Opinion  CJE Opinion No. 2003-8

Date:	04/28/2003
Organization:	Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

Judge's Obligations When Child Runs for Political Office

You are a judge whose son wishes to run for public office. Your son attends college in Massachusetts and lives in a dormitory. He is a dependent of yours for tax purposes, receives financial support for education and certain other living expenses, and, to this point, has resided in your home when school is not in session. While living in your home, he makes no contribution to household expenses.

You have discussed your son's interest in being a candidate with him and have expressed your concerns regarding your position as a judge. Your son has assured you that he understands the fundamental concerns and is committed to avoid creating problems for you.

You pose the following questions for the committee:

1. If your son continues to reside with you when not attending college, i.e., during the summer months, will you be in violation of Canon 5 (C) (4) (c) if he receives, through his campaign committee, a contribution from an attorney or individual in the community who may appear before you or have a matter pending at the time of the contribution, or from an employee of the Superior Court Department with whom you may have a professional relationship? You state that it is unlikely that your son would be aware of parties or attorneys who have had matters decided by you or have matters pending at the time of the contribution, and he is also unlikely to recognize a court employee, with a few exceptions (those who were personal friends or acquaintances before you were appointed).
2. Although you will not participate in his campaign in any way, and would under other circumstances have no contact with the process or results of his fund raising, will you be required to obtain his campaign contribution records in order to report campaign donations received by his campaign committee, pursuant to Canon 5 (C) (4) (c)?
3. If the answer to either question 1 or question 2 is "yes," would the answer change if your son resided at another location, i.e., shared an apartment when not residing in the dormitory, although continuing to be financially dependent on you as describe above?
4. One of the living expenses presently paid regularly by you is his monthly bill for his personal cell phone. You state that it is inevitable that this phone, the number of which is familiar to a large number of friends and acquaintances, would be used for campaign-related activities, although it would not be a telephone number publicized in campaign materials. Would it be a violation of Canon 7 (A) (1) (c) to continue to pay his cell phone bill during his candidacy?
5. You are occasionally called on to make a monthly payment on his car loan, when he does not have available funds. You note that it is inevitable that this vehicle would be used for campaign activities, such as attending meetings, transporting staff, and transporting materials. Would it be a violation of Canon 7 (A) (1) (c) to make such an occasional payment where such payment covered all or some of a campaign expense?
6. Similarly, you are called on occasionally to make a monthly payment of a credit card bill when he does not have available funds. Normally, you are not aware of any particular charge on such bill. If he were to charge a campaign expense to this credit card, would it be a violation of Canon 7 (A) (1) (c) for you to make such an occasional payment where the payment covered all or some of a campaign expense?
7. Would it be a violation of Canon 7 (A) if you were to discuss with your son in the privacy of a parent-child relationship: (a) the association of various individuals with him in his campaign, e.g., to encourage or discourage a particular association; (b) public issues of interest or concern in your community; (c) sources for information that might be useful for his campaign; (d) financial contributions from family members; (e) his performance in public campaign events; (f) positions taken by him on various campaign issues; (g) the public performance of other candidates in the city council race?

As you note in your request, your son's decision to run for public office, while living with and being supported by you, implicates both Canon 5 and Canon 7. Canon 5 provides that "A Judge Should Regulate His Extra-Judicial Activities to Minimize the Risk of Conflict with His Judicial Duties." Canon 5 (C) (4) and 5 (C) (5) expressly provide as follows.

"(4) Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:

* * * * *

"(c) a judge or a member of his family residing in his household may accept any   other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $350, the judge reports it in the same manner as he reports compensation in Canon 6 (C).

"(5) For the purposes of this section 'member of his family residing in his household' means any relative of a judge by blood or marriage, or a person treated by a judge as a member of his family, who resides in his household."

Under the terms of these provisions, gifts to your son, who is a "member of [your] family residing in [your] household," would be covered by Canon 5 (C) (4) (c). It is not clear from the text of Canon 5, however, whether contributions to your son's campaign committee constitute gifts to him within the meaning of Canon 5. The 1990 ABA Model Code of Judicial Conduct, not adopted by the Massachusetts Supreme Judicial Court, made clear that gifts may be accepted that are "incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household . . . provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties." Model Code of Judicial Conduct § 4D (5) (b) (1990).

This clarification in the 1990 Model Code elucidates for us a reasonable interpretation of our 1973 Massachusetts Code of Judicial Conduct. Campaign contributions given to your son's campaign committee would appear to be contributions incident to your son's separate professional activity. As such, they would not constitute "gifts" to your son within the meaning of Canon 5 (C) (4) (c). In addition, the field of campaign contributions is complex and highly regulated. See generally G. L. c. 55 (addressing disclosure and regulation of campaign expenditures and contributions) and http://www.state.ma.us/ocpf (web site for Office of Campaign and Political Finance of Commonwealth of Massachusetts). Such contributions to your son's committee presumably will be "for the purpose of aiding or promoting the success or defeat of a candidate at a primary or election." G. L. c. 55, § 7. Such funds are generally not available for personal use. G. L. c. 55, § 6. Consequently, contributions to your son's campaign committee would not be deemed a gift to your son for purposes of Canon 5 (C) (4) (c).

