2021-4: Judge’s Use of Photographs with Colleagues for Campaign Purposes

2021-4:  Judge’s Use of Photographs with Colleagues for Campaign Purposes

IJEC Opinion No. 2021-4

TOPIC:  A candidate-judge’s use of a photograph with non-candidate judicial colleagues for campaign purposes. 

DIGEST:  A candidate-judge may use a photograph taken with non-candidate judicial colleagues for campaign purposes where the photograph was taken at a public event and does not suggest endorsement on the part of the candidate-judge’s colleagues.

REFERENCES:  Illinois Supreme Court Rules 45, 62A, 65C(1), 67A(3)(a), 67A(3)(d)(ii), 67B(1)(b)(ii), and 67.B(1)(b)(iv); In re Steigmann, 17-CC-1 (August 13, 2018); Saefke v. Vande Walle, 279 N.W.2d 415, 417 (ND 1979); Rule 4.1(A)(10), ABA Model Code of Judicial Conduct; Rule 4.2(B)(8), Pennsylvania Code of Judicial Conduct; Inquiry Concerning a Judge, Sean M.A. Hatfield, State of Kansas Hearing Panel for Formal Judicial Complaints, No. 2348 (July 16, 2021); IJEC Judicial Election/Campaign FAQ’s, Question 18, page 4 (September 30, 2019); IJEC Opinion 94-3 (January 14, 1994); Judicial Conduct Reporter, Vol. 6, No. 1, Spring 1984; California Judges Association Opinion No. 36 (1987); Indiana Commission on Judicial Qualifications Opinion No. 1-14; Indiana Commission on Judicial Qualifications, Advisory Opinion No. 1-14; Florida Judicial Ethics Advisory Committee, Opinion 2010-18 (June 16, 2010); Florida Judicial Ethics Advisory Committee, Opinion 2014-10 (May 20, 2012); Montana Commissioner of Political Practices, Opinion Letter COPP-2015-AO-002, (March 24, 2015); New Mexico Advisory Committee on the Code of Judicial Conduct, Opinion 92-3, August 1992; New York Advisory Committee on Judicial Ethics, Opinion 07-135, October 18, 2007; New York Advisory Committee on Judicial Ethics, Opinion 05-101 (September 8, 2005; clarified and reissued June 20, 2019); Judicial Standards Commission of the State of North Carolina, Memo to North Carolina Judiciary, December 17, 2015; Ohio Board of Commissioners on Grievances and Discipline, Opinion No. 2003-8 (December 5, 2003); Texas Ethics Commission, Ethics Advisory Opinion No. 561 (June 17, 2021); Washington Public Disclosure Commission, Interpretation No. 00-03, July 25, 2000, amended June 28, 2012; and Washington Ethics Advisory Committee, Opinion 88-03 (March 11, 1988).

FACTS:   The inquiring judge is a judicial candidate who wishes to use a photograph of the judge in campaign literature.  The photograph depicts not only the judge, but several judicial colleagues; the other judges are not presently candidates for judicial office.  All judges are wearing their judicial robes.  The photograph was taken at the unveiling of a historical portrait being placed on display at the courthouse in a public area of the courthouse.

QUESTION:  Does the Code of Judicial Conduct prohibit a judge from using the photograph in campaign literature?

OPINION:   Just as a picture is said to be worth a thousand words, the ethical issues that might arise from the use of a photograph for campaign purposes are many and multifaceted.  Considered as simply another form of campaign “statement,” the fundamental rule applicable here is that a photograph must not “knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”  Supreme Court Rule 67A(3)(d)(ii).  A photograph that creates the false impression that some person has endorsed a judicial candidate – especially if that person is themselves ethically prohibited from making such an endorsement – would violate this prohibition.  

This opinion will examine a number of different issues that arise from the use of the photograph at issue, as well as other related questions which have arisen over the years.  The analysis here initially addresses photographs that are taken specifically for campaign purposes; the opinion will later discuss the “repurposed” campaign use of photographs not originally taken for campaign purposes, which describes the photograph at issue in the inquiry.  

Judge’s Appearance in a Campaign Photograph.

Supreme Court Rule 67B(1)(b)(ii) specifically permits a judge running for office to appear in “media advertisements supporting his or her candidacy.”  As photographs of the judicial candidate are likely to be a common feature of those advertisements, there is no doubt that photographs of candidate-judges are permitted.

