Opinion 18-174

December 11, 2018

Digest:         A judge may permit his/her spouse to include factual information about the judge’s personal story in the spouse’s campaign literature, but without mention of the judge’s judicial status or title. The judge may agree to be included in a family photograph and/or family video and be identified as the candidate’s spouse in campaign literature, without reference to the judge’s judicial office and the judge does not appear in a judicial robe.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 100.5(A)(1)(c)-(f), (g); Opinions 17-126; 17-79; 06-94; 04-41; 00-75; 96-07.

Opinion:

         A judge’s spouse is running for election to non-judicial office in the county where the judge presides. The candidate spouse would like to (1) mention the judge’s personal story as an immigrant and a political refugee who eventually became a U.S. citizen, (2) include photographs of the judge as a young child, and (3) use family photos and videos including the judge in his/her campaign. The judge asks if he/she may accede to these requests.

         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]). Thus, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]), and must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).

         Although a judge’s spouse “remains free to engage in his/her own bona fide independent political activities” (Opinion 17-126), a judge may not publicly endorse another candidate (see 22 NYCRR 100.5[A][1][e]) or otherwise engage in political activity in support of his/her spouse (see e.g. Opinion 00-75). Nonetheless, a judge may appear in a family photograph for the campaign of a spouse or first-degree relative, provided no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting (see Opinions 17-79; 06-94; 04-41; 00-75; 96-07).

         While we have not previously addressed use of a judge’s personal history in his/her spouse’s campaign literature, we conclude it is permissible subject to similar limitations. Thus, this judge need not prohibit his/her spouse from including a factual description of the judge’s life experiences in campaign literature, accompanied by photographs of the judge as a child, provided there is no reference to the judge’s title or judicial status.

         Likewise, we have not specifically addressed a judge’s obligation when his/her candidate spouse wishes to use a video including the judge in his/her campaign for non-judicial office. We find no reason to establish a different standard for a family video or other type of electronic media, as opposed to a family photograph. Accordingly, the judge need not prohibit his/her spouse from using a video or other electronic media where the judge appears, provided there is no reference to the judge’s judicial title or status and does not appear in a judicial robe.

         Of course, when appearing in such family videos, the judge must not publicly endorse his/her spouse, request donations for hm/her, or otherwise engage in impermissible political activity (see e.g. 22 NYCRR 100.5[A][1][c]-[f], [g]).