Opinion 07-136

October 18, 2007

Digest:         A candidate for judicial office may include his/her photograph taken with a relative, who is a state trooper in uniform, in his/her campaign literature, so long as neither the photograph nor the context in which it appears suggests that the candidate would support law enforcement interests over other parties that may appear before his/her court.

Rules:          Matter of Watson, 100 NY2d 290 (2003); 22 NYCRR 100.5(A)(2)(ii); Opinions 07-89; 03-64; 96-07 (Vol. XIV);89-125 (Vol. IV).

Opinion:

         A candidate for judicial office asks if it is ethically permissible to include his/her photograph taken with a relative, who is a state trooper in uniform, in his/her campaign literature. The text of the campaign literature will describe their familial relationship.

         A candidate for judicial office may include his/her photograph in campaign materials (see 22 NYCRR 100.5[A][2][ii]) and, with some restriction, may use a photograph of him/herself with others for use in campaign materials (see Opinions 07-89 [Town Justice running for election to judicial office may include photograph in his/her campaign literature depicting County Court judge administering Town Justice’s oath of office]; 03-64 [judge may use photograph of him/herself with another candidate for elective office in judge’s campaign literature, but should take steps to avoid having photograph used by other candidate as evidence of judge’s endorsement]; 96-07 [Vol. XIV] [part-time judge seeking re-election may include in his/her campaign literature family picture that includes candidate's spouse who is a full-time judge, provided that spouse is not identified or referred to by name or office.]; 89-125 [Vol. IV] [judge who is a candidate for elective judicial office may permit Democratic party to include his/her photograph in a pamphlet with photographs of other candidates for public office who are running on the same slate]; see also Matter of Watson, 100 NY2d 290 [2003] [sanctions may be imposed for statements that, in context, "unequivocally articulate a pledge or promise of future conduct or decisionmaking that compromises the faithful and impartial performance of judicial duties"].

         The judge in the present inquiry, therefore, may use a photograph of him/herself and his/her relative, who is a state trooper depicted in uniform, in campaign materials, so long as neither the photograph nor the context in which it appears suggests that the candidate would support law enforcement interests over other parties that may appear before his/her court.

         The Committee notes that it can address only matters of judicial ethics and that the candidate’s relative should seek guidance from appropriate authorities as to whether he/she may permit his/her photograph in uniform to be used for political campaign purposes.