As to non-judges appearing with the candidate-judge in a posed photograph, a voluntary appearance in a campaign photograph should be considered an “endorsement” of the candidate.  Candidate-judges are specifically permitted to endorse other candidates running in the same election (Supreme Court Rule 67B(1)(b)(iv)), and it is reasonable to conclude that candidate-judges will receive endorsements from others.  On the face of it, if a person can endorse a judge, then there is generally no impediment to that person also agreeing to appear in a campaign photograph.

An important exception to this rule is non-candidate judges.  Because it is reasonably construed as an endorsement of the candidate-judge, a non-candidate judge cannot choose to appear in a photograph to be used by a colleague for campaign purposes.  The Code only allows a judge who is a “candidate for public election” to endorse other candidates.  Supreme Court Rule 67B(1)(b)(iv).   Consequently, non-candidate judges should not voluntarily appear in photographs taken for the purpose of supporting another judge’s election.

Candidate-Judge Wearing a Robe in Campaign Photograph.  

The majority of authorities examining the question conclude that a candidate-judge may wear a robe in a photograph used for campaign purposes.  The North Dakota Supreme Court noted that an incumbent judge wearing a robe in a campaign photograph “was not untruthful or deceptive,” and that it was “common practice for a judge to wear a robe in campaign photographs … like a sheriff who wears a uniform and badge while campaigning for reelection.”  Saefke v. Vande Walle, 279 N.W.2d 415, 417 (ND 1979).  A number of other authorities agree.  See New Mexico Advisory Committee on the Code of Judicial Conduct, Opinion 92-3, August 1992; Indiana Commission on Judicial Qualifications Opinion No. 1-14; Judicial Conduct Reporter, Vol. 6, No. 1, Spring 1984, page 5; Ohio Board of Commissioners on Grievances and Discipline, Opinion No. 2003-8 (December 5, 2003).

Another line of authorities agrees with the foregoing, but with a catch:  if the judge is running for a judicial office higher than the one currently held, these authorities require that the photograph must be labeled to reflect the current office.  This is to prevent any misleading impression that the judge already holds the higher judicial office.  New Mexico Advisory Committee on the Code of Judicial Conduct, Opinion 92-3, August 1992; Washington Ethics Advisory Committee, Opinion 88-03 (March 11, 1988). 

The strictest view on this question is taken by the California Judges Association, which declared “subject to narrow exceptions such as moot court, the robe should only be worn while a judge is conducting official judicial duties.”  California Judges Association Opinion No. 36 (1987).  Still, it noted that there is no issue created by a judge wearing a robe in a “portrait photograph.”  Id.

Like the first group of authorities cited above, IJEC’s view has long been that it is permissible for an incumbent judge to be photographed in a robe for campaign purposes.  See IJEC Judicial Election/Campaign FAQ’s, Question 18, page 4 (September 30, 2019); cf. IJEC Opinion 94-3 (January 14, 1994) (judge may wear robe in civic parade, and same approach would apply to a “political activity”).  It is still IJEC’s opinion that it is permissible for a candidate-judge to wear a robe in campaign photographs, with the caveat that a judicial candidate is “responsible to maintain the dignity appropriate to the judicial office and act in a manner consistent with the integrity and independence of the judiciary.”  Id.

In the case of the inquiring judge, there is no ethical issue raised as a result of the candidate-judge wearing a robe in a photograph that will be used for campaign purposes.  

Candidate Judge Taking a Photograph in the Courtroom/Courthouse.  

Another issue with respect to judicial campaign photographs is whether it is appropriate to use court premises as the setting for such a photograph.  The first issue judges should consider is whether there is a legal impediment to such a use, as some jurisdictions prohibit the use of public buildings for campaign purposes.  While an analysis of the legal, rather than ethical, aspects of this consideration is beyond the scope of this opinion, judges are always obligated to follow the law.  Supreme Court Rule 62A.

Authorities in the field of judicial ethics have also addressed the ethical propriety of using the courtroom as a backdrop for a judicial campaign photograph.  The current version of the Model Code of Judicial Conduct – not applicable in Illinois -- specifically provides that a candidate-judge cannot “use court staff, facilities, or other court resources in a campaign for judicial office.  Rule 4.1(A)(10), Model Code of Judicial Conduct (emphasis added).  Authorities in a number of jurisdictions which contain similar prohibitions against the use of court “facilities” conclude that a photograph in the courtroom would violate this provision:

Rule 4.1(A)(10) provides that “judges and judicial candidates shall not use court staff, facilities, or other court resources in a campaign for judicial office or for any practical purpose.  The most obvious applications of this rule involve using court email addresses to send out campaign material, requesting that staff stuff envelopes or prepare campaign mailings on court time … or hosting campaign committee meetings in chambers.


