Opinion CJE Opinion No. 98-4

Date: 03/19/1998
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.

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Committee on Judicial Ethics

Table of Contents

Political Activity by Family Members

You ask the Committee's advice regarding the applicability of the Code of Judicial Conduct to political activity by members of your family. You state that your [spouse] is a former elected official who has remained active in politics. Periodically,[s]he organizes and attends political strategy meetings and fund-raising events in support of various candidates. Your children (who live at home but who are not your dependents for tax purposes) are also politically active and support various candidates by displaying bumper stickers on family automobiles registered to either you or your [spouse] and by holding signs and distributing literature in public places. Both your [spouse] and your children contemplate contributing funds in support of political candidates.

You ask generally what restrictions are imposed on these activities by members of your family. Specifically, you ask

        * whether your [spouse] may make political contributions from checking accounts you and [s]he maintain jointly,

        * whether bumper stickers in support of political candidates may be placed on cars registered to you, and

        * whether a sign supporting a candidate may be placed on the lawn of your home, which you own jointly with your [spouse].

On an unrelated matter, you also ask whether you may continue to serve as a member of the board of trustees of a private secondary school. In that role, you have provided commentary and analysis on various legislative proposals relating to education which are pending before the State Legislature.

While the Code of Judicial Conduct in some instances will reach the conduct of a judge's family (see, for example, Canon 5 (C) (4) relating to the receipt of gifts), the Canon referring to political activity addresses only the judge's conduct. Canon 7 (A) (1) provides, among other things, that a judge should not "publicly endorse a candidate for public office" (subsection (b)) and 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."

None of your questions relate to your own conduct. However, a judge may be so closely identified with the conduct of family members that Canon 7 will be implicated. Accordingly, 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. Compare In the Matter of Troy, 364 Mass. 15, 67 (1973) where the Supreme Judicial Court gave "fair warning" that such activities "do not enhance the public image of the courts or the administration of justice" and will run afoul of Canon 7. Thus, while your [spouse] may attend political gatherings, you may not accompany him/her. 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 s. 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.

Lastly, your [spouse] and children may make political contributions in their own names. However, such contributions must be made from their own, separately maintained funds and not, for example, from a joint checking account with you. As noted by the New Jersey Supreme Court, marital assets "normally are marked by a lack of an identifiable interest of either spouse, thus at least suggesting indirect involvement of the judge." Application of Gaulkin, 351 A.2d 740 (N.J. 1976). See also In the Matter of Briggs, 595 S.W.2d 270 (Missouri 1980); West Virginia Advisory Opinion (August 28, 1995); Kansas Advisory Opinion JE-13; New Hampshire Advisory Opinion 78-3; and Florida Advisory Opinion 84-19. The same could be said of joint accounts between parent and child.

As to your second question regarding service on the board of trustees, Canon 5 (B) provides that a "judge may serve as [a] . . . trustee, or nonlegal advisor of an educational . . . organization" so long as 1) the organization does not engage "in proceedings that would ordinarily come before [her] or will be regularly engaged in adversary proceedings in any court," 2) she does not solicit funds for the organization "or permit the use of the prestige of [her] office for that purpose," and 3) she does not give "investment advice" to the organization. Accordingly, subject to these restrictions, you may serve as a trustee. However, "commentary and analysis" on pending legislation may, in some circumstances, constitute legal advice proscribed by the Canon. Without more specific information, we are unable to render an opinion at this time as to the applicability of 5 (B) to that role.

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