May a judge in a nonpartisan retention election give a political party a photograph for possible advertising?

Plain-English summary

The judge, a candidate in a nonpartisan retention election, had been asked to provide a photograph to a political party. The judge said photographs had routinely been provided to requesting organizations and would be provided to any party. The committee applied Rule 21-700's restrictions on misleading advertising, party affiliation in nonpartisan-election advertising, and having another person do what a candidate cannot do. Source: Opinion 02-08, pp. 1–2

Because the request came two months before the election, the committee considered it likely that the photograph would be used in party advertising that identified or implied the candidate's affiliation. It said the candidate could provide the image for a use the Code permitted, but had to ask the party's intended use before supplying it. Source: Opinion 02-08, p. 2

The committee discussed Republican Party of Minnesota v. White and concluded that its ruling on announcing views did not undermine the partisanship restriction at issue in the photograph request. Source: Opinion 02-08, pp. 2–3

In practice

The opinion turns on the photograph's intended use: a party advertisement implying affiliation was prohibited, while a Code-permitted use could be allowed after the candidate asked about it. Source: Opinion 02-08, pp. 2–3

Common questions

Q: Did the committee forbid giving a photograph to any political party?

A: No. It allowed a use that the Code did not prohibit, subject to an inquiry into the party's intended use. Source: Opinion 02-08, p. 2

Q: Why did the timing matter?

A: A request two months before the election suggested the photograph could be used in party campaign advertising that implied the judge's affiliation. Source: Opinion 02-08, p. 2

Background and rules framework

The committee applied then-current New Mexico Code of Judicial Conduct Rule 21-700 to political activity and advertising by candidates in nonpartisan judicial elections. Source: Opinion 02-08, pp. 1–2

Citations and references

• New Mexico Code of Judicial Conduct Rule 21-700. Source: Opinion 02-08, pp. 1–2
• Republican Party of Minnesota vs. White (2002), discussed by the committee. Source: Opinion 02-08, pp. 2–3

See also

• NM Judicial Op. 04-05: Candidate Website Claims
• NM Judicial Op. 02-02: Primary Campaign

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Judicial Advisory Opinion 02-08

Original opinion text

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

Advisory Committee on the Code of Judicial Conduct

Hon. Frank H. Allen, Jr., Chairman
Hon. James J. Wechsler

September 20, 2002

Re: Judicial Advisory Opinion No. 02-08

Dear

You have asked this committee to give you an opinion as to whether you are permitted by the Code of Judicial Conduct to provide a photograph to a political party in light of your status as a candidate in a non-partisan retention election.

You have informed us that as a public official, it has been your practice to provide photos to organizations when requested. You would be willing to provide a photo to any political party that makes such a request.

Rule 21-700.
Elections and political activity provide as follows:

A. Incumbent judges.
(1) A judge may engage in political activity on behalf of the legal system, the administration of justice, measures to improve the law and as expressly authorized by law or by this Code.

(b) identify himself of herself as a member of a political party, except as prohibited by Subparagraph (6) of Paragraph B of this rule.

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B. Candidates for election to judicial office. Candidates for election to judicial office in partisan, non- partisan and retention elections, including judges, lawyers and non-lawyers, are permitted to participate in the electoral process, subject to the requirements that all candidates:

(3) shall not allow any other person to do for the candidate what the candidate is prohibited from doing under these rules, except activities permitted to a campaign committee;

( 6) may use advertising that does not contain any misleading contents, provided that the advertising is within the bonds of proper judicial decorum and does not, in non-partisan elections, contain any reference to the candidate's affiliation with a political party.

The Commentary makes no reference to the provisions of Rule 21- 700 quoted above.

The Code allows a candidate to advertise but requires that in non-partisan elections that the advertisements not contain any reference to the candidate's affiliation with a political party. It also provides that the candidate shall not allow any other person to do for the candidate what the candidate is prohibited from doing.

The timing of the request, two months prior to an election, circumstantially indicates that the photograph would be used as part of the political party's election advertising. One would reasonably expect that in an election season, a political party would request a photograph from a candidate that is a member of that party and use that photograph in an advertisement that would identify the candidate with that party. By providing a photograph to a political party of which you belong for this purpose, you would be allowing another to do what you are prohibited from doing -that is, providing advertisements that contain a reference, or at least a logical inference, to your affiliation with a political party.

If the political party intends to use the photograph in a way not prohibited by the Code, you may provide the photograph. However, because of the Code prohibition and your candidacy in a non-partisan election, we believe that the circumstances require that you initiate an inquiry as to the intended use before providing a photograph.

In Republican Party of Minnesota vs. White, U.S. ,2002 (June 27, 2002) the United States Supreme Court held that a canon that provides that a "candidate for judicial office, including an incumbent judge" shall not "announce his or her views.

2 on disputed legal or political issues," violates the First Amendment. In an earlier state of the White case, the plaintiffs had challenged a Minnesota canon precluding a judicial candidate from accepting partisan endorsements. That provision was upheld below, and the issue was excluded from the grant of certiorari. The Supreme Court decision, thus, does nothing to cast doubt on the ban on partisan endorsements or other canons designed to limit partisanship, such as the prohibition on a candidate's identification of his or her own party allegiance. (National Ad Hoc Advisory Committee on Judicial Election Law. July 12, 2002).

It is our opinion that the Code prohibits a judge candidate from providing his or her political party with a photograph under circumstances that indicate that the photo will be used in an advertisement that will reflect or imply the candidate's affiliation with that party.

Sincerely,
?

Frank H. Allen, Jr. Chairperson
Judicial Advisory Committee

FHA/mah

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