Opinion: 96-07

April 25, 1996

Digest:  A part-time judge seeking re-election may include in his/her campaign literature a family picture which includes the candidate's spouse who is a full-time judge, provided that the spouse is not identified or referred to by name or office.

Rule:  22 NYCRR 100.5
           Opinion 89-48


            A part-time judge who will be seeking re-election is the spouse of a full-time judge. The inquirer asks whether he/she can use a family picture in campaign literature which includes the spouse who would be identified by name only and not by position or, in the alternative, may the campaign literature include the candidate's spouse in the family photograph while not identifying the spouse by name?

            In our opinion, it is ethically permissible to use in campaign literature a photograph of the candidate's family which includes and identifies the spouse who is also a judge, provided that the spouse's judicial title or position is not mentioned or featured.

            The Committee has previously held that although a judge may not escort a spouse who is a candidate to a politically sponsored event with respect to the spouse's campaign, the judge may accompany the spouse-candidate to community, civic or cultural events during the spouse's candidacy so long as the judge personally refrains from campaigning at such events. (Opinion 89-48, Vol. III) . The rationale of such an opinion is the virtual impossibility of total public disassociation of a candidate and his/her spouse who happens to be a judge, during the campaign.

            Our position in the instant matter would seem to be a reasonable application of that understanding. Just as it would be normal and usual for a candidate to be accompanied and therefore seen with a spouse at civic, community and other public, but not political events, during a campaign, it would be normal and usual to use a family photograph in campaign literature. To exclude the spouse-judge from the photograph would seem odd and, indeed, misleading. But to prohibit entirely any use of a photograph that includes the judge seems unnecessary, so long as proper precautions are taken. The crucial requirement, therefore, is that the photograph itself or any reference thereto, must not identify the judge by title or position. In the view of the Committee, that is a necessary condition to the use of a family photograph. Thus, in the opinion of the Committee, the use of a photograph under such circumstances, would not constitute impermissible political activity as proscribed by section 100.5 of the Rules Governing Judicial Conduct.