2006-02: Political Activity of Judge’s Spouse on Behalf of Candidate for Public Office 

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.  This Opinion does not consider or address whether the 2023 Code affects the analysis or conclusion of the Opinion.  A table cross-referencing the 1993 Code to the 2023 Code can be found at IJEC CORRELATION TABLE. 

IJEC Opinion No. 2006-02

August 23, 2006

TOPIC

Political activity of judge’s spouse on behalf of candidate for public office

DIGEST

A judge’s spouse may engage in independent campaign activities in support of a candidate for public office including: (1) soliciting funds for the candidate; (2) publicly endorsing the candidate; (3) displaying a bumper sticker on a vehicle jointly owned by the spouse and judge and driven by the spouse; and (4) displaying a campaign sign in the yard of the home jointly owned by the spouse and judge.  When a candidate for election or retention, a judge must encourage a spouse to limit his or her activities in support of the judge’s candidacy to those political activities in which the judge is permitted to engage.

REFERENCES

Illinois Supreme Court Rules 62 and 67 and Committee Commentary; Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Montrose Medical Group v. Bulger, 243 F.3d 773 (3^rd Cir. 2001); Horstkoetter v. Department of Public Safety, 159 F.3d 1265 (10^th Cir. 1998); Wrzesinski v. Danielson, 231 F. Supp. 2d 611 (W.D. Mich. 2002); In re McCormick, 639 N.W.2d 12, 16, n.2 (Iowa 2002); MacKenzie v. Super Kids Bargain Store, 565 So.2d 1332 (Fla. 1990); In re Gaulkin, 351 A.2d 740 (N.J. 1976); ABA Model Code of Judicial Conduct Canon 5A(3) and Commentary (1990); Lisa Milord, The Development of the ABA Judicial Code 13 and 49 (1992); E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 98 (1973);  Interview: OPioneers! Pat Ciarrocchi Interviews Judges Jane R. Roth, Helen S. Balick and Roxana C. Arsht, 19 Del. Lawyer 28, 35 (2001); Timothy J. Carson, Lawyers at the Ready, 25 Pa Lawyer  2 (March/April 2003); Illinois Judicial Ethics Committee Ops. 01-09 and 03-06; U.S. Judicial Conference, Committee on Codes of Conduct Advisory Op. 53 (revised 1-16-98); Alabama Judicial Inquiry Commission Advisory Op. 04-845; Arizona Judicial Ethics Advisory Committee Ops.76-2 and 03-05; Arkansas Judicial Ethics Advisory Committee Op. 2002-06; Florida Judicial Ethics Advisory Committee Ops. 90-7 and 98-19; Indiana Commission on Judicial Qualifications Op. 2-93; Kansas Judicial Ethics Advisory Ops. JE 33 (1990), JE 61(1996) and JE 62 (1996); Ethics Committee of the Kentucky Judiciary Op. JE-50 (undated); Massachusetts Committee on Judicial Ethics Op. 98-4;  Michigan State Bar Standing Committee on Judicial Ethics Op. JI-122 (1999); New York Advisory Committee on Judicial Ethics Ops. 96-73, 96-80 and 96-112; Oklahoma Judicial Ethics Advisory Panel Op. 2000-7; South Carolina Advisory Committee on Standards of Judicial Conduct Op. 33-2001; Vermont Judicial Ethics Advisory Committee Op. 2827-10 (2004); Wisconsin Judicial Conduct Advisory Committee Op. 97-2; Bill Grady, et al., Judge Leaves Case for Propriety Sake, Chi.Trib., Nov. 28, 1989, Business Section at 3; Rochelle Olson, Pawlentys Brace For A New Life, Minn. Star Trib., Jan. 6, 2003, at A1.

FACTS

A judge’s spouse plans to campaign in support of a candidate for state’s attorney. The judge has not suggested or requested that the spouse become involved in the campaign. Campaign activities in which the spouse has agreed to participate include: (1) soliciting funds for the candidate; (2) publicly endorsing the candidate; (3) placing a bumper sticker on a vehicle jointly owned by the spouse and judge and driven by the spouse; and (4) displaying a campaign sign in the yard of the home jointly owned by the judge and spouse.  The judge is not a candidate for election or retention in the same election as the candidate for state’s attorney.

QUESTION

1. May the judge’s spouse engage in the specified independent campaign activities?

2. Does a judge have a duty to encourage his or her spouse to voluntarily adhere to the same standards of political conduct as apply to the judge?