1. Although the issue is not presented here, IJEC has reservations about the view that a photograph of a robed, sitting judge running for a higher judicial office must include some label stating that the judge currently serves in the lower office and not the higher one.  A robe indicates that the wearer holds a judicial office, not a particular judicial office.  Consequently, it is unclear why a photograph of a robed, sitting judge running for higher judicial office is necessarily misleading as to the judge’s status.  In this and other contexts, the caption to a photograph and the associated text could play an important role in creating or avoiding a misleading impression.


Indiana Commission on Judicial Qualifications, Advisory Opinion No. 1-14; see also Inquiry Concerning a Judge, Sean M.A. Hatfield, State of Kansas Hearing Panel for Formal Judicial Complaints, No. 2348 (July 16, 2021); Texas Ethics Commission, Ethics Advisory Opinion No. 561 (June 17, 2021) (no specific “facilities” rule); contra Montana Commissioner of Political Practices, Opinion Letter COPP-2015-AO-002, (March 24, 2015).

The Illinois Code of Judicial Conduct does not have a specific prohibition against the use of court “facilities” or “resources” for political purposes.  It does, however, prohibit a judge from “exploit[ing] the judge’s judicial position” (Supreme Court Rule 65C(1)), and it requires judges to conduct themselves “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Supreme Court Rule 62A).  These ethical requirements are sufficient to prohibit a judge from sending correspondence in the furtherance of personal interests using “judicial stationery, judicial computers and email addresses” or a “judicial secretary’s time.” In re Steigmann, 17-CC-1 (August 13, 2018).  Similar to Rule 62A, Rule 67A(3)(a) separately requires judicial candidates to “maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary.”  Supreme Court Rule 67A(3)(a).  In other words, even without a specific prohibition in Supreme Court Rule 67, the use of court equipment, office supplies, or administrative resources for a judge’s own political purposes would likely be prohibited.  

But would a campaign photograph of a candidate-judge taken in the courtroom implicate any of these concerns?  Some authorities feel that it would not.  The Supreme Court of North Dakota felt that it was “frivolous” to argue that a commercial filmed in a courtroom inflicted any “wear and tear of the bench.”  Saefke v. Vande Walle, 279 N.W.2d 415, 417 (N.D. 1979).  The Court’s resources are not being consumed.  

This gets to the heart of the issue:  what public resource is being used when a judge takes a photograph in a courtroom?  Certainly no one would argue that it would be improper for a judge to take a photograph outside of a courthouse, with the courthouse as backdrop; some authorities, though, view the question in terms of a judge taking advantage of access that is not available to others:

[T]here is no ethical barrier to the taking of pictures in locations to which the general public has access for the taking of photographs, such as in front of the courthouse, since in such instances there is no implication of involvement of the judiciary itself in a political campaign. Thus, during the applicable window period, any judicial candidate – whether a non-judge or a sitting judge – may use photos taken on the steps of the courthouse or other locations to which the general public has access for the taking of photographs. What judicial candidates must not do is create an appearance that they are improperly using “insider” access or status to take campaign photographs in restricted locations. That is, as a matter of judicial ethics, care must be taken to avoid using photographs that might convey the impression that the courthouse is being used for political purposes and, in particular, to facilitate the candidacy of a sitting judge.

New York Advisory Committee on Judicial Ethics, Opinion 05-101 (September 8, 2005; clarified and reissued June 20, 2019) (also noting that it would not be “ethically improper to allow photographs to be taken in a courthouse library or chambers, since both locations might be considered generic in nature”).  

