Opinion 10-128

October 28, 2010

Digest:         A judge may not display on his/her vehicle a slogan which has been adopted by a partisan political party and is used by that party to signal discontent with certain political trends deplored by the party’s adherents.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 100.5(A)(1)(i); 100.5(A)(1)(ii); 100.5(A)(1)(c); Opinions 07-169; 07-167; 06-94; 99-118 (Vol. XVIII); 96-112 (Vol. XIV).

Opinion:

A judge asks whether he/she may place a magnetic sign on the back of his/her vehicle which depicts the American flag and the following text: “Take Back America.” According to the inquiring judge, the text “is totally generic and ambiguous and leaves the message entirely up to the [viewer].” However, despite the judge’s assurances, the Committee believes that the text is a slogan that is in fact known to be associated with a partisan political party. The slogan is currently used by that party nationwide to signal discontent with certain political trends deplored by the party’s adherents and to promote the party’s candidates who promise to reverse those trends.

A judge must always avoid impropriety and its appearance(see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), and must not engage in any direct or indirect political activity except as specifically authorized by law or by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1][i]). Although a judge may vote and identify him/herself as a member of a political party (see 22 NYCRR 100.5[A][1][ii]), a judge may not otherwise engage in any partisan political activity except in furtherance of the judge’s own campaign for elective judicial office during a specified “window period” (see 22 NYCRR 100.0[Q]; 100.5[A][1][c]).

The Committee has previously advised that a judge may not publicly display partisan political signs on the real property where the judge resides, as this would create a “perception of a judicial endorsement and the lending of the prestige of judicial office to advance the private interests of others” (Opinion 99-118 [Vol. XVIII]; see also Opinion96-112 [Vol. XIV]). Even if the judge does not own the real property where he/she rents office space, and thus lacks authority to prevent political signs from being placed, the judge must “make every reasonable attempt” to request their removal from such property (Opinion 07-167). Likewise, although a judge’s spouse has a right to engage in his/her own independent political activity, a judge must nonetheless “strongly urge” his/her spouse not to place political signs on their joint residence (Opinion 99-118 [Vol. XVIII]; see also Opinion 07-169). This Committee has even advised that if a judge’s spouse’s car displays a bumper sticker supporting the spouse’s candidacy, the judge must “exercise discretion” and drive the vehicle “only when necessary or particularly convenient” (see Opinion 06-94).

In the present inquiry, the Committee disagrees with the inquiring judge’s view that the magnetic sign he/she wishes to display on his/her vehicle is “generic and ambiguous.” To the contrary, the slogan is known in contemporary America to be associated with a partisan political party and is used by it to signal discontent with certain political trends deplored by the party’s adherents. Thus, under the circumstances presented, placing these words alongside an American flag constitutes a prohibited partisan political statement, and it would be inappropriate for a judge to display this message on his/her vehicle (see 22 NYCRR 100.5[A][1]; 100.5[A][1][c]; Opinions 07-169; 07-167; 06-94; 99-118 [Vol. XVIII]; 96-112 [Vol. XIV]).