Opinion 20-157/20-160

October 29, 2020

Digest:         A judge need not object to their spouse independently hosting a political fund-raiser for a candidate at the marital home, but the invitations must not refer to the judge and the judge must not appear or participate in the event.

Rules:          22 NYCRR 100.2; 100.2[A]; 100.5(A)(1); 100.5(A)(1)(c)-(d), (g); 100.5(A)(2)(v); Opinions 19-148(B); 15-62; 12-20; 08-168; 06-183; 06-147; 04-41; 00-75; 98-22; 90-77.

Opinion:  

         A judge asks if their spouse may host a political fund-raiser for a candidate the spouse supports at the couple’s marital residence, “if the judge absents him/herself.” A second judge likewise asks whether their spouse, who holds a leadership position in a local political club, may host a fund-raiser at their home for candidates the spouse personally supports and is passionate about, if the judge is not in attendance.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “directly or indirectly engage in any political activity,” except as expressly permitted under the Rules (22 NYCRR 100.5[A][1]). The Rules specifically prohibit a judge from participating in another’s campaign, attending political gatherings and otherwise engaging in any partisan political activity (see 22 NYCRR 100.5[A][1][c]-[d], [g]).

         We have recognized that the Rules “do not apply to a judge’s spouse, who remains free to engage in his/her own bona fide independent political activities” (Opinion 12-20; accord e.g. Opinions 19-148[B] [spouse serving as political party committee member]; 15-62 [spouse’s LLC renting storefront to political organization]; 08-168 [spouse serving as treasurer of political party committee]; 98-22 [spouse making political contribution]). Thus, for example, a judge need not prohibit their spouse from serving as secretary “for the local political party whose support [the judge] will [] soon be seeking for re-election” (Opinion 12-20).

         In Opinion 06-147, we advised that a judge’s spouse may use the marital residence to host campaign-related planning meetings and/or campaign fund-raising events to further the spouse’s own political campaign and the judge need not prohibit or object to that use. In so doing, we “overrule[d]” certain prior opinions “to the extent they differ from these views” (id.). We applied the same reasoning where the judge’s child resided in a distinct living area of the judge’s home, and the child was running for election (see Opinion 06-183). There, we again concluded the judge need not object to their child’s use of their joint residence in furtherance of the judge’s child’s campaign, but again said the judge “should not attend nor should the judge be present during any fund-raising or post-fund-raising political activity hosted by the judge’s child/candidate” (id.).

         Technically, however, these two opinions only considered use of the joint residence by the judge’s candidate relative in furtherance of the relative’s own political campaign. The present inquiry involves a judge’s spouse use of the marital home for a fund-raiser for other candidates.

         We are again reluctant to circumscribe the bona fide independent political activity of a judge’s spouse unnecessarily. We note that many of a spouse’s political activities (e.g. making contributions, serving on a party committee or a campaign committee for other candidates) will ordinarily benefit other candidates. Where the spouse is politically active and/or a party leader, the spouse may be expected to host political fund-raisers in a range of venues for the party’s candidates. Because spouses can and do have separate political identities, we do not believe that one spouse’s use of the marital home for political activity necessarily implicates the other spouse in that activity. Nor is there a greater likelihood of confusion when the spouse is raising funds for another candidate, rather than for their own campaign.

         Thus, we conclude the judge need not object to their spouse hosting a political fund-raiser for another candidate at the marital home, provided the event is independent of the judge and the judge’s name is not on any invitation. Of course, the judge also must not appear or participate in the event.²

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1 We note these two judges are not in their window period for election or re-election to judicial office. During the applicable window period, a judge may attend political events in furtherance of their own election campaign, subject to limitations on the price and number of tickets (see 22 NYCRR 100.5[A][2][v]).

² The notes on Opinions 04-41, 00-75, and 90-77 shall be modified as necessary to reflect the views herein.