Other authorities similarly focus on the exclusivity of the judge’s access to the area where the photograph was taken, and whether similar access is available to other potential (non-judge) judicial candidates.  Judicial Standards Commission of the State of North Carolina, Memo to North Carolina Judiciary, December 17, 2015 (finding that campaign photos can be taken in the courtroom when it is not in use, but noting that “court rooms must be available for such use by all judicial candidates”);  Washington Public Disclosure Commission, Interpretation No. 00-03, July 25, 2000, amended June 28, 2012 (“it is not a violation …. for judicial candidates to use the courtroom for depictions in campaign advertising literature so long as the facility is available to all persons on a non-discriminatory, equal access basis”); Rule 4.2(B)(8), Pennsylvania Code of Judicial Conduct (judges may “use court facilities for the purpose of taking photographs, videos, or other visuals for campaign purposes to the extent such facilities are available on an equal basis to other candidates for such office”).

Conditioning a candidate-judge’s right to take a photograph in the courtroom on equal access for non-judge judicial candidates may seem like a laudable goal, but IJEC can find no basis in the Code of Judicial Conduct to impose this as a requirement.  If there is a violation of some very general provision of the Code, it would appear to be de minimis.  In addition, access to courtrooms is often controlled by someone other than the candidate-judge, or even someone outside of the judiciary; it would be unwise to require candidate-judges to ensure access is available to others when they do not necessarily control that access.  Finally, as demonstrated by the proliferation of a variety of remote video backgrounds, the ability to create virtually any type of background for a photograph now exists; in other words, access to a physical courtroom may not even be necessary for a non-judge candidate to create a campaign photograph with a courtroom backdrop.  

Here, there is not even an issue of equal access, asthe photograph of the inquiring judge was taken in a public area of the courthouse.  IJEC concludes that there is nothing about the courthouse location of this particular photograph that would create any ethical issue for its use in campaign material.  

Campaign’s “Repurposed” Use of an Unstaged Photograph.

As previously noted, the foregoing discussion was undertaken on the assumption that the photograph at issue was “specifically taken for campaign purposes.”  However, there are many situations in which a photograph might be taken in a courthouse for reasons other than a political campaign.  This is  true of the photograph which is the subject of the inquiry; it was taken in connection with the unveiling of a historical photograph being placed on display at the courthouse.  Does the fact that the photograph was not originally taken for political purposes affect the ethical implications for its later use in a campaign?


 2. Non-judge judicial candidates must remember that it would be improper to be photographed behind the bench, wearing a robe, or otherwise giving the false impression that the candidate is already a judge.  See Supreme Court Rule 67A(3)(d)(ii) (a judicial candidate shall not “knowingly misrepresent the [candidate’s] present position”).


Although the New York Advisory Committee on Judicial Ethics disapproves of staged campaign photographs in the courtroom, it found that photographs in the same setting coming from a non-campaign related source are permissible:

[A]s the courtroom may not be used for political purposes, “care must be taken to avoid using photographs that might convey the impression that the courthouse is being used for political purposes and, in particular, to facilitate the candidacy of a sitting judge.” Opinion 05-101. In the present inquiry, however, it is the Committee’s view that the judge may include photographs of the judge on his/her campaign website that a photographer took in the courtroom during a public trial and that were thereafter published by a newspaper.

New York Advisory Committee on Judicial Ethics, Opinion 07-135, October 18, 2007.

The Texas Ethics Commission similarly commented that “if a journalist attends an open court proceeding, sits in the gallery as a member of the general public, and takes a photograph that is published in a newspaper or periodical, a judge may repurpose that photograph for his campaign.”  Texas Ethics Commission, Ethics Advisory Opinion No. 561 (June 17, 2021).

This seems to IJEC like a sensible way to look at a photograph “repurposed” for campaign use.  Photographs are permitted in courtrooms under a variety of circumstances, including approved media coverage and for ceremonial proceedings.  Illinois Supreme Court Rule 45.  If a judge is able to repurpose a courtroom photograph (with appropriate permission from the owner of the photograph), doing so would not inherently reflect the judge’s abuse of the right of access to the courtroom.  To the contrary:  an attorney running for judge might also repurpose for campaign purposes a media or ceremonial photograph taken of the attorney in court.

Here, the photograph of the inquiring judge was not only taken in a public place, but was originally created for a purpose unrelated to the judge’s campaign.  This is another reason why its use does not violate the rules of ethics.

Other People Appearing in a Non-Staged Photograph.

When a campaign photograph is specifically arranged, the participants presumably know what they are involving themselves in.  Conversely, an organic, spontaneous photograph might be taken at events that include multiple people, and some included in the photograph may have had no idea that a photograph was being taken or that it would subsequently be repurposed for use in a campaign.  Does such a photograph imply that others pictured in the photograph “endorsed” the judge’s campaign?

