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Opinion 191

An opinion is requested concerning the continuing viability of Opinion No. 141 in light of the requirements of Georgia’s campaign disclosure laws as set forth in the Ethics in Government Act, O.C.G.A. §§ 21-5-1, et seq. In substance, this act requires that all campaign contributions in excess of $101.00 be reported to specified state election officials and permanently maintained for public inspection in the office of the Secretary of State.

These provisions are not addressed in Opinion No. 141 (October 25, 1989) wherein the Commission quoted pertinent provisions from Canon [4] of the [] Code of Judicial Conduct and concluded:

From this it follows that a Judge is not prohibited from making a private personal financial contribution to a candidate for political office in a partisan race so long as it is done in such a way as not to constitute, or appear to be, a public endorsement of the candidate. However, a judge can make no contribution, either in cash or in kind, which might give the appearance of a public endorsement in violation of the prohibition of the Canon.

The issue thus presented may be succinctly stated as follows:

Does a private, personal political contribution by a judge of a sum which is statutorily required to be publicly disclosed constitute a “public endorsement of a candidate” prohibited by Rule 4.1(A)(2)?

Although the Commentary to this Canon specifically provides that “a candidate does not publicly endorse another candidate for public office by having his or her name on the same ticket,” the phrase “public endorsement” is nowhere defined in the Code of Judicial Conduct. Nevertheless, it is the opinion of the Commission that the mere listing of a judge’s contribution on a campaign disclosure report, which is statutorily required to be maintained for public inspection, does not, in and of itself, constitute a prohibited “public endorsement,” however that term might be defined.

Individuals, including judges, make political contributions for varied reasons. It is not uncommon for an individual to contribute to several different candidates seeking the same office and often in identical amounts. Thus, the mere making of a campaign contribution, standing alone, may or may not signify an endorsement of a particular candidate, and unless the individual contributor does some additional act which publicly demonstrates his or her support for a candidate to a whom a contribution might have been made, it cannot be said that the contributor has “publicly endorsed” a particular candidate.

Moreover, in promulgating the 1984 amendments to the Code of Judicial Conduct, the Supreme Court substantially enlarged permissible political activities for judges and specifically eliminated the prior prohibition against judges making a contribution to a political candidate. The fact that subsequent legislation now requires contributions in excess of a certain amount to be maintained for public inspection does not alter the fact that such contributions have been specifically authorized by the Supreme Court of this State since 1984. Neither does such statutorily mandated disclosure rise to the level of personal public involvement obviously contemplated by the original drafters of the Code in prohibiting “public endorsements” by judges. [Illustrative examples of such personal public involvement are delineated in questions (2) – (8) of Opinion No. 147 (July 20, 1990).]

[Pertinent Code of Judicial Conduct provisions: Rule 4.1. Cross reference to other relevant opinions for review: #141, #147, #203.]

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