Opinion 19-113

December 12, 2019

Digest:         A judge whose first-degree relative is running for office may permit him/her to mention the judge’s prior service in non-judicial office in the relative’s campaign advertisements, provided there is no reference to the judge’s eventual judicial title or status.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 100.5(A)(1)(e); Opinion 18-174.

Opinion:

         Before assuming the bench, the inquiring judge held non-judicial office. His/her first-degree relative is now likewise running for office, and wishes to highlight the “family’s long involvement” in the community.¹ As relevant here, the relative’s proposed 30-second television advertisement would “include prior campaign brochures and headlines from newspaper articles” reflecting the judge’s prior election to non-judicial office, along with contemporaneous family photographs from that time period. There would be no reference to the judge’s eventual judicial status or title. The judge asks if he/she may permit his/her relative to use these materials as described.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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]). For example, a judge must not publicly endorse another candidate, including a relative (see 22 NYCRR 100.5[A][1][e]).

         In Opinion 18-174, a judge’s spouse was seeking election in the county where the judge presides. The judge asked if his/her spouse could use a “family photograph and/or family video” including the judge and mention “the judge’s personal story as an immigrant and a political refugee who eventually became a U.S. citizen” in the spouse’s campaign literature. We concluded it was permissible. As we explained (id. [citations omitted]):

[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.

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 [he/she] does not appear in a judicial robe.

         Here, the judge’s relative wishes to mention a different aspect of the judge’s personal story in the relative’s election campaign: the judge’s prior public service in non-judicial office. Significantly, the prior campaign materials and newspaper headlines reflecting the judge’s prior election to non-judicial office do not in any way refer to the judge’s eventual judicial title or status. We believe this is permissible, subject to the same limitations in prior opinions.

         Accordingly, we conclude the judge need not prohibit his/her first-degree relative from using images of campaign materials and newspaper headlines from the judge’s prior election to non-judicial office, along with family photographs from the same period, provided there is no reference to the judge’s judicial title or status. Of course, the judge must not publicly endorse his/her first-degree relative, request donations for him/her, or otherwise engage in impermissible political activity (see Opinion 18-174).

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¹ While it is immaterial for present purposes whether the judge’s relative is seeking judicial or non-judicial office, we note that all candidates for elective judicial office, including non-judges, may seek guidance from the Judicial Campaign Ethics Center (www.nycourts.gov/ip/jcec) concerning the propriety of their proposed campaign advertisements under Part 100.