Political Party Caucuses and Primaries/Inaugural Events

by Cynthia Gray, Director of the American Judicature Society's Center for Judicial Ethics.
Reprint of Judicial Conduct Reporter Spring 2008 30 NO. 1 JCR 3

Several judicial ethics committees have advised that a judge may not participate in a political party caucus but may vote in a political party primary.

Noting that the state code of judicial conduct prohibits a judge from attending a political gathering, the Nebraska advisory committee concluded that “the circumstances and procedures of a political party caucus give rise to the conclusion that such a caucus is a ‘political gathering”‘because “it is a public meeting used to elect delegates who will vote for the selection of the party’s presidential nominee.” Further noting that caucus participants publicly endorse a candidate for public office by “simply standing or congregating” with others favoring that candidate, the committee stated that participating in a caucus would constitute a public endorsement of a candidate in violation of the code. Nebraska Advisory Opinion 08-1. Accord Colorado Advisory Opinion 2008-2; Utah Formal Advisory Opinion 02-1; Washington Advisory Opinion 08-1.

Acknowledging that the code expressly allows a judge “to participate in the political process as a voter,” the Nebraska committee concluded “this comment addresses voting in an election where ballot secrecy is preserved and is not applicable to a public caucus process.” One member of the committee dissented, arguing that, if a state employs caucuses rather than secret ballot voting, “it should not be counted as a prohibited endorsement, because there is no other way to vote.”

Party primary

In contrast, a judge may participate in a primary election. The Utah judicial ethics committee distinguished primaries from caucuses by noting that participation in a primary “would be witnessed by relatively few and would have no impact on the perceived impartiality of the judiciary.”

Registering with a political party is largely a private act, known only to the judge and the individual or individuals accepting the judge’s application. Although the information then becomes public, such information is rarely sought out or disclosed.

The election process is also relatively private. A judge appearing at a polling place will be seen by few people and the perception of the appearance is most likely to be recognition of the fact that the judge is participating in an election process, and not a perception that the judge is tied to any political ideology. Utah Formal Advisory Opinion 02-1. The opinion emphasized that the “public recognizes the rights of judges as citizens and understands that a judge’s participation in that process does not have significant meaning related to the integrity and partiality of the judiciary,” adding “the political proclivities of a judge are not so closely watched by the public that reasonable conclusions could be drawn from a judge’s participation in the primary election process.” The Utah committee also noted the potential for disenfranchisement if judges were prohibited from participating in primary elections.

Reaching the same conclusion, the Colorado advisory committee emphasized that primary elections are designed to guarantee the anonymity of a voter’s choice of party and preferred candidates and that participation does not give rise to a public endorsement of the political party. Colorado Advisory Opinion 2008-2. The opinion noted that primary elections are run by state election officials and all expenses are paid by the state or county. Accord Washington Advisory Opinion 08-1.

After the Virginia advisory committee issued an opinion stating that judges could not vote in primary elections (Virginia Advisory Opinion 99-6), the state supreme court adopted commentary to the code of judicial conduct to specifically allow that conduct. The comments explain:

A judge may vote in a primary election conducted by the State Board of Elections that is open to all registered voters qualified to vote .... Voting in such a primary election does not constitute attending a “political gathering” ... or constitute engaging “in any other political activity” .... The act of a judge voting in a primary election is the discharge of an honorable civic duty and an obligation of responsible citizenship.
The statutory requirements for voting in a primary election distinguish voting in a primary election by a judge from a “political gathering” ... because there is no registration by political affiliation, no loyalty or political party oath required to vote, and no pledge of support for any person or political group.

Comment 6 to Rule 4.1 of the 2007 American Bar Association Model Code of Judicial Conduct provides:

Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited....

Inaugural events

A judge may attend the inauguration of elected public officials. The South Carolina advisory committee explained that swearing-in ceremonies are “not political activities, but rather governmental activities in which every citizen regardless of their official position should be allowed to participate.” By attending the inauguration ceremonies ... a judge simply participates as a spectator to a time honored tradition of government that symbolizes and celebrates the orderly and legal transition of elected officials. Also, by attending as a spectator the judge is merely showing respect, in a dignified manner, for a branch of government other than his own, which thus avoids harming the integrity and impartiality of the judiciary and avoids any appearance of impropriety. South Carolina Advisory Opinion 2-1995. Accord Colorado Advisory Opinion 2006- 10 (gubernatorial inauguration); Florida Advisory Opinion 92-41 (inauguration of the President of the United States); New York Advisory Opinion 97-145 (municipally funded induction ceremony).

A judge may attend an inaugural ball or similar event as long as any fee charged covers only the costs, but a judge may not attend if the event is a fund-raiser for a political campaign or party. For example, the Colorado advisory committee opined that a judge may attend a dinner, concert, and whistle-stop tour following the gubernatorial inauguration where the events are open to the public at large and nominal fees cover the costs only and will not go to political party. Colorado Advisory Opinion 2006-10. Accord Florida Advisory Opinion 92-41 (judge may attend inaugural ball provided no funds are paid to a political organization and attendance is not limited to members of one party); New York Advisory Opinion 97-145 (judge may not attend a ball following the inauguration where the $250 ticket price will be used to pay debts incurred by the candidate during the campaign); New York Advisory Opinion 98-12 (judge may attend an inaugural ball for a mayor where any proceeds will go to a charitable organization and the event is not a political gathering); South Carolina Advisory Opinion 2-1995 (judge may attend inaugural ball if any fee paid to attend covers only the cost and will not be retained by any political party). Cf., Arkansas Advisory Opinion 92-5 (judges who hold offices filled by election may purchase tickets to and attend an inaugural ball for the President regardless whether the ball is considered a political gathering and regardless whether the admission charge is used to defray the costs of the event, is given to a charitable organization, or is used to support Democratic Party activities). The Colorado advisory committee cautioned that, even if a judge may attend an inaugural event for the governor, the judge may not engage in fundraising to pay for attendance, should not use his or her attendance as an opportunity to seek elevation to a higher bench, should attend as any member of the public without being seated on the dais or in any position that suggests a particular allegiance with the governor, and should be identified to the extent possible by name without reference to the judicial title. Colorado Advisory Opinion 2006-10.