May an Alabama judge join a judicial candidate's fundraiser host committee and appear on a mass invitation?

Plain-English summary

The Commission reconsidered Opinion 12-914, which had barred a judge's name as fundraiser host on an invitation sent to a lawyer or litigant who appears or is likely to appear in the judge's court. Opinion 22-951 had separately permitted public support for a judicial candidate. The Commission explains that these earlier opinions addressed different parts of Canon 7A(1): campaign activity for a judicial candidate and fund solicitation for someone else.

Canon 7A(1) does not discourage campaign activity merely because it supports a judicial candidate. It does discourage involvement in fund solicitation for another candidate, including a judicial candidate. The Commission therefore calls service on such a host committee undesirable, while rejecting a categorical prohibition for the described mass invitation. It overrules Part I.A of Opinion 12-914.

The Commission says a mass invitation with the judge's name but no judicial title or position poses less coercion concern than direct, personal solicitation. It does not say all host roles are allowed. The size and identity of the host committee and invitation recipients, and whether political influence might appear to affect judicial decisions, remain part of the fact-specific Canon 7A(1) inquiry.

In practice

The opinion separates support for a judicial candidate from involvement in that candidate's fundraising. Its conclusion about a mass invitation rests in part on omitting any reference to the hosting judge's judicial position; different facts can still make the activity prohibited.

Common questions

Q: May a judge's name appear on a mass fundraiser invitation sent to attorneys?

A: The Commission says this is discouraged but not categorically barred, including when lawyers or litigants receive it, if the invitation omits the judge's title and the surrounding facts do not make the activity inappropriate.

Q: Did the Commission approve a judge personally asking lawyers for contributions?

A: No. It distinguishes the mass invitation from direct, in-person solicitation and expressly leaves the outcome of particular host activities to their facts.

Q: What happened to Opinion 12-914's contrary rule?

A: Part I.A, which barred the described host listing to lawyers or litigants, is overruled.

Background and rules framework

The opinion interprets Alabama Canon 7A(1)'s separate treatment of campaign activity for a judicial candidate and fundraising for someone other than the judge. It invokes Canons 1 and 7 in its fact-specific inquiry into political influence on judicial decision-making.

Citations and references

Alabama Canons of Judicial Ethics:

• Canons 1, 7, 7A(1), and 7B(4).

Statutes:

• Alabama Code § 17-5-8, cited for public campaign-contribution reporting.

Cases:

• Salvagio v. State, 274 So. 3d 310 (Ala. Crim. App. 2018), cited as an example of apparent prejudice when a judge questioned a witness about campaign donations.

Other opinions cited:

• Alabama JIC Advisory Opinion 12-914, overruled in Part I.A on the host invitation.
• Alabama JIC Advisory Opinion 22-951, on public support for judicial candidates.

See also

• AL Judicial Ethics Op. 25-968: A Spouse's Campaign
• IL Judicial Ethics Op. 1996-12: Spouse's Sheriff Campaign Dinner

