CJE Opinion No. 99-16
Activities as Spouse of Candidate
November 24, 1999
CJE Opinion No. 99-16
You have asked this Committee how the Code of Judicial Conduct impacts your activities during the course of your husband's campaign for a United States Senate seat from another state. Your husband is a resident of that state, and during your marriage, the two of you have maintained homes there where he spends most of his time and in Massachusetts where you and your children spend most of your time. You are known professionally in Massachusetts by your maiden name. You note that you will not attend any political fund-raisers on your husband's behalf and that you are prepared to recuse yourself in any case in which a party or a lawyer is from that other state.
You have requested general guidance about your own activities during the campaign, but have also specifically asked the following:
1. Whether you may attend a cookout, hosted by your husband's campaign, for members of that state's general assembly and State Committee from his party and their guests to be held at the residence in that other state. This event will not be a fund-raiser. However, there will be political discussions at it and your husband will be called upon to speak.
2. Whether you may attend a similar event for labor leaders from that other state.
3. Whether you may attend and participate in the campaign's official kickoff along with family, friends, volunteers and political leaders of that other state.
4. Whether you may attend a forum hosted by Common Cause at which four of the candidates for this Senate seat will participate. (Each candidate will make an opening and closing statement and will field questions from the moderator and the audience.)
5. How, if at all, you may be identified and described in campaign literature and television and radio commercials.
6. To what extent you may participate in interviews with the print and electronic media about your husband and his family.
Canon 7 of the Code of Judicial Conduct addresses a judge's engagement in political activity. Relevant to your request are the prohibitions that a judge not "make speeches for a . . . candidate or publicly endorse a candidate for public office" (Canon 7[A][b]) and not "attend political gatherings" (Canon 7 [A][c]). These specific provisions must also be viewed against the backdrop of Canon 2(A) which states that a judge "should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" and Canon 2(B) which states that a judge "should not allow his family . . . relationships to influence his judicial conduct or judgment" and "should not lend the prestige of his office to advance the private interests of others."
Together the above provisions are aimed at avoiding two problems. First, a judge's involvement in partisan politics may actually affect his judicial actions, or give the appearance of doing so. A judge identified with a particular candidate may, for example, be reluctant to decide a case in a manner perceived to be inconsistent with the public position of that candidate. As noted by the Supreme Judicial Court, provisions such as those found in Canon 7 "warn . . . that 'suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another.'" In the Matter of Troy, 364 Mass. 15, 65 (1973). Second, a judge's endorsement of a candidate, or his actions giving the appearance of an endorsement, will be viewed not merely as his or her personal opinion, but as the endorsement of the judiciary, and thus will impermissibly advance the "private interests" of that person. While the public may assume your husband has your support, Canon 7 makes no exceptions where the prohibited activity is on behalf of a close family member.
Your first four inquiries relate to attendance at particular events and thus implicate the prohibition against attending "political gatherings." We agree with the New Jersey Supreme Court and our counterparts in other jurisdictions that the "ordinary courtesy of the judge in accompanying his or her spouse to a political gathering of any kind . . . would have to be foregone." Application of Gaulkin, 351 A.2d 740, (N.J. 1976). See also New Hampshire Advisory Opinion 78-3; New York Advisory Opinion 92-129; Maine Advisory Opinion 94-3; Utah Informal Advisory Opinion 89-15. However, not all gatherings attended by a candidate during the course of a campaign will necessarily be considered political. Just because a candidate walks in the door, an event or activity that the public would perceive as religious, social, civic or recreational in nature is not converted into a political gathering so along as the candidate does not use it as an occasion to seek political support, raise money for the campaign, or make political speeches. Thus, attendance at such non-political gatherings would not be a problem. While you have given us three specific examples, it is probably safe to say that during the course of a long campaign you will be continually called upon to make a judgment whether an event is political. In making that judgment, you should consider why you and your spouse are attending, whether you would have done so even if your spouse was not a candidate, whether the event would have been held even if there was no campaign, who is sponsoring the event, what your husband plans to do there, whether he views the event as an opportunity to enhance his candidacy and whether the average citizen would perceive the event as political in nature.
Turning to your first three questions, we conclude that the above considerations preclude your attendance at those events. As to the first two, even though they are not fund-raisers and may take on a social character, the campaign, itself, is hosting them. Moreover, they are aimed, or would certainly appear to be aimed, at garnering the support of these groups for your spouse's candidacy. The campaign's official kickoff is almost by definition a political gathering. That family and friends are joining campaign volunteers and political leaders would not convert the event to merely a social gathering. Finally, it would not qualify as a civic or public event, such as, for example, the administration of the oath of office. (In rendering this opinion as to the two cookouts, we are thus confirming the oral advice we previously gave in response to your request for an emergency opinion.)
