| Date: | 09/20/2005 |
|---|---|
| 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.
You seek an opinion whether your adult daughter, who shares your home but lives independently, may display a campaign sign in front of your home in support of the political campaign of your son, for whom she is campaign manager.
Background.
One of your children, an adult son, is a candidate for public office in the city where you live. He and his spouse do not reside in your home. Your daughter, who has been living out-of-state for several years, has returned to Massachusetts to manage the campaign. This is a full-time endeavor, which is coordinated from a campaign headquarters where she maintains her office.
While here to manage the campaign, your daughter resides in your home in a suite of rooms that is separate from the living space occupied by you and your spouse. You share a common entrance -- there is only once entrance readily accessible from the street and driveway -- and a common kitchen. Your daughter maintains her own telephone and wireless services and contributes to the support of the household. In addition to her job as campaign manager, she works part-time as a consultant for a nonprofit educational institution. She occasionally conducts meetings in her office at the house, some of which relate to her work as a campaign manager and some of which relate to her work as a consultant. Your question is whether your daughter can display a political sign for her brother's campaign on the lawn outside your house, since the house is her primary residence, she contributes to the support of her living space, she is not a dependent, and the sign directly relates to her work as the campaign manager.
Discussion.
Resolution of this issue turns principally on Canon 5 of the Code of Judicial Conduct, which provides that "A Judge Shall Refrain From Political Activity." (1) This provision is unequivocal in its statement that a judge "shall not . . . publicly endorse a candidate for public office." Section 5 A (1) (b). While burdening a judge's ability to be part of the civic life, this provision requires that the judge "conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Commentary to Canon 5, citing Section 2 A. The Code sweeps broadly and envisions that judges will refrain from all political activity. The language of the commentary is expansive: "The judge may not engage in any partisan displays of public support, such as driving an automobile with a partisan bumper sticker, posting a campaign sign outside of the judge's residence, signing nomination papers for a political candidate or a ballot issue, carrying a campaign sign, distributing campaign literature, or encouraging people to vote for or give money to a particular candidate or political party." Id. The commentary recognizes the close link between a judge and the judge's immediate family, stating that "[a] judge may not avoid the restrictions imposed by this Section by making contributions through a spouse or other family member. Political contributions by the judge's spouse must result from the independent choice of the spouse, and checks by which such contributions are made shall not include the name of the judge." Id. Also relevant to this inquiry are the concerns of Section 2 B, which states that "[a] judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." See CJE Opinion Nos. 2003-8, 99-16, and 98-4. Prior judicial interpretations of the earlier (and essentially identical) provisions of the Code as it existed prior to October 1, 2003, make clear that a judge's active involvement with a political campaign is prohibited. See generally In re Troy, 364 Mass. 15, 64-67 (1973) (stating that the Code holds judges "to more definite and high standards of judicial conduct and private behavior and practices than in the past").
As the committee concluded in CJE Opinion No. 2003-8, "[t]here appears no basis either in the text of [the Code] nor in the policies behind it to suggest that a campaign by a family member should be exempt from this prohibition." Consequently, "in your public behavior you must scrupulously avoid public endorsement of your son's campaign, as challenging as that prohibition might be." The committee has stated that when a judge's spouse or adult children wish to raise money for, or otherwise support, political campaigns (including placing a sign on the lawn of the home owned jointly by the judge and his or her spouse), the judge "must remain sufficiently divorced from the conduct of members of [his or her] family to ensure that there is not a public perception that [the judge] is endorsing a political candidate." CJE Opinion No. 98-4. The question you pose is, in essence, whether your daughter's act of placing a campaign sign on the lawn of your home (which she shares) violates the Code of Judicial Conduct by creating the public perception of your political endorsement.
The Code recognizes that it governs only judges and cannot command the conduct of a judge's family. That being said, the Code also recognizes that the conduct of a member of the judge's family residing in the judge's household casts a particularly long shadow over the judge. For example, under Section 3 E (1) (g), a judge must disqualify himself or herself when a member of his or her household has an economic interest in a proceeding, a relationship to a party to the proceeding, or any other more than de minimis interest in the proceeding, that could be substantially affected by the outcome. Similarly, Section 4 D (5) directs that a judge should urge members of the judge's household to refrain from accepting gifts that could reasonably be perceived as intended to influence the judge in the performance of judicial duties.
Your letter indicates that although your daughter is contributing to the household, she is residing in your home. As such, the issue more precisely becomes whether you would be in violation of the Code if you were to allow her to place the sign in front of your home. The fundamental question is whether your daughter's act would create the appearance of a political endorsement by you, which would be strictly forbidden. Given the circumstances, the public would be hard pressed to separate out whether the political endorsement in the form of a sign in front of your home is your daughter's speech or yours. The presence of the sign therefore would implicate you directly in a political campaign. Since you presumably have control over your home, you are prohibited under the Code from allowing the display of the sign that appears to connect you to a campaign.
The committee recognizes that the Code's prohibition on political activity imposes a unique burden on a judge's natural desire to give support to the political campaign of an immediate family member. Only the most fundamental and compelling countervailing value justifies such an encroachment; separating the judge's judicial role from political activity is at the heart of our separation of powers, and the Code envisions that this separation be scrupulously honored.
Conclusion. For the reasons given, the committee is of the view that you may not permit your daughter to place the sign in front of your home.
