May 26, 1989

The Ethics Advisory Committee has been asked for its opinion as to whether a judge may provide campaign assistance, such as preparing brochures for mailing, to a school board candidate in the privacy of the candidate's home.

It is the committee's opinion that the Code Judicial Conduct 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.

The question presented is whether assisting a school board candidate's campaign efforts in the privacy of the candidate's home is attending a "political gathering", prohibited by subsection (3).

Although the Code does not define a "political gathering'' it is the committee's opinion that its plain and ordinary meaning is any gathering of two or more people for political purposes.

In Informal Opinion No. 88-7 this committee discussed whether a judge may host or attend a mass meeting. The committee concluded that a judge should not attend a mass meeting because the term "mass meeting" falls within "political gathering" as that term is used in the Code.

As a basis for its conclusion, the committee cited Canon 28, the precursor to Canon 7A of the Code, Canon 28, prior to 1950, read:

                  While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another. He should avoid making political speeches, making or soliciting payment of assessments or contributions to party funds, the public endorsement of candidates for political office and participation in party conventions.

                 He should neither accept nor retain a place on any party committee as party leader, nor act nor engage generally in partisan activities.   

Informal Opinion C-486 by the Committee on Ethics and Professional Responsibility indicates that those states adhering to the principle of the nonpartisan judiciary, prohibit all political activity by judges and judicial candidates. This prohibition includes acting as a party leader, holding office in a political party or organization and 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, 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. "

In Advisory Opinion No. 19, the Interim Advisory Committee on Judicial Activities found that a judge was not permitted to be a member of a political club. Citing Canon 28's prohibition against direct or indirect participation by a Judge in partisan political activities, the committee 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.

Formal Opinion 312 delineated political activities prohibited by Canon 28 which included "appearing at or participating in fund-raising dinners or other affairs", and "engaging generally in partisan activities."

In the present situation, the judge inquires whether he or she may provide campaign assistance in the privacy of the candidate's home. The judge's inquiry does not indicate whether other campaign workers would be in attendance or take into consideration the possibility that some one may visit the home while the judge is present, or that the candidate will mention the judge's participation in the campaign effort.

Accordingly, it is the committee's opinion that by providing campaign assistance to a school board candidate in the candidate's home, the judge would necessarily be meeting with the candidate, and perhaps others, for the express purpose of engaging in political activities and that such activity constitutes attendance at a political gathering which is prohibited by the Code.

In conclusion, it is the committee's opinion that a judge should not assist a school board candidate's campaign efforts because of the general prohibition against engaging in political activities.