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 23-959

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: NOVEMBER 20, 2023 ADVISORY OPINION 23-959
POLITICAL ACTIVITY: SERVICE
ON CAMPAIGN HOST
COMMITTEES FOR JUDICIAL
CANDIDATES
ISSUES
Is a judge prohibited by the
Canons of Judicial Ethics from
serving as a member of a host
committee for a candidate’s campaign
for judicial office?
Answer: No, but it is
discouraged.
Is a judge prohibited by the
Canons of Judicial Ethics from being
listed as a host on a mass-mailed
invitation to a political fundraiser for
a judicial candidate?
Answer: No, but it is
discouraged.
FACTS
The Commission has been asked to
reconsider its advice in Advisory
Opinion 12-914. In that opinion, the
Commission advised that a judge may
not be listed as a host for a political
fundraiser for a candidate for judicial
office on an invitation sent to a
lawyer or litigant who appears in the
judge’s courtroom or who is likely to
appear in the judge’s courtroom.
More recently, the Commission
issued Advisory Opinion 22-951
which advised that a judge is not
discouraged by Canon 7 from
engaging in activities in connection
with a candidate for judicial office.
DISCUSSION
Judges’ political activity is
governed, generally, by Canon 7.
Canon 7A(1) provides:
A judge or a candidate for
election to a judicial office
shall endeavor at all times to
refrain from political activities
inappropriate to the judicial
office that he or she holds or
seeks. It is desirable that a
judge or a candidate for
election to judicial office
endeavor not to be involved in
the internal workings of
political organizations, engage
in campaign activities in
connection with a political
candidate other than a
candidate for a judicial office
and not be involved in political
fund solicitations other than
for himself or herself.
However, so long as judges are
subject to nomination and
election as candidates of a
political party, it is realized
that a judge or a candidate for
election to a judicial office
cannot divorce himself or
herself completely from
political organizations and
campaign activities which,
indirectly or directly, may be
involved in his or her election
or re-election. Nevertheless,
should a judge or a candidate
for a judicial position be
directly or indirectly involved
in the internal workings or
ADVISORY OPINION 23-959
PAGE 2
campaign activities of a
political organization, it is
imperative that he or she at all
times conduct himself or
herself in such a manner as to
prevent any political
considerations, entanglements,
or influences, from ever
becoming involved in or from
ever appearing to be involved
in any judicial decision or in
the judicial process.
(Emphasis added.) There are three
types of political activity that,
although not prohibited, are
specifically discouraged by Canon
7A(1): (1) involvement in the internal
workings of a political organization;
(2) engaging in campaign activities in
connection with a political candidate,
except for a candidate for judicial
office; and (3) involvement in
political fund soliciations other than
for the judge’s own campaign.1
The
two opinions that the Commission is
now asked to reconcile address the
second and third activities
specifically mentioned in Canon
7A(1).
In Advisory Opinion 22-951, the
Commission addressed whether a
judge could publicly support non-
incumbent candidates for a judicial
office in any judicial race, including
by making contributions to the
candidate’s campaign. The
Commission advised that the Canons
1
Personal solicitation of contributions for
the judge’s own campaign by the judge is
strongly discouraged by Canon 7B(4).
neither prohibited nor discouraged
the judge from engaging in such
activity because such activity was in
connection with a candidate for
judicial office. Id. Thus, the activity
would fall squarely within Canon
7A(1)’s exception to the
admonishment against engaging in
campaign activies in connection with
a political candidate—i.e., Canon
7A(1)’s second activity.
However, this exception is not
without limits. The other
admonishments in Canon 7A(1)
remain applicable to a judge’s
political activity as does Canon 7,
which provides, “A judge or a judicial
candidate shall refrain from political
activity inappropriate to the judicial
office.” See also Canon 7A(1)
(“Nevertheless, should a judge or a
candidate for a judicial position be
directly or indirectly involved in the
internal workings or campaign
activities of a political organization,
it is imperative that he or she at all
times conduct himself or herself in
such a manner as to prevent any
political considerations,
entanglements, or influences from
ever becoming involved in or from
ever appearing to be involved in any
judicial decision or in the judicial
process.”) Moreover, a judge is still
required to comply with all other
Canons. See Advisory Opinion 78-39;
see also Advisory Opinion 22-951.
ADVISORY OPINION 23-959
PAGE 3
Advisory Opinion 12-914, on the
other hand, addresses Canon 7A(1)’s
third activity—involvement in
political fund solicitations other than
