaign. Since attendance at fraternal organization gatherings are a permissible extra-judicial activity under section 100.4(C)(3) of the Rules, appearance with the spouse is not prohibited. This assumes that the event itself is a normal activity of the organization and that the judge does not engage in any conduct during the event that may be political in nature. Similarly, the judge may attend a public forum or meeting with the spouse at which the spouse is speaking, provided that the occasion is not sponsored by a political organization or might otherwise be deemed a political gathering. See e.g., Opinions 00-47; 96-73/80 (Vol. XIV). Again, the judge must refrain from engaging in conduct at the event that amounts to campaign participation.
In that regard, the judge may not appear at any political fund-raiser nor may he/she contribute to the campaign or allow campaign committee meetings to take place at their joint residence. These are clearly political activities and are therefore prohibited. See e.g., Opinion 99-112. But the use in the campaign of a family photograph that includes the judge is not prohibited provided that no reference is made to the judge's judicial title or position. See Opinion 96-07 (Vol. XIV).