Opinion 06-94

June 9, 2006

Digest:         (1) A judge may appear in a family photograph and may be identified as the spouse of the candidate in the spouse’s campaign literature, but no mention or reference should be made to the judge’s status or judicial title. (2) A judge is not obligated to discourage his/her spouse from displaying a campaign sign supporting the spouse’s own election on the lawn of the marital residence. (3) A judge is not prohibited from driving an automobile registered in the name of the spouse on those occasions when it is necessary or particularly convenient, where the spouse’s car displays a bumper sticker supporting the spouse’s candidacy.

Rules:          22 NYCRR Part 100 (Preamble); 100.2(C); 100.5; 100.5(A)(1)(e); Opinions 04-41; 00-75 (Vol. XIX); 99-118 (Vol. XVIII); 90-77 (Vol. V).

Opinion:

         A judge’s spouse is engaged in a contested election to a municipal school board. The judge makes several inquiries regarding use of the judge’s name or photograph in the campaign literature, the presence of campaign signs on the marital real property, and driving the spouse’s car if it displays his/her campaign bumper sticker.

         At issue are the rules barring judges from participating in political activity, as set forth in section 100.5 of the Rules Governing Judicial Conduct, including the prohibition barring the public endorsement of a candidate for public office, and the prohibition against lending the prestige of judicial office to advance the private interests of others. 22 NYCRR 100.2(C). In particular, the candidate implicitly raises the issue of how those rules apply where the candidacy in question is that of the judge’s spouse. In addressing that question, the Committee has previously concluded that a judge may appear in a family photograph and be identified as the spouse of the candidate on the spouse’s campaign palm card and literature. No mention or reference may be made, however, to the judge’s status, title or office. Opinions 04-41; 00-75 (Vol. XIX). Those opinions are applicable and the inquiring judge is similarly obligated.

         The judge is not obligated, however, to discourage the spouse from displaying a campaign sign supporting the spouse’s election on the lawn of the marital residence. Although this Committee has previously determined that a judge should advise his/her spouse not to place signs endorsing other political candidates on the marital property, the instant matter is clearly and significantly distinguishable, in that the spouse is fully entitled to exercise his/her rights in support of his/her own candidacy, and at the location where he/she resides, regardless of the fact that the judge also resides there. Opinions 99-118 (Vol. XVIII); 90-77 (Vol. V). Finally, the judge is not prohibited from driving a car registered in the name of the spouse, regardless of the fact that the car displays a bumper sticker supporting the spouse’s candidacy. The judge should exercise discretion in that regard, however, using the car only when necessary or particularly convenient.

         In each of these situations, as in those previously confronting the Committee, we are guided by the prohibitions on political activity contained in section 100.5, including the prohibition against endorsing any candidate for election to public office and the need to avoid the use of the prestige of judicial office to advance the private interests of others. At the same time, we fully recognize that the application of such restrictions should not and need not distort or ignore the realities of normal familial relations, and especially the public perception of those relationships. Further, the political rights of a candidate for public office who happens to be married to a judge cannot be ignored. The advice rendered herein sets forth the proper balance, and in our view meets the mandate of Part 100 which states that “[t]he rules governing judicial conduct are rules of reason.” 22 NYCRR Part 100 (Preamble).