for the judge. In that opinion, the
Commission advised that a judge may
not be listed as a host for a political
fundraiser for a judicial candidate on
an invitation to a lawyer or litigant
who appears in the judge’s court or is
likely to appear in the judge’s court.
Id.
In reaching this conclusion, the
Commission observed that the
explicit language of Canon 7A(1)’s
admonishment against political fund
solicitation does not contain an
exception for candidates for judicial
office as does the immediately
preceding clause of that Canon. Id.
Further, the Commission recognized
two dangers which are inherent in a
judge’s solicitation of funds: (1) that
“the prestige of the judicial office
will be used to solicit funds” and (2)
the danger of coercion—i.e., that “the
person solicited will feel obligated to
respond favorably if the soliciting
judge is in a position of influence or
control.” Id. Additionally, the
Commission explained:
[I]t would be “virtually
impossible” for a judge to
solicit funds on behalf of
another from lawyers who
practice within the jurisdiction
of the judge’s court or from
litigants appearing before the
judge’s court without violating
the requirement to conduct
oneself “in a manner at all
times as to prevent any
political considerations,
entanglements, or influences
from . . . ever appearing to be
involved in any judicial
decision or in the judicial
process.”
Id. (quoting Canon 7A(1)). The
Commission further concluded “that
an objective, reasonable person
would conclude that the inclusion of
a judge as one of the hosts to a
political fundraiser for a judicial
candidate constitutes the judge’s
personal solicitation of a campaign
contribution.” Id.
By comparing the reasoning of the
two opinions, it is apparent that the
conclusions in each of them rely on
different clauses in Canon 7A(1).
Therefore, the two opinions do not
conflict with each other. While a
judge is neither prohibited nor
discouraged from engaging in
political activities in connection with
a candidate for judicial office,
Advisory Opinion 22-951, a judge,
still, is discouraged from being
involved in political fund solicitation
other than for the judge. Advisory
Opinion 12-914.
However, in reconsidering the
Commission’s advice in Advisory
Opinion 12-914, it is the opinion of
the Commission that a judge is not
prohibited from being listed as a host
on an invitation to a political
fundraiser for a judicial candidate,
including invitations that are sent to
lawyers or litigants. A judge is
ADVISORY OPINION 23-959
PAGE 4
discouraged, but not prohibited, by
Canon 7A(1) from engaging in
political fund solicitation on behalf
of another candidate.
As noted above, in Advisory
Opinion 12-914, the Commission
discussed two dangers presented by a
judge’s solicitation of funds that
necessitated a prohibition on a judge
being listed as a host on an invitation
to a political fundraiser to a lawyer or
litigant. First, there is a danger that
the prestige of the judicial office
would be used to solicit funds for the
judicial candidate’s campaign. This
danger is simply avoided by ensuring
that any reference to the judge’s title
or position is not used on the
invitation or in connection with the
fundraiser. See Advisory Opinion 06-
869 (“[I]f the judge chooses to engage
in these two activities[—submitting
names of potential donors and
organizing fundraising events—], he
should do so in his invidual capacity,
and not identify himself or allow
himself to be identified as a judge.”).
Contra id. (“In addition, the judge
should not solicit funds from lawyers
or litigants appearing before either
the judge’s current court or the court
on which he seeks to sit.”); see also
Advisory Opinion 12-914
(“[B]ecause attorneys and litigants
would be aware of the soliciting
judge’s official position without any
reference to the judge as “Judge” or
“Honorable,” the dangers implicit in
fundraising could not be avoided.”).
The second danger that the
Commission recognized in Advisory
Opinion 12-914 was that the person
solicited might “feel obligated to
respond favorably to the soliciting
judge if that judge is in a position of
influence or control.” The
Commission further explained, “As a
host to a fundraising event, a judge
would be soliciting and encouraging
contributions, and the judge’s
invitation would significantly impact
an attorney’s or litigant’s decision to
attend the fundraiser and make a
contribution.” See also Advisory
Opinion 09-900. Additionally, the
Commission noted that the danger of
coercion was prominent because of
the reporting requirements in
Alabama’s campaign finance law
which requires a candidate to report
the names of contributors to the
candidate’s campaign and requires
the Alabama Secretary of State to
maintain a searchable database of
those reports on its website. Ala.
Code § 17-5-8 (Westlaw, current
through the end of the 2023 First
Special, Regular, and Second Special
Sessions).
The Commission agrees that
circumstances exist which would
create an appearance that the judge’s
conduct would allow political
considerations, entanglements, or
