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Opinion 36

The Judicial Qualifications Commission has been requested to render an opinion as to whether a judge may join the Georgia Federation of Democratic Women, which is an affiliate of the Democratic Party of Georgia.

It is our opinion that the inquiry should be answered in the affirmative subject to certain qualifications.

The applicable Canon is Canon 4. Rule 4.1 deals with “Political Conduct in General,” and Rule 4.2 has to do with “Campaign Conduct.”

Rule 4.1(A)(1), (2), and (3) spell out certain prohibited acts. In paragraph (1) it is provided that a judge should not act as a leader or hold any office in a political organization. In paragraph (2) it is stated that a judge shall not make speeches for a political organization or publicly endorse a candidate for public office. Finally, in paragraph (3) it is provided that a judge shall not solicit funds for or pay an assessment or make a contribution to a political organization, or purchase tickets for political party dinners or other functions, except as authorized in Rule 4.1(B).

It thus appears that the prohibitions set forth in section Rule 4.1(A)(1) and (2) are strictly prohibited, but that the prohibitions set forth in Rule 4.1(A)(3) are qualified prohibitions and may be permissible under Rule 4.1(B). The latter section permits a judge to “attend political gatherings and speak to such gatherings on their own behalf when they are candidates for election or re-election.”

It is to be noted that Rule 4.1(B) makes no exception to the prohibition of Rule 4.1(A)(3) concerning the solicitation of funds for a political organization so that such prohibitions should be considered as being generally impermissible acts and as falling in the same category as those acts listed in Rule 4.1(A)(1) and (2).

While it is also true that 7(A)(1)(c) proscribes a judge from paying “an assessment” or “making a contribution to a political organization,” and 7(A)(2) speaks only of contributing to a political party or organization, we are of the opinion that no distinction should be made between an “assessment” and a “contribution.” Both suggest the payment of funds to a political organization and there appears no logical reason why, if a judge may contribute to a political organization, he may not do so in the form of an assessment.

It is also true that while Rule 4.1(A)(3) speaks of his “purchase tickets for political party dinners or other functions,” and Rule 4.1(B) does not address itself directly to such gatherings; nevertheless, it appears to us that to the extent of the applicability of Rule 4.1(B) to the judges of this state, the permissive acts set out in that subsection must necessarily permit the purchasing of tickets for political party dinners or other functions. This is a means whereby a judge in an elective office may identify himself with a political party, attend its political gatherings and make contributions to the party.

This leads to an inquiry as to what is the controlling factor that makes certain of the prohibitions stated in Rule 4.1(A)(3) nevertheless permissible under Rule 4.1(B). That answer appears to relate to and depend upon a proper construction of the provisions in Rule 4.1(B) permitting the acts therein listed “as authorized in Rule 4.1(B).”

On the subject of the meaning of “authorized,” the Reporter’s Notes to the Canons state that “The source for the permission, however, is not to be found in the Code; the judge or candidate must be able to establish that his conduct is permitted by the law of his jurisdiction. The applicable law may be statutory or common law; usually it will be found in the general statutes establishing standards of conduct for elective public officer.”

The difficulty here encountered is whether the clause “as authorized in Rule 4.1(B)” is to be construed as meaning that the specific acts set forth in Rule 4.1(B) must be specifically authorized by the law of this state or whether these acts are to be considered as permitted under the law of this state if there is no law which prohibits them.

In this state, with few exceptions, judges are elected by the people and in the process they may attain re-election to a judicial office through first an election held by a political party as a result of which the judge, if the successful candidate, becomes the party’s nominee to be placed on the general election ballot. It would therefore follow that our laws expressly recognize that a judge in seeking re-election may do so through membership in a political organization, which to us necessarily implies that he would be permitted to identify himself as a member of that party, contribute to the financial needs of the party and solicit the support of the party and its members on his own behalf when he is a candidate for re-election. This conclusion would undoubtedly not be true where judges all attain re-election through non-partisan elections unless the described conduct was specifically authorized by law.

The provisions of Canon 4 are also applicable to “[a] judge or a judicial candidate for public election to judicial office.” It might be said that since the prohibited conduct does not apply to a non-judge before he becomes a “candidate” for judicial office, that, likewise, the prohibition should not apply to a judge holding office until he becomes a “candidate” for re-election or election to some other judicial office. However, we cannot accept this as a reasonable interpretation of the Canon. A person who attains a judicial office becomes a judge and he does not lose that character simply because he is not at any given time a “candidate” for re-election or a “candidate” for election to some other judicial post. Once a judge, he remains a judge at all times while holding office. On the other hand, the Canon of necessity cannot apply to a non-judge seeking a judicial office until he becomes a “candidate.”

It is not necessary that we comment here on when a person becomes a “candidate” for judicial office, but we consider it desirable to do so for guidance of those seeking election to a judicial office.

The foregoing conclusion concerning the application of the Canon to a judge, as distinguished from one seeking to become a judge would appear to give to a non-judge who is seeking election to a judicial post an advantage over a judge holding the office and to also give an advantage to a non-judge seeking a judicial post in opposition to a judge who seeks election to another judicial post (assuming in the process he retains the judgeship that he holds) in that at all times the judge is subject to the prohibitions of the Canon without respect to whether it might be said he is a “candidate” for re-election while the non-judge does not become subject to the Canon’s proscriptions until he becomes a “candidate.” The degree of advantage that the non-judge candidate has over the judge depends upon when it is to be considered that a non-judge becomes a “candidate.” If the word “candidate” means only a person who has officially qualified in an election, then he would have a decided advantage since the judge because of his office alone is subject to the prohibitions, while the non-judge “candidate” would not be subject to the prohibitions until he qualifies as a “candidate.” It is not unusual, but is in fact customary, that a substantial amount of important campaigning takes place for a considerable period of time before a person running for public office actually officially qualifies in the election. It would therefore seem that the word “candidate” insofar as it applies to a non-judge seeking election to an office, should be given a practical and not a technical meaning so that a non-judge should be considered a “candidate” at the point that the decision is made to seek election and when, pursuant to that decision, such non-judge who seeks to be elected as a judge begins, in any degree, to seek voter support whether done publicly or privately in furtherance of his intended qualification for election to the office. Thus, a non-judge candidate for a judicial post who at any time prior to an election acts to any degree contrary to the prohibition of the Canon should be able to establish that he was then in no sense, by acts or conduct, a “candidate” for the office within the meaning of that term as stated above.

Hence, we conclude that neither a judge holding office nor a non-judge candidate for a judicial office may act as a leader or hold any office in a political organization; make speeches for a political organization or candidate; publicly endorse a candidate for public office; solicit funds for a political organization, or solicit funds for or make a contribution to a candidate; but that a judge or a non-judge candidate for judicial office may attend political gatherings which are not held primarily for the benefit of specific candidates for office or which are not held as fund raising events for specific candidates or holders of elective offices; speak to such gatherings on his own behalf when he is a candidate for election or re-election, identify himself as a member of a political party and contribute to a political party or organization.

Of course, in doing those things that are permitted, a judge or non-judge candidate for judicial office is subject to the other requirements and prohibitions as set forth in Rule 3.1, Rule 3.7(A),  and Rule 4.2(A)(1), (2) of the Code of Judicial Conduct.

[Pertinent Code of Judicial Conduct provisions: Rules 3.7(A)(1), 4.1(A), 4.1(B), 4.2(A). Cross reference to other relevant opinions for review: #l, #23, #58, #81, #83, #108, #118, #124, #147, #165.]

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