The Ethics of Judicial Campaigns: Part 1 (see Part 2)
A whirlwind of activity, the pulse of adrenaline, and general excitement (and despair) loom in the air—it’s the change of season. Racing, you say? No, it’s judicial campaign season.
With the primary elections approaching, I have received an increasing number of questions about judicial elections and campaigns. Because the questions often are recurring, I thought an “Ethics 101 for Judicial Elections” might be useful for anyone currently (or contemplating in the future) running for judicial office. Since there is a lot of ground to cover, this is the first of a two-part series. Part one is about the nuts and bolts of judicial elections. Part two will cover campaign speech and other campaign conduct.
What am I required to do as a judicial candidate?
You must notify the Indiana Commission on Judicial Qualifications in writing within one week after becoming a candidate that you are now a judicial candidate, the judicial office sought, your address, and your telephone number [Rule 4.2(A)(5)]. Email notification is acceptable. An individual “becomes a candidate” once he or she publicly announces his/her intent to run for judicial office.
You must comply with applicable election laws [Rule 4.2(A)(2)]. This means you must contact the Secretary of State, Elections Division to find out about all necessary paperwork required for filing your judicial candidacy, campaign contributions, and expense reports, and to learn about all applicable conflict of interest and fundraising restrictions.
You must file a Statement of Economic Interest (SEI) form with the Qualifications Commission (which is different than the notification required in Rule 4.2(A)(5) as mentioned above) and retain a file-stamped copy to file with your notice of declaration with the Secretary of State. It is important to remember to send a self-addressed, stamped return envelope if you are filing your SEI form by mail since it will be difficult for Qualifications Commission staff to locate your form at the last minute.
You must review and approve all campaign statements and materials before dissemination [Rule 4.2(A)(3)].
You should review ALL of Canon 4 of the Code of Judicial Conduct, including the comments, as well as the campaign discipline cases of Matter of Bybee, 716 N.E.2d 957 (Ind. 1999) and Matter of Davis, #24S00-1210-JD-610, to learn what campaign conduct is ethically permissible and impermissible.
You should review Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) and Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), which are the latest Seventh Circuit cases regarding the interplay between the First Amendment of the Constitution of the United States and rules regarding judicial campaign conduct.
If I’m in a partisan judicial election, what am I allowed to do?
You may identify yourself as a candidate of a political party [Rule 4.2(B)(6)].
You may advertise on behalf of your candidacy, including on social network sites [Rule 4.2(B)(2)].
You may seek, accept, and use endorsements in support of your candidacy [Rule 4.2(B)(5)].
You may publicly endorse and contribute to candidates for public office running in the same election cycle as you [Rule 4.2(B)(3)]. Your “election cycle” is one year before your primary or general election, whichever comes first [Rule 4.2(B)]. “Running in the same election cycle” means that the other candidate will be on the ballot at the same time as you. You may not contribute to (or attend fundraisers for, see below) candidates who have an election cycle which intersects with yours but who are not on the same ballot. For instance, if the Mayor is running in an odd-year general election and your primary is in an even year, the two of you may be campaigning at the same time since you are permitted to campaign one year prior to your primary election. However, under Rule 4.1(A)(4), you are not permitted to endorse, contribute to, or attend fundraisers for the Mayor because you will not be on the ballot at the same time.
You may attend fundraisers of other candidates for public office running in the same election cycle as you. You may only purchase a ticket for the event for you and a guest [Rule 4.2(B)(4)].
You may contribute to, attend meetings, and attend dinners and other events of political organizations [in fact, you can do this at any time if seeking partisan judicial office—see Rule 4.1(C)]. I often get asked whether a judicial candidate can “buy a table” at a political party event when the candidate is in his/her election cycle. Rule 4.1(C)(3) provides that a candidate may “attend dinners and other events sponsored by political organizations and may purchase a ticket for such event and a ticket for a guest.” So, the answer is no, a candidate may not buy all the tickets for a table. You may, however, voluntarily contribute an additional amount at any time to a political party.
What am I not permitted to do?
You may not use court facilities or resources for your campaign nor may you compel court staff to work on your campaign [Rule 4.1(A)(10)]. Court staff may work on your campaign, but they must do so on their own time and only on a voluntary basis. They may not wear campaign buttons to work or post campaign stickers/materials at their desks (and neither can you).
You must establish a campaign committee to accept contributions—if you will be using them to support your candidacy—because you are not permitted to personally solicit or accept campaign contributions. Keep in mind when setting up a campaign committee that you are responsible for making sure that your committee complies with the Code of Judicial Conduct and election laws. If you are already a judge, be aware that disqualification issues may arise, as you will need to disqualify from any case in which an officer (i.e. chairman and treasurer) of your campaign committee appears. Likewise, if you are successful in your bid to become judge, that duty to disqualify or to at least inform all parties about your prior campaign relationship with the attorney/party will continue for a period of time after the election. See Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012).
You may not pay an assessment or mandatory fee to a political party [Rule 4.1(A)(4)]. In 1992, the Qualifications Commission issued an advisory opinion noting that paying a mandatory assessment or fee in order to obtain party support is prohibited under the Code of Judicial Conduct. Voluntary contributions, however, are permitted. As the Commission indicated in the 1992 Opinion, “Clearly, political organizations are more likely to support active and contributing party members, and obviously, it is reasonable and necessary for them to expect their candidates to contribute their fair share of the cost of the support. This must be accomplished on a voluntary basis.” Adv. Op. #1-92 (emphasis added). Although the Code of Judicial Conduct has been revised several times since 1992, the advice espoused in this Advisory Opinion remains the Commission’s viewpoint regarding the payment of assessments/slating fees.
This is a quick look at some of the concrete ethical obligations required of a judicial candidate. In the next edition, I’ll write about the more nuanced area of campaign speech. Until then, always keep in mind when running for judicial office the three cornerstones of the Code of Judicial Conduct: independence, integrity, and impartiality. If you keep all of your campaign conduct within these three concepts, you’re well on your way to running a campaign without any ethical hiccups.
