April 25, 1996
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
22 NYCRR 100.5
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