Opinion No. 03-06
November 7, 2003

TOPIC: Activity of judge’s spouse on behalf of candidate for non-judicial office.

DIGEST: Code of Judicial Conduct does not prohibit judge’s spouse from circulating a nominating petition for candidate for non-judicial office. Judge may sign candidate’s nominating petition.

REFERENCES: Canon 2B of the Illinois Code of Judicial Conduct, Supreme Court Rule 62B; Canon 7A(1)(b) of the Illinois Code of Judicial Conduct, Supreme Court Rule 67A(1)(b); Canon 7A(3)(b) of the Illinois Code of Judicial Conduct, Supreme Court Rule 67A(3)(b); Canon 7B(1)(b)(iv) of the Illinois Code of Judicial Conduct, Supreme Court Rule 67B(1)(b)(iv); Committee Commentary to Canon 7 of the Illinois Code of Judicial Conduct, Supreme Court Rule 67; Illinois Judicial Ethics Committee Opinion No. 01-09; 10 ILCS 5/7-10.

FACTS

A judge’s spouse wants to circulate a nominating petition for a candidate in a non-judicial primary election. The judge will be on the retention ballot in the upcoming general election.

QUESTIONS PRESENTED

1. Can a judge’s spouse circulate a nominating petition for a candidate in a non-judicial election?

2. Can the judge sign the petition?

ANALYSIS

I

The restrictions on a judge’s political activities contained in SCR 67 do not generally apply to a judge’s spouse or other family members. SCR 67A(3)(b) prohibits persons subject to a judicial “candidate’s direction and control from doing on the candidate’s behalf what the candidate is prohibited from doing under the provisions of this Canon….” (Emphasis added.) Although a spouse is presumably under a judge’s “direction and control” for purposes of this rule, the spouse in this inquiry was not acting on the judge’s behalf. Rather, the spouse wishes to circulate a nominating petition because the spouse supports the candidate in question. There is no prohibition against the spouse doing so. As explained in the Committee Commentary to SCR 67:

“Although a judicial candidate must encourage members of 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.” (Emphasis added.)

See also IJEC Opinion No. 01-09 (judge’s spouse may host reception for political candidate).

II

The ability of the judge to sign the nominating petition raises two issues: (1) whether the judge is authorized by SCR 67B(1)(b)(iv) to endorse the candidate in question; and (2) if not authorized by SCR 67B(1)(b)(iv), whether signing a nominating petition constitutes “publicly endors[ing]” a candidate for public office in violation of SCR 67A(1)(b).

SCR 67B(1)(b)(iv) permits a candidate for public election to “publicly endorse … other candidates in a public election in which the judge or judicial candidate is running.” This provision is inapplicable, however, because the judge is a candidate in the upcoming general election, while the nominating petition relates to someone whom, at this point, is merely a prospective candidate for the primary election.

Merely signing a nominating petition does not constitute the “public” endorsement of a candidate within the meaning of SCR 67A(1)(b). Signing a petition does not single the judge out any more than other petition signatories. To avoid any risk that signing the petition could be construed to entail the lending of the prestige of judicial office in violation of SCR 62B, it is advisable for the judge to refrain from identifying himself or herself as a judge on the petition. No such designation is required on nominating petitions by 10 ILCS 5/7-10.

CONCLUSION

A judge’s spouse may circulate, on his or her own behalf, a nominating petition for a candidate for non-judicial office. A judge may sign such a nominating petition regardless of whether the judge is a candidate in the same election.