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Judicial Watchdog Opinion cautions Judges on perils of spousal politics

JQC Hearing Panel from left: Cobb County Police Chief Michael Register, Atlanta attorney Jamala McFadden and Fulton Superior Court Chief Judge Robert McBurney.

The state Judicial Qualifications Commission has issued a formal advisory opinion warning judges that while the Code of Judicial Conduct cannot bar their spouses from hosting political events and fundraisers, if spouses decline to opt for another venue, judges can’t be affiliated with the event or even show up.
By R. Robin McDonald, The Daily Report

Georgia’s judicial ethics watchdog agency has issued a formal advisory opinion warning judges and judicial candidates they face ethical peril if a spouse hosts a political fundraiser.
The Judicial Qualifications Commission issued the advisory opinion based on what it described as “a recurring concern” about whether a judge’s spouse or partner may use the couple’s shared residence for political events or fundraisers.
The commission’s three-member hearing panel concluded that, while such a circumstance is not prohibited by the state Code of Judicial Conduct, it “presents a serious and substantial risk of creating the appearance of improper political engagement by the judge.”
Given that risk, the panel set out a series of directives for the state’s judges “to minimize the possibility that the public will perceive the judge as sponsoring or supporting the political or fundraising event.”
The JQC sought public comments on the opinion in June. It released the final formal opinion earlier this month. The JQC’s hearing panel, which issued the formal opinion, include Fulton County Superior Court Chief Judge Robert McBurney, employment lawyer Jamala McFadden of Atlanta’s McFadden Davis and Cobb County Police Chief Michael Register.
JQC Executive Director Ben Easterlin said the opinion was prompted by an inquiry from a judge about what is permissible under the state judicial ethics code. “I think it’s probably a situation where somebody’s wife was asked to do it [hold a fundraiser],” he said. “And so, before she did, the judge wanted to be careful and requested that opinion.”
The opinion addresses Rule 4.1 of the judicial ethics code, which bars judges from leading political organizations, making speeches for political organizations or candidates, soliciting funds or making contributions to political organizations.
“A judge may not campaign for or otherwise publicly endorse a political candidate in any way. Thus, it is plain that a judge could not host a political or fundraising event (other than her own campaign event) in her home,” the opinion says.
But those restrictions do not apply to a judge’s spouse in Georgia, even though similar judicial watchdog agencies in Texas, Kansas, and Delaware prohibit any political or fundraising events in a judge’s marital home. Georgia’s Code of Judicial Conduct “does not—and indeed cannot—impose such restrictions on a non-judge’s First Amendment rights,” the opinion adds.
“However, a judge’s spouse’s exercise of those freedoms can have consequences for the judge,” the opinion warns. “If the spouse decides to host a political or fundraising event in the marital home, the judge must guard against the event being directly associated with the judge (other than by the unavoidable fact that the event occurred in her residence.”)
The JQC hearing panel acknowledged there is “no perfect solution,” and suggested that, ideally, that a judge’s spouse or partner would opt, instead, to find another venue to host a political event.
Barring that, “The judge should take all reasonable steps to reduce the likelihood that a member of the public might fairly misconstrue the spouse’s event as also being the judge’s event,” the opinion says.
To guard against that, the JQC set out steps a judge must take in the event that a spouse or partner chooses to host a political event at their residence:
● The judge should not be identified in invitations, publicity or social media associated with the event;
● The judge’s position should not be associated with the event;
● The judge may not invite anyone or encourage anyone to attend or support the candidate or cause touted by the judge’s spouse;
● The judge may not assist in any preparations for the event; and
● The judge also must not attend the event.