However, you may attend the Common Cause forum. Unlike the cookouts and kickoff, this event is not designed to garner support for one particular candidate, but to inform the electorate of the positions of all the candidates. Attendees, presumably, will include supporters of the participants, as well as individuals who could not be identified as being in any particular camp, who may be using the event to help them decide for whom to vote, or who may simply be interested in observing this type of public discourse. As the Supreme Judicial Court noted in In the Matter of Bonin, 375 Mass. 680, 708 (1978), a "'judge should not become isolated from the society in which he lives.'" Whom we elect to run our governmental institutions is a very basic societal interest. We do not read the prohibitions in Canon 7 to impose such a political isolation so as to inhibit a judge from becoming an informed voter. Thus, we conclude that Canon 7(A)(1)(c) prohibits attendance at gatherings that are partisan in nature, that is, that are designed to enhance the electability of, to pay homage to, to rally support behind, or to raise funds for, a particular candidate. Cf. In the Matter of Troy, 364 Mass. 15, 65-67 (1973). We recognize that the slope here can become slippery, and that pigeonholing events on the basis of the number of participants may be difficult at times. For example, a rally for all the candidates from one party for an office, designed to show solidarity against the opposing party would retain its partisan nature. However, the Common Cause forum, as you describe it, is clearly informational, as opposed to partisan. Still, your attendance should remain passive (as would be the case for any judge attending such an event, regardless of whether she or he is related to one of the participants). You should not speak at the event, should not be introduced by title, and should not engage in any partisan displays of public support, such as, for example, carrying a campaign sign, passing out literature, or encouraging people in attendance to support your husband.
Your last two questions raise issues about your actual participation in, or identification with, the campaign beyond mere attendance at events. You ask to what extent you may appear in campaign literature and advertisements or appear in media interviews. Arguably, any such participation or appearance might be perceived as a prohibited public endorsement of the candidate. However, here we believe the Canons must be viewed with some degree of realism and common sense. Obviously, the public would perceive that one spouse would support the efforts of the other in this type of endeavor. What will offend Canons 2 and 7 is activity that crosses the line from acceptable, and, indeed, expected, familial support to the impermissible trading on the prestige of the judicial office. Also to be thrown into the mix, moreover, is the desirability of the electorate to have certain basic information about any candidate.
Some activities of the judicial spouse of a candidate clearly cross that line. See, for example, In re McGregor, 614 So. 2d 1089 (Fl. 1993) (delivering and erecting campaign signs for wife's campaign); Inquiry Concerning Turner, 573 So. 2d 1 (Fl. 1990) (contacting attorneys to seek help for son's candidacy); In the Matter of Codispoti, 438 S.E. 2d 549 (W. Va. 1993) (encouraging people to vote for spouse); Michigan Advisory Opinion JI-30 (1990) (handing out campaign literature); West Virginia Advisory Opinion (February 25, 1994) (delivering or picking up campaign materials and soliciting persons to display campaign signs); Oregon Advisory Opinion 82-2 (displaying a campaign sign in plain view in chambers); and Louisiana Advisory Opinion 52 (1981) (soliciting votes or contributions for family member's campaign through personal contact). This list is not meant to be exhaustive, only illustrative.
Whether and how you may be depicted in campaign literature and commercials requires some fine lines to be drawn. Our counterparts in other jurisdictions have drawn those lines differently. We are not inclined to follow the approach of those states that have prohibited any use of the judge's name, picture or title. See Alabama Advisory Opinion, 82-143; Texas Advisory Opinion 180 (1995). Rather, we agree with the approach taken in Michigan that the presentation of factual matters about the candidate's family and background does not "tie the candidacy to the prestige of the judge's office." Michigan Advisory Opinion JI-30 (1990). We believe that the public's expectation that it will learn certain basic biographical information about a candidate negates, or at least minimizes to an acceptable degree, any perception that a reference to a judicial spouse in such literature or commercials implies a judicial endorsement. But that reference must be limited to the degree necessary to supply such basic biographical information. Thus, we conclude that your name may be used, along with your picture in a family context. There may also be a simple (preferably one) reference to your current occupation as a judge. In no event should your judicial position be given any undue prominence. Therefore, you should not be photographed in your robes, you should not be referred to by title, and your judicial duties should not be discussed. Moreover, anything you say in a commercial or a quote from you appearing in any materials should be brief, and should only refer to family matters. Any greater emphasis on you will transform your role from a passive one (that is, of simply being described), to a more active one, designed, arguably, to enhance the electability of the candidate, thus making you an endorser of sorts. When that line is crossed, you may be viewed as lending the prestige of your office to advance your husband's private political interests. Moreover, the greater the focus on you, the greater the danger will be that some people may be motivated to support your husband, financially or otherwise, to, at least in part, curry your favor.
Whether you may participate in media interviews about your husband and his family will turn on the specific nature and focus of any particular interview. Since you pose no specific situation, here again we can only give some very general guidance. As with your depiction in campaign materials described above, your role in media interviews must be confined in scope solely to the legitimate need of the candidate to present a full biography of himself. Clearly, an interview would violate the Canons if, during it, you weigh in on issues being raised in his campaign or give your views why the voters of that state should vote for your husband and not his opponents. You will have to use your best judgment concerning the vast area short of this extreme. At a minimum, your safest course would be to limit the number of any such interviews. Additionally, if you plan to participate in a campaign-related interview, you should make efforts to understand beforehand the scope of the interviewer's interest in your role, should keep your participation brief, should limit your remarks to personal matters about your marriage and family, should not allow the interview to focus on your judicial duties, and should avoid at all costs being drawn into political debate. If such an interview unexpectedly shifts from family matters to political issues, you should change the subject, if possible. If the interviewer persists in this line of questioning, you should cease your participation, no matter how awkward that may be to do. Finally, while you may be identified as a judge, you should not allow the interviewer to use your title as a manner of address, should not appear in your judicial robes, and should not permit interviews to be conducted at the courthouse.
As you can see, most of the issues you raise are highly fact sensitive, and do not lend themselves to the articulation of one simple rule of thumb or the drawing of bright lines. In the final analysis, during the course of what may be a long campaign, you will be forced to look objectively at the facts, consider how any given situation may appear to a reasonable person, and exercise your best judgment.