influences to become involved in or
appear to become involved in a
judicial decision or in the judicial
process. See Salvagio v. State, 274
So. 3d 310, 316 (Ala. Crim. App.
2018) (circuit court judge created “an
apparent prejudice or bias” against
contemnor when she asked the
contemnor while he was on the
ADVISORY OPINION 23-959
PAGE 5
witness stand and under oath about
contributions that he had made to her
political opponent). However, there
are circumstances in which a judge,
although discouraged from doing so,
may engage in political activity
without allowing political
considerations, entanglements, or
influence from becoming involved or
appearing to become involved in a
judicial decision or in the judicial
process.
Allowing a judge’s name to be
listed as a host on a mass invitation
to a political fundraiser for a judicial
candidate is an example of the latter.
As stated above, the danger that the
prestige of the judge’s judicial office
would be used for political fund
solicitation could be easily avoided
by removing all references to the
hosting judge’s title or position from
the invitation. As for the danger of
coercion if the judge is in a position
of power or influence, this danger is
significantly less prominent where
the judge’s name, without reference
to his or her judicial title, is included
on an invitation that is sent out to a
mass group as opposed to a direct, in-
person solicitation by the judge.
Compare Advisory Opinion 00-755 (a
probate judge is not prohibited from
endorsing a candidate for judicial
office in an advertisement to be
placed in the local newspaper) with
Advisory Opinion 09-900 (a judge
may not serve as an auctioneer for the
fundraiser auction of a local women’s
club that is affiliated with a political
party). This is true even though the
identity of campaign contributors is
required to be reported to and made
publicly available by the Alabama
Secretary of State. The mere fact that
this information is reported does not,
by itself, suggest that political
considerations, entanglements, or
influences are involved in or appear
to be involved in a judicial decision
or in the judicial process.
Accordingly, Part I.A. of Advisory
Opinion 12-914 is overruled.
Nevertheless, a judge’s
participation in political fund
solicitation for candidates other than
himself or herself is still discouraged
under Canon 7A(1) regardless of the
office the candidate may be seeking—
i.e., judicial and non-judicial. In
offering this advice, the Commission
emphasizes the third sentence of
Canon 7A(1):
However, so long as judges are
subject to nomination and
election as candidates of a
political party, it is realized
that a judge or a candidate for
election to a judicial office
cannot divorce himself or
herself completely from
political organizations and
campaign activities which,
indirectly or directly, may be
involved in his or her election
or re-election.
(Emphasis added.) Accordingly, the
Commission advises that judges
should refrain from participating on
host committees for another judicial
candidate’s campaign, even though
they are not prohibited from doing so
ADVISORY OPINION 23-959
PAGE 6
by the Canons. Moreover, the
Commission’s advice should not be
understood as concluding that a
judge’s service on a judicial
candidate’s campaign host committee
can never be prohibited under Canon
7A(1). The paramount consideration
is always that a judge “uphold the
independence and integrity of the
judiciary” by not allowing “political
considerations, entanglements, and
influences from ever becoming
involved in or from ever appearing to
be involved in any judicial decision
or in the judicial process.” Canons 1
and 7A(1). This determination
ultimately depends on the particular
facts surrounding the judge’s service
on the judicial candidate’s campaign
host committee, including the size
and identity of the other members on
the host committee and the number
and identity of recipients who are
sent invitations. Judges are
encouraged to contact the
Commission for specific advice on
whether their decision to join a host
committee for a judicial candidate
might be prohibited under the
Canons. Furthermore, judges should
ensure that, while engaging in
political activities in connection with
candidates for judicial office, they
remain in compliance with all
applicable statutes and rules.
REFERENCES
Alabama Canons of Judicial Ethics 1,
7, 7A(1), and 7B(4).
Ala. Code § 17-5-8 (Westlaw, current
through the end of the 2023 First
Special, Regular, and Second Special
Sessions).
Alabama JIC Advisory Opinions 78-
39, 00-755, 06-869, 09-900, 12-914,
and 22-951.
Salvagio v. State, 274 So. 3d 310
(Ala. Crim. App. 2018)
This opinion is advisory only and is
based on the specific facts and
questions submitted by the judge who
requested the opinion pursuant to
Rule 18 of the Alabama Rules of
Procedure of the Judicial Inquiry
Commission. For further information,
you may contact the Judicial Inquiry
Commission, P.O. Box 303400,
Montgomery, Alabama 36130-3400;
tel.: (334) 242-4089; email:
[email protected].