Opinion 13-01

January 10, 2013

TOPIC: Participation of judge's spouse in fundraising for a school.

DIGEST: A judge is not subject to the Illinois Code of Judicial conduct for activities of the judge's spouse that are neither conducted at the behest of the judge nor in a manner that trades on the judge's position. The name of a judge's spouse may appear on a school fundraising flyer, and the spouse maybe designated to receive reservations and payments for the event, where that occurs at the initiative of the spouse and without mentioning the judge.

REFERENCES: Canon 2 of the Illinois Code of Judicial Conduct, Supreme Court Rule 62; Canon 5B(2) of the Illinois Code of Judicial Conduct, Supreme Court Rule 65B(2); ABA Model Code of Judicial Conduct, Rule 1.3 (2007), and accompanying Commentary; Illinois Judical Ethics Committee Opinion 06-02; G. Geyh & W. William Hodes, Reporters' Notes to the Model Code of Judicial Conduct (2009)

FACTS

A judge's spouse is listed on a private school fundraising flyer as a board member and contact person for reservations and payment.  The spouse and the judge share the same last name.

QUESTION PRESENTED

Does the Activity violate the judge's obligation under Illinois Code of Judicial Conduct?

OPINION

In Illinois Judicial Ethics Committee Opinion 06-02, the Committee addressed the activities of a judge's spouse in an election campaign on behalf of a candidate other than the judge.  The Committee concluded that:

" 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 the judge and driven by the spouse; and (4) displaying a campaign sign in the yard of the home jointly owned by the spouse and the judge."

Opinion 06-02 recognizes that a judge's spouse is a separate person whose independent conduct -- i.e, conduct that the spouse undertakes on his or her own initiative rahter than at the behest of the judge-- is not governed by the Illinois Code of Judicial Conduct. This is true regardless whether the judge and his or her spouse share the same surname.

The analysis would be different if the judge were the person engaging in the activity in question. See Supreme Court Rule 65B(2) (prohibiting a judge from "permit[ting]his or her name to be used in any manner to solicit funds or other assistance" for "an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members"). But where, as here, it is the judge's spouse who undertakes the fundraising activity in a manner that does not seek to capitalize on the judge's position, the concern underlying the restriction on a judge's participation in fundraisin activities is not present. Whether in the political realm, as discussed in Opinion 06-02, or in the fundraising area raised by this question, the underlying concern is expressed in Canon 2B of the Illinois Code of Judicial Conduct, whihc provides that a "judge should not lend the prestige of the judicial office to advance the private interests of others..."  Supreme Court Rule 62B.

This provision differs somewhat from the corresponding provision in the 2007 ABA Model Code of Judicial Conduct. Rule 1.3 of the 2007 Model Code. entitled "Avoiding Abuse of the Prestige of Judicial Office," states:

"A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." (Emphasis added.)

The phrase "or allow others to do so" was a new addition to the 2007 edition of the Model Code. According to the Reporters, the the phrase was added to extend the prohibition so that judges woould not be permitted "to look the other way if friends or relatives...trade on the judge's position to benefit themselves or others." G. Geyn &W. William Hodes, Reporters' Notes to the Model Code of Judicial Conduct 23 (2009)

Although the phrase "or allow others to do so" does not appear in the Illinois Code, the Committee believes the Illinois Code may implicitly extend to a judge who turns a blind eye to the actions of friends and relatives trading on the judge's position. However, it is unnecessary to decide that question because there is no indication that anything of that nature is involved in the inquiry. In particular, the scholl's fundraising flyer merely identifies the spouse by name, rahter than as a judge's spouse.

CONCLUSION

A judge's spouse is not subject to the Illinois Code of Judicial Conduct. Nor is a judge subject to discipline for the activities of his or her spuse that were neither expressly or impliedly undertaken at the behest of the judge, nor conducted in a manner that traded on the judge's position. The Code does not apply to such indepedent activities of a judge's spouse regardless whether the judge and his or her spouse have the same last name. Thus, there is no misuse of the judicial office for personal advantage whe a judge's spouse, on his or her own volitionand without any mention of the judge, is identified on a school's fundraising flyer as a board member and as the contact person to whom donations and reservations should be sent.