A judge may not sign nominating petitions for 
political candidates.

Can a judicial officer sign nominating petitions for other candidates? Would the answer change if the judicial officer were running for election in the same year also?

Common sense would seem to tell you that a judicial officer could sign the nominating petition for another candidate, such as a neighbor or friend. Common sense would also seem to suggest the judicial officer could do that whether or not he or she were a candidate. Signing a nominating petition is a basic First Amendment right. It does not mean that the judicial officer is endorsing the candidate. It only means that the judicial officer, who happens to also be a voter, is signing the petition so the individual can have an opportunity to get on the ballot for the primary election.

That basic First Amendment right would seem to be available, even to judges who have to be more circumspect in their duties because of their judicial positions.

Having said that, there is an opinion by the Pennsylvania State Trial Judges Association that precludes a judge from signing nominating petitions for candidates. That opinion is cited as Formal Opinion 2000-1 of the Pennsylvania Conference of State Trial Judges judicial ethics committee. The committee concluded, in a sharply divided opinion, that a judge could not sign a nominating petition.

The committee’s rationale was the fact that signing a nominating petition was the legal equivalent of a public endorsement of a candidate and a public endorsement would be prohibited by Canon 7. The committee indicated that the right to vote is private, but the signing of a nominating petition would be public. The committee expressed its concern that a candidate might highlight the fact the judge signed the nominating petition for his or her benefit in the election.

A strong dissenting opinion noted numerous other jurisdictions that did allow the signing of a nominating petition by a judicial officer. The dissent noted that signing a nominating petition is not the legal equivalent of a public endorsement, but merely allows a candidate to get his or her name on the ballot for the primary election. The dissenting opinion noted that the prohibition would appear to interfere with the First Amendment’s fundamental right to vote by the judicial officer if he or she could not sign the nominating petition.

The dissent also indicated that the fact that a candidate might improperly highlight the judge’s signing of a petition should not be the basis to preclude a judge from exercising his or her First Amendment right to sign a nominating petition. Obviously, both the dissent and majority opinion would preclude a judge from soliciting others to sign another candidate’s nominating petition and clearly a judge could not circulate a nominating petition on behalf of another candidate.

Therefore, at least by the ethics opinion of the State Trial Judges Association’s judicial ethics committee, judicial officers can’t sign nominating petitions on behalf of other candidates, but, as noted, there was a strong dissent.

This writer sides with the dissent and believes a judge should be able to do so. Every judge will have to make his or her own decision on that particular point. But the fact that a judge must always protect the institution through which he or she serves does not always mean that a judge has to give up fundamental constitutional rights. The First Amendment right of a judge to sign someone else’s nominating petition should not be infringed upon and the judge should be able to do that despite the opinion, with all due respect.

A judge may participate in a civic organization geared toward encouraging people to vote.

Can a judicial officer be a member of a civic organization that is also encouraging people to vote in an election?

The answer is a difficult and interesting one because it essentially involves two conflicting canons of judicial conduct. Under Canons 4 and 5 of the Code of Judicial Conduct, judges are allowed to be involved in civic activity. Canon 4 encourages judges to speak out and engage in activities to improve the law and the legal system in the administration of justice. Under Canon 4(c), a judge can serve as a member, director or officer of an organization devoted to the improvement of the law or legal system. This is with the caveat that a judge cannot personally participate in public fundraising activities.

Under Canon 5, a judge is allowed to participate in civic and charitable activities that do not adversely reflect upon his or her impartiality or interfere with his or her performance as a judge. A judge should not serve on an organization that may appear in court regularly. A judge also should not participate in an organization if it would prevent the judge from performing his or her judicial duties because of time commitments. A judge cannot solicit funds for such charitable or educational activities.

Therefore, a nonprofit organization dedicated to educating the public on the law and the legal aspects of the right to vote would appear to be acceptable. On the other hand, Canon 7 of the Code of Judicial Conduct precludes a judge from being involved in any political activities, unless the judge is a candidate for judicial office.

The bottom line of this inquiry is whether or not the organization was involved in political activities. If it was a nonprofit, the organization would most likely not be involved because it could affect the nonprofit status, although the recent decision by the U.S. Supreme Court might, for some nonprofits, have a different answer. If the nonprofit were set up purely for political advocacy, it would appear the judge should not participate.

But if it is a normal nonprofit that has the goal of educating the public on the law or election rights, or the need for people to vote, then there would appear to be no problem with the judge’s participation. This would not be a political organization. Obviously, if the nonprofit started to endorse specific political issues or candidacies, then the judicial officer would have to resign forthwith.

But if the organization were more educational, in terms of the right to vote, how to register, does one need voter ID, etc., then it would appear the judge could participate fully. But the judge should keep in mind such educational aspects might cause the recusal of the judge if certain election law issues or voter ID issues should appear in his or her courtroom.

Therefore, despite seemingly conflicting canons, it appears in reality there is no conflict. Canon 7 precludes political activity, except during an election year, and then on a limited basis. Canons 4 and 5 are not involved with political activity. They are involved with law and education and assisting the community. Judges have always been encouraged to participate in that type of forum, as long as they do not personally participate in raising money for the civic organization.

Therefore, a judge would have the right to participate in a civic organization devoted to educating the public on the right to vote.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethicsfor more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.