May the spouse of a Maryland judge make partisan political contributions from a joint account?

Plain-English summary

The Committee said the judicial-conduct rules do not restrict a spouse’s political contributions merely because of marriage to a judge. The spouse in the request was neither a judge nor a judicial appointee.

The contributions should not be made from a joint account. A reasonable person could view a joint-account check as a contribution by both owners, even if only the spouse signed it. The Committee said the spouse’s funds should be separately titled and directly traceable, with no contribution from the judge.

In practice

The opinion distinguishes the spouse’s independent right to contribute from the judge’s obligation to avoid apparent partisan support through shared funds.

Common questions

Q: May the spouse make partisan political donations?

A: Yes. The Committee says the Code does not govern the spouse solely because of marriage.

Q: May a donation check come from the couple’s joint account?

A: No. The opinion says a joint-account payment could appear to be the judge’s contribution too.

Q: What source of funds did the Committee identify?

A: An account owned by the spouse, containing funds traceable to the spouse and not contributed by the judge.

Background and rules framework

At issuance, the Committee applied the Code provisions it cited as Rules 4.2 and 1.3, addressing a noncandidate judge’s partisan activity and lending the prestige of office.

Citations and references

Maryland judicial-conduct rules as cited:

• Rules 1.3 and 4.2.

Other opinions cited:

• Maryland Judicial Ethics Opinion 2015-47, on political activity by a judge’s spouse.

See also

• MD Judicial Ethics Op. 2018-14: Spouse Campaigning

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 2016-23

Original opinion text

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

Maryland Judicial Ethics Committee

Opinion Request Number: 2016-23
Date of Issue: July 27, 2016
■ Published Opinion □ Unpublished Opinion □ Unpublished Letter of Advice

Political Contributions by a Judge’s Spouse Issues: May a judge’s spouse make political contributions? If so, may such contributions be made from a joint account?
Answer: Md. Rule 18-613, the Maryland Code of Judicial Conduct (the “Code”), does not restrict a judge’s spouse’s ability to make partisan political contributions. Those contributions, however, should not be made from a joint account.
Facts: The requesting judge (“Requestor”) relates that his/her spouse (the “Spouse”) wishes to make partisan political contributions in the current election cycle. The Spouse is not a judge or a judicial appointee. The Requestor has inquired whether the Code allows the Spouse to do so and, if the answer to the question is “yes,” whether the contributions may be made by checks written on an account that the Spouse and the Requestor own jointly.
Discussion: Rule 4.2 of the Code1 prohibits judges from engaging in partisan political activity unless the judge himself/herself is a candidate for elective or retentive judicial office. The Code, however, does not apply to a judge’s spouse solely because of the marital relationship. See JEC Opinion No. 2015-47. Therefore, the Code of Judicial Conduct does not restrict the Spouse’s ability to make partisan political contributions. 2 Rule 1.3 of the Code prohibits a judge from using the prestige of judicial office to “advance the personal or economic interests of the judge or others, or allow others to do so.” We have interpreted Rule 1.3 to prohibit conduct that, in the eyes of a reasonable person, might be viewed as “lending the prestige” of a judge’s office to another person. In our view, a reasonable person might conclude that a check drawn

1. Rule 4.2. Political Conduct of Judge Who Is Not a Candidate
   (a) A judge who is not a candidate shall not engage in any partisan political activity.
   (b) A judge shall resign when the judge becomes a candidate for a non-judicial office,
   except that a judge may continue to hold judicial office while a candidate for election as
   a delegate to a Maryland Constitutional Convention.
2. The result would be different if the Spouse were also a judge or a judicial appointee.
   See JEC Opinion No. 2015-47 for a discussion of this issue. Opinion Request Number: 2016-23 Date of Issue: July 27, 2016
   ■ Published Opinion □ Unpublished Opinion □ Unpublished Letter of Advice Page 2 of 2

on a joint account represents a contribution from both account owners even if the check is signed by only one owner. For this reason, contributions must be made from funds titled in, and directly traceable to, the Spouse, as opposed to commingled funds. Therefore, Requestor should request that the Spouse make political contributions from an account to which the Requestor is not a party and to which the Requestor has not contributed. Application: The Judicial Ethics Committee cautions that this opinion is applicable only prospectively and only to the conduct of the Requestor described herein, to the extent of the Requestor’s compliance herewith. Omission or misstatement of a material fact in the written request for an opinion negates reliance on this opinion.
Additionally, this opinion should not be considered to be binding indefinitely.
The passage of time may result in amendment to the applicable law and/or developments in the area of judicial ethics generally or in changes of facts that could affect the conclusion of the Committee. If the request for advice involves a continuing course of conduct, the Requestor should keep abreast of developments in the area of judicial ethics and, in the event of a change in that area or a change in facts, submit an updated request to the Committee.