Ethics Issues for Judicial Families
2002

by Rick L. Brunner, Esq.
Vice-chair, Ohio Judicial Family Network Steering Committee
Chair, Ohio Judicial Family Network Ethics Subcommitttee

One of the most useful aspects of the Ohio Judicial Family Network is the opportunity to meet other judicial spouses and learn from our shared experiences, joys and missteps. This is useful in many aspects of judicial family life but probably not any more than in the area of ethics for judicial spouses and family members. We have discussed ways of handling ethical conflicts and have had the sympathetic ear of others "who have been there." On March 6, 2002, spouses of recently elected and appointed judges and their mentors met with ethics experts Jonathan Marshall, secretary to the Board of Commissioners on Grievance and Discipline, and David Freel, executive director of the Ohio Ethics Commission.

What follows are some thoughts following the March program, "How Not To Put Your Foot In Your Mouth," about how to make the rules of judicial ethics manageable and how to apply them to common events.

When our spouse or family member was elected or appointed to his or her judicial office, each of us had our own corner of the world turned upside down. Some aspects of this change are as unique as our individual families, but others are very much common experiences. One change is new to almost all of us: the Code of Judicial Conduct will begin to regulate our lives.

Although we as spouses and family members are not bound by the Code and are not subject to discipline or sanctions, our actions and our involvement in the community are very much regulated by the fact that we are married to or live with a judge. The Code of Judicial Conduct restricts judges in their actions both on and off the bench, and since the actions we take as family members or spouses of a judge can have a direct impact upon the judge, we must be aware of the consequences. This is why we must know the requirements of the code.*

Most of us cannot memorize the Code of Judicial Conduct or carry it around with us to consult it in our everyday activities. In my own dealings, I try to keep in mind three simple paraphrases. These three "rules of thumb" are:

1. The judge needs to be impartial at all times concerning any matter that may come before the court.
2. The judge may not use the judicial office to gain benefit for the judge or the judge's family.
3. The judge cannot use the court for any personal promotion or for any purpose other than what the judge is charged by law to do with the position.

Although it is wise for all of us to attempt to familiarize ourselves with the Code of Judicial Conduct, remembering these three simple rules can help navigate most of the tricky situations. Here are just a few examples of how we may apply these three rules in circumstances we are likely to encounter as the spouse or family member of a judge.

• Civic and charitable activities. The requirement for a judge to maintain impartiality and not to appear to be using the judge's office for non-judicial purposes prohibits a judge from personally soliciting funds and from participating in certain fundraising activities for churches, schools and civic organizations. Consequently, as family members we must help the judge avoid the appearance of having broken one of the prohibitions against soliciting funds and participating in inappropriate fund-raising activities. For example, it would be unethical to appear at a concession stand for the local band boosters. On the other hand, a judge and his or her family members may donate money, attend fundraising events and assist in the fundraising activities behind the scenes. For example, the more behind-the-scenes "placing of pepperoni" on pizzas during the local school's pizza sale would not be a violation.

  This can become tricky. If you contribute money to a charitable cause with a check that has "judge" printed on it, that could result in the title "judge" being listed on a statement of contributors, making it appear as though the judge supports the ideas of the group or uses his or her office to promote the group. The check may have been signed and sent by the judge's spouse, but the fact that the printed name and title of the judge appears on it may cause the organization to publicize the judge's name as a high-profile contributor. In fact, many times the difficulty will be to keep others from using the judge's name without permission. To avoid this problem, it is best to have a checking account that does not have "judge" on the check or for the spouse to have an individual checking account for such purposes.

  If this starts to seem cumbersome, remember the flip side: sometimes the Code's limitations can be empowering because we can extract ourselves from participating in certain events by stating that the Code of Judicial Conduct prohibits us.

• Financial activities. Judges are permitted to have investments and to hold investments in family businesses. However, the judge must avoid conflicts of interest or involvement in matters coming before the court that would in some way benefit the judge's family members' business interests or investments. Additionally, the judge has to avoid the appearance that the business interest of the judge or household member would in some way affect the judge's rulings in a matter pending before the court. This means that the judge must at all times know where family members' monies are invested and what business interests they have. As judicial spouses we must share this information with the judge, so he or she may be aware of and able to evaluate potential conflicts of interest.
• Giving legal advice and acting as an attorney for family members. A judge may represent himself or herself in legal proceedings in which the judge is a party. The difficult issue is the extent to which the judge may give legal advice. A judge may give uncompensated legal advice or review legal documents for family members. However, while a judge may appear in court with family members as a spectator or as a family member, he or she cannot appear as an attorney and counselor. This is often a change for many families who have grown used to having an attorney in the family.

  A fairly common problem in this area involves the judge as a parent of a juvenile appearing on a traffic matter. In recent years, parents of juvenile drivers have been required to appear with the juvenile in court when the juvenile receives a moving violation. Clearly, the judge may not appear as counsel for the juvenile. In my own experience, we resolved this problem by hiring an attorney to represent our child. However, the family will have to resist the attempts of attorneys to volunteer their services to represent the judge's child at no cost, because that itself creates another conflict under the three "rules of thumb."

• Political activity. Many of us came to the judicial arena because we and our spouse or family member have been involved in political activities. Because of the judge's need for impartiality, some of this activity must change. This need for impartiality is underscored by the number of political matters, both issue and candidate oriented, determined by courts.

  One of the least obvious ways that political activity can become an issue is in the display of yard signs. Each of us in a judicial household has a right to political expression and to have an opinion on issues. Yet, if the judge's spouse places a yard sign for "Candidate Smith" in the front yard and an issue involving "Candidate Smith" or her political party comes before that judge, how can the parties to the controversy have confidence that the yard sign was placed there by the family members of the judicial officer and does not reflect the judge's predisposition? Therefore, it is best to avoid the appearance that the judicial officer has a political predisposition.

  The same concern must be applied to fundraising. We may be called upon to host a fundraiser for a longtime friend and candidate for a public office. We may do it, but analogously with the check problem, you need to take precautions and avoid using the word "judge" in the description of and the location of the fundraising event. It is best to use just the name of the non-judicial spouse as the sponsor of the event, and to only use the more generic terms "Mr. and Mrs." or perhaps "the home of the Jones family" in describing the event location on invitations. In short, the judicial family members need to avoid the appearance of using the judge's public office title to promote a particular cause.

  Political contributions, like contributions to civic and charitable organizations, should avoid using checks that identify one of the contributors as a judicial officer. As with charitable contributions, the non-judicial family member should have a separate account from which to make those contributions. It is too easy for campaign staff to list the name of the judge as a supporter even though the check was signed and sent by the partner.

These examples do not exhaust the type or variety of ethical issues we will encounter as judicial family members or spouses, but they help show how our activities must change now that we are members of a judge's household.

The Ohio Judicial Family Network Mentor Program, initiated in October 2000, offers role-related support and psychosocial support to the partners of newly elected and appointed judges. The mentors, partners of experienced judges, are matched with mentees using the following criteria: gender, community size (urban or rural) and, if possible, court jurisdiction.

*These issues are paraphrased from "Ethical Issues for Judicial Families," Justice Randy J. Holland, Delaware Superior Court, Conference of Chief Justices, Jan. 24, 2001.

Rick Brunner is married to Judge Jennifer Brunner, Franklin County Court of Common Pleas. They are the parents of three children.

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For information about the Advisory Committee on the Judicial Family Network, please contact Ruth Ann Newcomer, Court Relations Program Manager, Supreme Court of Ohio, 614.387.9402.