OPINION

Question 1

A judge holds a highly visible and powerful office of public trust.  Because public confidence in the integrity and impartiality of the judiciary is essential to maintain that public trust, the state may legitimately prohibit irresponsible or improper conduct of judges that impairs, or appears to impair, a judge’s ability to carry out judicial responsibilities with fairness and independence.  See Ill. S. Ct. R. (SCR) 62 and Committee Commentary.

To promote public confidence in the judiciary, judicial codes of conduct preclude judges from engaging in political activities deemed inconsistent with the independence and impartiality required of judicial officers. In Illinois, Supreme Court Rule 67 prohibits judges from engaging in “inappropriate political activity.” For example, a judge may not publicly endorse a candidate for public office unless the judge is a candidate in the same election. SCR 67A(1)(b) and 67 B(1)(b)(iv). Rule 67 only applies to judges and candidates for judicial office and does not purport to bar a judge’s spouse from engaging in independent political activity. See SCR 67(B). No attempt is made to regulate the First Amendment rights of a spouse because unlike judges, spouses do not hold a special status or position in the judicial system justifying the curtailment of political freedoms.  Judges wield complete and final power over life, liberty, and property; spouses do not.  As a result, codes of judicial conduct do not, and cannot, regulate the independent political activities of a judge’s spouse.  SeeIn re Gaulkin, 351 A.2d 740, 745 (N.J. 1976) (1972 ABA Model Code does not “hint” at restricting independent political activity of a judge’s spouse); E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct 98 (1973) (spouse as a matter of legal right can hold office in a political organization and make speeches for candidates); IJEC Opinion No. 03-06 (“The restrictions on a judge’s political activities contained in [Rule] 67 do not generally apply to a judge’s spouse or other family members.”); Wisconsin Judicial Conduct Advisory Committee Op. 97-2 (“… the Code does not address political activities of a judge’s spouse, nor could it in view of the First Amendment.”); Arizona Judicial Ethics Advisory Committee Op. 03-05 (“But Canon 5A, which relates to political conduct in general, only applies to judges and judicial candidates, not their spouses or other family members.”); Indiana Commission on Judicial Qualifications Op. 2-93 (“Judicial spouses are not personally bound by the Code of Judicial Conduct and its restrictions on political activities.”); Massachusetts Committee on Judicial Ethics Op. 98-4 (“the Canon referring to political activity addresses only the judge’s conduct”);  and U.S. Judicial Conference, Committee on Codes of Conduct Op. 53 (revised 1-16-98).[1]

Although the right of a judge’s spouse to partake in independent political activity has been recognized as a general proposition, at least one court and several judicial ethics advisory committees have been unwilling to recognize the right of a spouse to engage in political expression when the form of expression involves property jointly owned by the spouse and judge.  Some advisory committees have determined that a spouse should not place a sign endorsing a political candidate on property jointly owned by a judge and spouse if the jurisdiction’s code of judicial conduct prevents the judge from doing so. See, e.g., New York Advisory Committee on Judicial Ethics Op. 96-112 (campaign sign should not be posted on marital property because to do so “may create the impression that the judge concurs with [the] wife’s endorsement…”); South Carolina Advisory Committee on Standards of Judicial Conduct Op. 33-2001 (sign on jointly held property would indicate that the judge is also campaigning for the candidate); and Massachusetts Committee on Judicial Ethics Op. 98-4; cf. In re McCormick, 639 N.W.2d 12, 16 n.2 (Iowa 2002) (noting, but not addressing, the issue of a judge’s spouse placing a campaign sign in the yard of the marital home).  Similarly, in In re Gaulkin, the court, after recognizing the right of a spouse to engage in political activity, opined that a spouse’s use of a jointly owned home for a political meeting would be prohibited. 351 A.2d 740, 747-48 (N.J. 1976). See also Kansas Judicial Ethics Advisory Committee Op. JE 33 (1990) (“meet the Governor” event hosted by judge’s spouse at marital home is prohibited because the meeting may be viewed as a political endorsement by the judge).

