Opinion 17-79

May 4, 2017

Digest:         A judge may appear in a family photograph with his/her first-degree relative in the relative’s campaign literature, provided the judge does not wear a judicial robe and nothing in the literature identifies him/her as a judge.

Rules:          22 NYCRR 100.0(C); 100.2; 100.5(A)(1); 100.5(A)(1)(d)-(e), (g); Opinions 14-64 n 1; 10-75; 96-07.

Opinion:

         An appellate judge, whose first-degree relative¹ is running for election to public office, asks if he/she may be included in a family photograph in the relative’s political campaign literature. The campaign literature will contain no reference to the judge’s judicial capacity.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and may not “directly or indirectly engage in any political activity” except as expressly authorized (see 22 NYCRR 100.5[A][1]). Moreover, prohibited political activity includes participating in political campaigns (see 22 NYCRR 100.5[A][1][d]), attending political gatherings (see 22 NYCRR 100.5[A][1][g]), and publicly endorsing other candidates (see 22 NYCRR 100.5[A][1][e]).

         However, a part-time judge seeking re-election may include in his/her campaign literature a family photograph which includes the candidate’s spouse, who is a full-time judge, provided the spouse is not identified or referred to “by title or position” (Opinion 96-07).² As the Committee explained (id.):

Just as it would be normal and usual for a candidate to be accompanied and therefore seen with a spouse at civic, community and other public, but not political events, during a campaign, it would be normal and usual to use a family photograph in campaign literature. To exclude the spouse-judge from the photograph would seem odd and, indeed, misleading. But to prohibit entirely any use of a photograph that includes the judge seems unnecessary, so long as proper precautions are taken. The crucial requirement, therefore, is that the photograph itself or any reference thereto, must not identify the judge by title or position. In the view of the Committee, that is a necessary condition to the use of a family photograph. Thus, in the opinion of the Committee, the use of a photograph under such circumstances, would not constitute impermissible political activity as proscribed by section 100.5 of the Rules Governing Judicial Conduct.

Subsequently, relying on Opinion 96-07, the Committee advised that a sitting judge could appear in his/her child’s campaign photograph, subject to the same limitations (see Opinion 10-75 [noting that the judge must “not wear a judicial robe” or otherwise be identified as a judge in the campaign literature]).

         The Committee can see no reason to apply a different standard here. Accordingly, this judge may appear in a family photograph with his/her first-degree relative in the relative’s campaign literature, provided the judge does not wear a judicial robe and nothing in the literature identifies him/her as a judge.

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         ¹A first-degree relative includes a child, step-child, parent, or step-parent (see Opinion 14-64 n 1; cf. 22 NYCRR 100.0[C]).

         ²Although the digest for Opinion 96-07 states that the judge must not be “identified or referred to by name,” this proviso does not appear in the body of the opinion or in Opinion 10-75.