Opinion 06-147

June 7, 2007

Digest:         A judge outside his/her window period may not attend the post-election gathering sponsored by his/her spouse’s campaign, nor may the judge attend the out-of-state dinner hosted by a high-ranking congressional leader and financed by the congressional leader’s campaign funds. Although the judge need not prohibit the judge’s spouse from using the joint marital home to host campaign-related meetings and/or fund-raising events in furtherance of the spouse’s own campaign for office, the judge may not appear at such events. A judge may march in a parade, as long as the judge marches along with the other dignitaries and judges in attendance, rather than with his/her campaigning spouse.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(1)(c)-(e) and (g); 100.5(A)(4)(a)-(c); Opinions 06-183; 04-144; 04-41; 00-75 (Vol. XIX); 99-118 (Vol. XVIII); 99-112 (Vol. XVIII); 98-49 (Vol. XVI); 98-111 (Vol. XVII); 98-80 (Vol. XVII); 96-148 (Vol. XV); 96-112 (Vol. XIV); 92-129 (Vol. X); 91-55 (Vol. VII); 90-77 (Vol. V); 89-48 (Vol. III).

Opinion

         A judge whose spouse is an elected, non-judicial official asks four questions regarding appearances with the spouse during the spouse’s re-election campaign. The judge asks:

         1) May the judge attend the post-election “festivities” in a hotel where election results are tallied and the spouse will address scores of supporters and the press regarding the election?

         2) May the judge escort the spouse to an out-of-state dinner hosted by a high-ranking congressional leader, where the dinner is partisan in nature and paid for out of the congressional leader’s campaign funds?

         3) May the spouse use the marital residence to host campaign-related planning meetings and/or campaign fund-raising events?

         4) May the judge march in a parade along with the spouse, other dignitaries and elected officials, including other judges?

         The Rules Governing Judicial Conduct generally prohibit partisan political activity by judges outside of a specific “window period” in which the judge him/herself is a candidate for judicial office. 22 NYCRR 100.0(Q); 100.5(A). The inquiring judge is not currently within such a “window period.”

         The Rules specifically prohibit a judge from participating in another’s campaign, attending political gatherings and otherwise engaging in any partisan political activity. 22 NYCRR 100.5(A)(1)(c)-(d) and (g). Therefore, the judge may not attend the post-election gathering sponsored by the spouse’s campaign, nor may the judge, together with the spouse, attend an out-of-state dinner hosted by a high-ranking congressional leader and financed by the congressional leader’s campaign funds. Opinions 04-41; 00-75 (Vol. XIX); 99-112 (Vol. XVIII); 98-80 (Vol. XVII); 92-129 (Vol. X); 89-48 (Vol. III).

         The Rules Governing Judicial Conduct prohibit a judge from directly or indirectly participating in partisan political activity. 22 NYCRR 100.5(A)(1); 100.5(A)(4)(a)-(c). However, these rules do not restrict the bona fide, independent political activity of a judge’s spouse or any other member of the judge’s family. Opinions 06-183; 99-118 (Vol. XVIII); 98-111 (Vol. XVII); 96-112 (Vol. XIV). Therefore, the judge’s spouse may use the marital residence to host campaign-related planning meetings and/or campaign fund-raising events to further his/her own political campaign and the judge need not prohibit that use.

         Although the judge need not leave the residence while the planning meeting is in progress, the judge may not appear at the meeting and should make reasonable efforts to avoid contact with the meeting’s attendees if the judge chooses to remain. 22 NYCRR 100.5(A)(1)(g); Opinion 06-183.

         As for the spouse holding a campaign fund-raiser in the marital residence, the judge should absent him/herself from the residence for the event’s duration.

         We now overrule Opinions 04-41; 00-75 (Vol. XIX) and 90-77 (Vol. V) to the extent they differ from these views.

         This Committee has previously determined that judges may march in parades sponsored by municipalities or by civic, charitable, ethnic, cultural, or other not-for-profit organizations unless the parades are inseparable from the sponsoring organizations’ fund-raising initiatives. Opinions 04-144; 98-49 (Vol. XVI); 96-148 (Vol. XV); 91-55 (Vol. VII). However, in light of the spouse’s political candidacy and the judge’s obligation to avoid political activity outside his/her window period, the judge should walk alongside the other marching dignitaries rather than with his/her campaigning spouse. 22 NYCRR 100.5(A)(1)(e).