September 7, 1989

The Ethics Advisory Committee has been asked for its opinion as to whether the Code permits a justice court judge to participate in the judge's spouse's campaign for county office. Specifically, the judge would like to know whether he or she may attend public gatherings where the spouse is appearing as a candidate and whether the judge may accompany the spouse as he or she campaigns.

It is the committee's opinion that the Code prohibits such political activity.

Canon 7 of the Code of Judicial Conduct provides in pertinent part:

B. A judge or a candidate for a judicial office who has been confirmed by the Senate should not 

(1) act as a leader or hold any office in a political organization; 

(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office; 

(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings or purchase tickets for political party dinners or other functions, except as authorized in Canon 7C; or 

(4) take a public position on a non partisan political issue which would jeopardize the confidence of the public in the impartiality of the judicial system.  

Canon 7C permits a judge who is running for office to speak to public gatherings on his or her own behalf.

Although the justice court judge is a part-time judge, as defined by the Code, he or she is still required to comply with Canon 7 of the Code of Judicial Conduct.

By attending public gatherings where the spouse is appearing as a candidate, the judge would be publicly endorsing a candidate for public office, prohibited by Canon 7B(2) and attending a political gathering, prohibited by Canon 7B(3). Similarly, accompanying the spouse while the spouse campaigns would be tantamount to an endorsement of the spouse's candidacy and would involve regular appearances at political gatherings.

This committee has previously stated that political activity by a judge was prohibited by the Code. In Informal Opinion No. 88-7, this committee found that a judge was not permitted to host or attend a mass meeting.

In that opinion, the committee cited Informal Opinion C-486 by the Committee on Ethics and Professional Responsibility which indicates that those states adhering to the principle of the nonpartisan judiciary, prohibit all political activity by one seeking judicial office as well as by the incumbent in office. This prohibition includes permitting others to use the power or prestige of the office to promote candidacy for reelection or for the success of a political party. The purpose of Canon 28, the precursor to Canon 7, according to Informal Opinion C-486, was "to avoid a suspicion that the judge permits political considerations to affect his decisions and is directed primarily at the suspicion which may arise when he performs judicial service and at the same time engages in political activities."

Formal Opinion No. 113 of the American Bar Association Standing Committee on Professional Ethics further states that Canon 28 prohibited a judge from appearing at public political gatherings intended to further the candidacy of one running for a political office, and to speak or otherwise indicate support of the candidate sponsored by the meeting. In so holding, the Committee explained that the conduct would make the judge an active promoter of the interests of the candidate.

By attending public gatherings where the spouse is appearing as a candidate and otherwise accompanying the spouse as he or she campaigns, the judge would be actively promoting the interests of a candidate.

A similar conclusion was reached in Informal Opinion No. 89-7, where this committee found that the Code of Judicial Conduct prohibited a judge from providing campaign assistance to a school board candidate. In so holding, this committee relied in part on Advisory Opinion No. 19, where the Interim Advisory Committee on Judicial Activities found that a judge was not permitted to be a member of a political club. The committee in that opinion quoted Formal Opinion 113 of the American Bar Association Committee on Professional Ethics as follows:

A judge is entitled to entertain his personal views of political questions, but should not directly nor indirectly participate in partisan political activities. It is generally accepted in a rational philosophy of life that with every benefit there is a corresponding burden. Accordingly, one who accepts judicial office must sacrifice some of the freedom in political matters that otherwise he might enjoy. When he accepts a judicial position, ex necessitate rei, he thereby voluntarily places certain well recognized limitations upon his activities.

This committee further notes that Canon 7D(2) states that judges "should not request or encourage members of their families to do anything that the judge . . . may not do under this canon."

In Advisory Opinion No. 53, the Federal Advisory Committee on Judicial Activities states that a judicial officer has a duty to try to dissuade his or her spouse from participating in a political campaign. Furthermore, in the Reporter's Notes to the Code of Judicial Conduct regarding Canon 7B(a), it is stated

Although a candidate's spouse as a matter of legal right can hold an office in a political organization and can make speeches for other candidates for political offices, the candidate has the duty to try to dissuade his spouse from doing so. The Committee considered setting mandatory political conduct standards for members of the candidate's family, but rejected the idea because of lack of a means of enforcement.

Revised Advisory opinion No. 53 concluded that Canon 7 and Canon 2 (stating that a judge should avoid impropriety and the appearance of impropriety) adequately define a judge's obligation where the spouse engages in political activity. The Committee stated, "The committee does not advise spouses. Thus a judge should, to the extent possible, disassociate himself or herself from the spouse's political involvement." The committee explained that the judge should not accompany the spouse to any political functions, join in the use of the marital home for political meetings; or join in or approve any reference to the relationship between the judge and spouse in any communication relating to the spouse's political activity. The committee stated:

We note that if a judge's spouse participates in politics, that participation will undoubtedly increase the number of situations in which the judge will be obliged to recuse. This is especially true where the spouse is a candidate for elective office. We suggest that the judge make his or her spouse aware of such problems.

It is the committee's opinion that the judge is prohibited by the Code from participating in any manner in the judge's spouse's political campaign. Furthermore, although this committee does not advise spouses,' the judge does have a duty, pursuant to Canon 7D(2) and Advisory Opinion No. 53, to try to dissuade his or her spouse from participating in a political campaign.