This conclusion is supported, in part, by the potentially burdensome consequences of an alternative interpretation. The purpose of rules limiting gifts "is to strike a balance between common sense and usage, and apparent or actual impropriety." J. Shaman, S. Lubet & J. Alfini, Judicial Conduct and Ethics § 7.28 (3d ed. 2000). A judge whose spouse, child, or parent in the same household runs for local office, including the school board or town meeting representative, would be subject to burdensome reporting obligations that have generally been assumed not to apply to the judge, at least as long as the candidate receives contributions through a committee.

The 1990 Model Code notes an independent concern, however. If contributions to your son's campaign committee are reasonably perceived as intending to influence you in the performance of your judicial duties, you may need to evaluate whether you should recuse yourself from proceedings that may be tainted by the perception of special influence.

In conclusion, the mere fact that your son resides in your household while his campaign committee receives contributions does not make the contributions within the reach of Canon 5 (C) (4). Whether a specific contribution could reasonably be perceived as intending to influence you as a judge is a fact sensitive inquiry that you must evaluate based on the individual facts and circumstances known to you.

Your remaining questions implicate Canon 7, which provides that "A Judge Should Refrain from Political Activity," and which includes a provision that a judge should not "(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, for functions conducted to raise money for incumbents of or for candidates for election to any political office, or for any other type of political function." This provision derives from the same values that inform 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."

As your inquiry implicitly recognizes, active involvement with a political campaign is clearly prohibited. See generally In re Troy, 364 Mass. 15, 64-67 (1973) (stating that Code holds judges "to more definite and high standards of judicial conduct and private behavior and practices than in the past"). There appears no basis either in the text of Canon 7 nor in the policies behind it to suggest that a campaign by a family member should be exempt from this prohibition. Other jurisdictions agree. See generally In re McGregor, 614 So. 2d 1089 (Fla. 1993) (imposing public reprimand for active involvement in wife's campaign for county clerk of court by delivering, modifying, and erecting campaign signs); In re Turner, 573 So. 2d 1 (Fla. 1990) (imposing public reprimand for contacting and soliciting attorneys to assist in son's campaign for county judge); In re Codipoti, 438 N.E.2d 549 (W.Va. 1993) (imposing censure for involvement in wife's judicial campaign and misleading campaign advertisements).

While Canon 7 would prohibit a direct contribution to your son's campaign, it is less clear whether it prohibits indirect personal support, which may help the campaign but also serves a personal purpose and enables your son to stay in easy communication with the family. Canon 7 (A) (1) (c) states that a judge should not "make a contribution to a political organization or candidate" (emphasis added). As a parent, you have made occasional phone, credit card, or car payments to assist your son during his college years and transition to independence. Because those payments predated the upcoming political campaign, they were made to your son in the familial capacity, not to your son as the candidate. As we noted in CJE Opinion 99-16, "the Canons must be viewed with some degree of realism and common sense." We were concerned in that opinion, as here, about "activity that crosses the line from acceptable, and, indeed, expected, familial support to the impermissible trading on the prestige of the judicial office." Ongoing support as you describe falls under the category of expected, familial support.

Consequently, your occasional contributions to your son in a manner consistent with the preexisting contributions you describe appear to be outside the scope of Canon 7 (A) (1) (c). Abuse of this distinction, however, could lead to a violation of Canon 7 (A) (1) (c). The point at which you continue or increase support for the purpose of aiding your son's political campaign, such contributions move into the area of "contribution to a political organization or candidate" within the meaning of Canon 7 (A) (1) (c). Contributions that directly support the campaign, such as paying credit card bills for campaign expenses, would be similarly prohibited. (This opinion does not address whether such contributions might also be in violation of any Massachusetts statutes or regulations governing campaign finance contributions).

Finally, you inquire whether Canon 7 would prohibit advising your son, in the privacy of the parent-child relationship, on his political campaign. Canon 7 (A) (1) provides that a judge should not "(a) act as a leader or hold any office in a political organization" or "(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office." There is no textual basis to suggest that informal conversation within the context of a parent-child relationship is covered by Canon 7. Its reach is intended to protect the integrity of the judiciary, not to prevent private conversation between parent and child.

We conclude by noting that in your public behavior you must scrupulously avoid public endorsement of your son's campaign, as challenging as that prohibition might be. As directed in CJE Opinion 98-4, "you must remain sufficiently divorced from the conduct of members of your family to ensure that there is not a public perception that you, yourself, are endorsing a political candidate." In the context of advising a judge whose spouse and children were politically active (although not themselves running for public office), we noted:

"It is advisable that no such gatherings be held in your home. If your [spouse] insists on holding such events in your home, you 'must take all reasonable measures to dissociate . . . [yourself] from the events, including steps to avoid being seen by those in attendance during the events, which if necessary would include leaving the premises for the duration of the events.' See U.S. Compendium of Selected Opinions § 7.3 (d) (1995). Similarly, while your children may be politically active, you may not allow political bumper stickers to be placed on a vehicle registered to you, and you should not drive a vehicle with a sticker on it. You should also not allow political signs to be placed on your lawn."

In CJE Opinion 99-16, this committee gave advice to a judge whose spouse was campaigning for a United States Senate seat in another State. There, as here, at all times "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" in light of the values and concerns noted above.

Your goal is to avoid even the appearance of impropriety during your son's campaign. Should such an appearance arise, you would need to evaluate whether you should recuse yourself from a particular proceeding. Cf. Judicial Conference of the United States, Committee on Codes of Conduct, Op. No. 53 (stating that spouse's participation in politics will "undoubtedly increase the number of situations in which the judge will be obliged to recuse").