According to the Florida Judicial Ethics Advisory Committee, the answer is clearly “yes.”  The Committee considered the question of a judge who received an award from the Florida Supreme Court; a photograph was taken at the award ceremony showing the judge giving his acceptance speech, and several Supreme Court justices are visible as well.  The judge asked whether he could use that photograph in his campaign material; the Committee answered in the negative:

In this context, it is apparently of no moment that the photograph depicts an historical event and was not staged for campaign purposes…. Here the justices depicted in the photograph do not, presumably, intend any endorsement.  But this is an additional reason why the photograph should not be used.  The inquiring judge should not represent, or even imply, that the justices support the inquiring judge’s candidacy over any other, particularly if that is not the case.

Florida Judicial Ethics Advisory Committee, Opinion 2010-18 (June 16, 2010).  The same committee has gone so far to say that a judge could not use a “a photograph of the judge taken at the judge’s judicial investiture” in his campaign literature because it showed him being sworn in by another judge – now deceased.  The Committee felt that “whether the [other] judge in the photograph is alive or deceased appears to be a distinction without a difference,” because “use of the photograph could ‘imply’ to the voting public that the judge pictured with the candidate judge previously endorsed or would have endorsed the candidate judge.”  Florida Judicial Ethics Advisory Committee, Opinion 2014-10 (May 20, 2012).

IJEC believes that this analysis is based on understandable concerns, but it goes too far.  It is illogical to rigidly equate the inclusion of any other person in a photograph as an implication of endorsement.  The point is perhaps best made by considering the example of the Supreme Court award discussed above.  Put aside the question of the photograph from the award ceremony; would anyone suggest that the candidate-judge could not mention his receipt of the Supreme Court award in his campaign literature?  Would anyone jump to the conclusion that mention of the award would “imply” that the Supreme Court justices who made the award “support the inquiring judge’s candidacy?”  IJEC believes that the answers to these questions are clearly “no,” and that a candidate-judge could definitely tout the receipt of a Supreme Court award in campaign literature without improperly implying that the justices support the judge’s campaign.

There seems to be no cogent reason why a photograph of the same event – depicting, in essence, the same information – should be treated differently.  If the judge received the award, it is fair game to include that fact in campaign material; it doesn’t matter whether the information is conveyed verbally or in a photograph, because the information is true and gives rise to no other reasonable implication.

It is difficult to distill this analysis when it comes to photographs, but it is reasonable to consider the context of the photograph.  To the extent the photograph is about an event, the more likely it is to be permissible; the more it is about the people, the more likely it is to present issues if those people have not or cannot endorse the candidate-judge.  For example, two judges – one a candidate, the other not -- might be photographed at the dais at a bar function at which they are both speakers.  Participating in the same bar program is unlikely to give rise to any inference that the non-candidate judge supports the campaign of the other, so a photograph of them doing so is also unlikely to create that inference.  

However, a photograph taken of the same two judges chatting during a break at the same function conveys little information beyond the identity of persons, and may therefore give rise to different inferences.  Furthermore, beyond the ‘four corners’ of the photograph itself, the caption and other text which accompany it campaign publications might change the inferences a reasonable person might draw.  Finally, the very concept of the “four corners” of a photograph is fluid; how a photograph is cropped might greatly affect the impression that it gives.

Applying these concepts to the photograph at issue in this inquiry, the inquiring judge was one of four judges photographed at a courthouse ceremony to celebrate the unveiling of a historic portrait at the courthouse.  The picture shows judges not just standing together, but gathered for a specific purpose.  The fact that the judges gathered for this event does not imply that they supported the candidate-judge’s campaign.  Similarly, the photograph that captured the event also does not give rise to such an implication.  IJEC believes that it is permissible for the judge to use the photograph for campaign purposes. 

CONCLUSION:   The inquiring judge may use the photograph for campaign purposes because:

  1. A judge’s photograph may appear in media advertisements supporting the judge’s candidacy;

  2. An incumbent judge may appear in a robe in a campaign photograph;

  3. The judge may utilize a photograph which was not created for campaign purposes and cannot be reasonably interpreted to contain any misrepresentations regarding the judge; and

  4. The photograph depicts multiple judges at a public event but does not in itself suggest or imply any endorsement on the part of the other judges.