Taking a different approach to a spouse’s use of jointly held property for political expression, this Committee has previously determined that nothing in Rule 67 prohibits a spouse from hosting a reception for a political candidate in a home jointly owned with a judge.  IJEC Op. 01-09.  The rationale for the Committee’s conclusion that a spouse’s political rights do not end where joint marital property begins is threefold. First, as stated earlier in this opinion, codes of judicial conduct do not, and cannot, define rules of political conduct for spouses. Second, it is not reasonable for anyone to assume that married individuals share the same political views.  While marriage is many things, it is not a merger of the political thoughts and beliefs of the individuals joined in marriage.  To the contrary, marriage “is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut , 381 U.S. 479, 486 (1965) (Emphasis added).  Third, a judge and spouse have an equal right to use commonly owned property.  A judge does not possess a superior right in joint property or a right to dictate permitted and non-permitted uses.  It may be that spouses will agree on the uses to which their jointly held property is put but if an agreement is not reached, the judicial spouse cannot bar his or her spouse’s independent act by fiat or self-help.  This fact is acknowledged by Rule 67 which requires a judge to “prohibit” employees who serve at the judge’s pleasure from engaging in certain political acts but does not impose a similar duty on a judge to prohibit independent spousal political acts. SCR 67A(3)(b). A judge should not be subject to discipline for the independent act of another over whom the judge does not exercise authority and control. See Lisa Milord, The Development of the ABA Judicial Code 13 (1992); Ethics Committee of the Kentucky Judiciary Op. JE-50 (undated) (judge has no ability to prohibit spouse’s political activity and “no penalty attaches to his lack of success”); and Oklahoma Judicial Ethics Advisory Panel Op. 2000-7 (removal of a judge based upon the independent actions of a spouse is inappropriate); cf. Horstkoetter v. Department of Public Safety, 159 F.3d 1265 (10^th Cir. 1998) (state trooper cannot be disciplined for failing to remove a political sign placed by the trooper’s spouse on jointly owned property)[2] and Wrzesinski v. Danielson, 231 F. Supp. 2d 611 (W.D. Mich. 2002) (discharging court employee because spouse posts sign on joint property violates the First Amendment).

The Committee recognizes that some members of the public, upon observing a sign placed by a spouse on jointly held property, may erroneously conclude that the spouse’s independent political act is the act of the judge.  This will not be true in all cases and certainly will not be true when the spouse has a higher community or political profile than the judge.  The likelihood of a sign being misinterpreted as the judge’s act is also reduced by the accepted view that married individuals remain individuals with separate property rights and beliefs.  It is simply less likely today that the community will automatically consider the joint residence as the “judge’s” house.  Nevertheless, some people will misinterpret the campaign sign as a prohibited political endorsement by the judge.  Public perceptions may require disqualification of a judge if mandated by Rule 63C, but they do not justify curtailment of a spouse’s right to political expression.

Question 2

Having concluded that the restrictions on political activity found in Rule 67 are not applicable to spouses, the question remains whether judges have a duty to encourage spouses to voluntarily limit their political activities to those in which the judge is permitted to engage.

Rule 67A(3)(a) answers this question by requiring a judge, when a candidate for judicial office to, “… encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate.”  In other words a judge must encourage family members to limit their activities in support of the judge’s candidacy to those activities in which the judge may engage. Other than this very limited duty to encourage family members to limit campaign activities on behalf of a judge, Rule 67 does not require a judge to encourage a spouse or other family member to adhere in any other respect to the standards of political conduct applicable to judges.  See Committee Commentary to Rule 67A(3)(a) (“although a judicial candidate must encourage his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family members are free to participate in other political activity”) and Lisa Milord, The Development of the ABA Judicial Code 49 (1992).

Here, the judge is not a candidate and therefore has no duty to encourage his or her spouse to restrict any type of political activity including political activity that involves jointly owned property.  The judge and spouse may wish to discuss the impact that a proposed political activity could have on public perceptions and the judge’s ability to hear certain cases, but whether such discussions are held is dictated by the individuals’ marital relationship not the Code of Judicial Conduct.

CONCLUSION

Rule 67 does not prohibit a judge’s spouse from engaging in independent political activity including activity that makes use of property jointly owned with the judge. Therefore, a spouse, on behalf of a candidate for public office, may, among other things, (1) solicit funds, (2) make public endorsements, (3) display a bumper sticker on a vehicle jointly owned by the spouse and judge and driven by the spouse, and (4) display a campaign sign in the yard of the home jointly owned with the judge.

A judge is not required by Rule 67 to dissuade or discourage a spouse from engaging in political activity but when a candidate for election or retention, a judge must encourage family members to adhere to the same standards of political conduct in support of the judge’s candidacy as apply to the judge.

A unique set of circumstances could arise imposing a duty on a judge under Rule 62 to attempt to convince a family member to forego a contemplated act or to disavow a family member’s completed act. While the Committee does not speculate as to what special or unique circumstances would impose a sufficiently serious threat to public confidence in the judiciary so as to implicate Rule 62, it is clear that no such circumstances are present here.