Opinion 04-41


March 11, 2004


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 may appear with his or her spouse in a family photograph to be used in the spouse’s campaign for elective public office provided no reference is made to the judge’s judicial title or position. (2) A judge whose spouse is a candidate for elective public office, may accompany his or her spouse to civic and social functions, provided such events are within the normal activity of the organizations, and the judge’s conduct at the events does not constitute campaigning. (3) Under the circumstances, the judge should not act as a co-host together with the judge’s spouse who is a candidate for elective public office, at a private party at the couple’s summer home to be held shortly after the conclusion of a fund-raiser that is being held for the spouse at the home.

 

Rule:            22 NYCRR 100.2; 100.4(C)(3); 100.5(A)(1); 100.5(A)(1)(c), (e),(g); Opinions 96-07(Vol. XIV);99-112, (Vol. XVIII); 00-75 (Vol. XIX).


Opinion:


         A judge inquires whether certain conduct as it relates to the judge’s spouse’s campaign for elective judicial office would be permissible. Specifically, the judge inquires about two activities:

 

1. Whether the judge may appear with the spouse in a family photograph to be used in the spouse’s campaign; and

 

2. Whether the judge may accompany the spouse to certain civic and social functions, including co-hosting a private party with another couple at the judge’s summer home. The private party - a long-standing July 4th tradition- would begin approximately two hours after a fund-raiser for the judge’s spouse had concluded. Both events would be held at the same location; the co-hosts for the private party would also be among the hosts of the fund-raiser; and there would be some guests that would be present at both events.


         At the outset, 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, 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.


         With respect to the judge’s first question, it is long-settled that the judge may appear in a family photograph to be used in the spouse’s campaign, provided that no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting. Opinion 96-07 (Vol. XIV).


         The circumstances presented by the second question are two-fold. First whether the judge may accompany the spouse to certain civic and social functions, is substantially the same situation that was presented in Opinion 00-75 (Vol. XIX). Therein, this Committee stated 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. [citations omitted] Again, the judge must refrain from engaging in conduct at the event that amounts to campaign participation.


         Accordingly, the inquiring judge may accompany the judge’s spouse to civic and social functions provided such events are within the normal activity of the organization and are neither sponsored by a political organization or might be perceived as a political gathering.


         Whether the judge may co-host the annual party at the couple’s summer home presents a more difficult question. While the judge’s limited conduct of co-hosting a party with his/her spouse and another couple for family and friends to celebrate Independence Day, as they have for many years, is permissible conduct, certain salient details may raise the appearance of impropriety. 22 NYCRR 100.2. As noted, not only will the events be held at the same location on the same day, but there is the convergence of parties organizing and co-hosting both events as well as overlapping of the guest lists. This Committee has previously considered whether a judge may co-host an “informal event” with the judge’s spouse at their home where the spouse was employed by an assembly person and that assembly person would be in attendance. The Committee concluded that because the “cake and coffee event” presented in that inquiry appeared to be a political gathering” amounting to partisan political activity” and because a judge may not appear at any political fund-raiser, contribute to a campaign or allow certain campaign related activities to take place at the joint residence, use of the judge’s home for the event should not occur. 22 NYCRR 100.5(A)(1)(c), (e), (g); Opinions 99-112 (Vol. XVIII), 00-75 (Vol. XIX).


         Accordingly, in so far as the circumstances presented may actually amount to prohibited political activity or, at a minimum create the appearance that the second event is an extension of the fund-raiser, the Committee concludes that the judge should not participate in the second event if it is held in the manner proposed in the inquiry.