The Ethics of Judicial Campaigns: Part 2 (see Part 1)
One of the hottest topics these days in judicial elections is campaign speech. As judicial elections become more heated, so too does the campaign rhetoric. It is important to remember, however, that judicial elections are different than other elections.
Judicial candidates certainly maintain a first amendment right to express ideas during their campaigns. Nonetheless, the underpinnings of judicial office—independence, integrity, and impartiality—also require that judicial candidates be more circumspect in what they say while campaigning.
A judicial candidate does not want to undermine the public’s confidence in the judiciary by making statements inconsistent with the impartial adjudication of disputes.
Part II of this series on judicial campaign ethics looks at campaign speech/conduct and provides guidance about how to avoid common ethical missteps while on the election trail.
Can I say that?
The most common question I get asked during campaign season is “Can I say that?” My first response is always the same—have you read Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010)(upholding the constitutionality of various provisions of Canon 4 of Indiana’s Code of Judicial Conduct)? I suggest that candidates read this decision because, in dicta, the Seventh Circuit panel offers several examples of proposed campaign statements which they believe would not be inconsistent with the impartial performance of judicial duties and compares those statements with ones they believe would. See Bauer, 620 F.3d at 715-16.
Besides the Bauer decision, other resource materials that judicial candidates should read are Matter of Davis, Order (May 7, 2013); Matter of Pierson-Treacy, Public Admonition (Nov. 29, 2011); Matter of Spencer, 759 N.E.2d 1064 (Ind. 2001); Matter of Bybee, 716 N.E.2d 957 (Ind. 1999); Matter of Haan, 676 N.E.2d 740 (Ind. 1997), and Advisory Opinion #1-01.
Advisory opinions and judicial disciplinary decisions can be found at http://courts.in.gov/ojar
Listed below, I’ve provided some campaign statements/situations that have arisen and given the best current advice (based on precedent and persuasive authority) on “Can I say that during my campaign?”
Philosophy Statements vs. Improper Promises
“I’m tough on crime.”
Yes. This is a statement of your general stance but not necessarily a pledge or promise to act inconsistent with the law. See Bauer, 620 F.3d at 715. In fact, you can make general philosophical statements about your approach to the law, such as “I would have joined Justice White’s dissent in Roe” or “I am a textualist and will not resort to legislative history.” Id. Be careful, however, about indicating how you would rule on specific cases before the court you are campaigning for, as such statements could be construed as inconsistent with Rule 4.1(A)(12)(duty to not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court) and 4.1(A)(13)(duty to not make pledges, promises, or commitments that are inconsistent with the impartial performance of judicial duties in connection with cases likely to come before the court).
“When Judge X ran for judge of the Circuit Court, he promised to send more child molesters to jail…He’s kept his promise. Let’s keep Judge X.”
No. Unlike the statement above, this goes beyond stating your general stance about crime and implies that you (as Judge X) were acting in a manner inconsistent with the impartial adjudication of disputes. It suggests a tendency to lean towards conviction rather than fair trials. See Matter of Spencer, 759 N.E.2d 1061 (Ind. 2001); see also Matter of Haan, 676 N.E.2d 740 (Ind. 1997)(candidate disciplined for promising if elected to “stop suspending sentences” and to “stop putting criminals on probation”); see also In the Matter of Watson, 794 N.E.2d 1 (New York 2003)(candidate disciplined for making statements that community needed a judge who would assist the police in cleaning up the streets).
Statements in Support of the Candidate
“Vote Jane Smith, Judge of the Superior Court.”
It depends. If you currently are the judge of the Superior Court, then this is not a misleading statement. If you are not a judge, then this statement could give some voters the misleading impression that you are the incumbent judge running for re-election. This type of impression could lead to an ethical complaint being filed against you. See North Carolina State Bar v. Hunter, 696 S.E.2d 201 (N.C. 2010)(candidate disciplined for using the term “Madame Justice” when she had never been a judge). When designing your campaign materials, do not underestimate the importance of the word “for” since “Vote Jane Smith for Judge of the Superior Court” is not misleading, but “Vote Jane Smith, Judge of the Superior Court” could be if Jane is not already a judge.
“Tell all your family how you feel about me because I’m running this year for Common Pleas Court.” (remark made by a judge after a defendant thanked him for accepting a plea agreement)
No! This statement is problematic on multiple levels. See In re Michael (Ohio Board 2012) (http://tinyurl.com/a89ocgc). It is an abuse of the prestige of judicial office (Rule 1.3) because you are using your judicial office to advance private (campaign) interests and is an impermissible use of court resources for campaign purposes (see Rule 4.2(A)(10)). It gives the appearance of bias (Rules 1.2, 2.2, and 2.4), as it suggests you only accepted the plea agreement to curry a favorable vote. And most importantly, it simply does not promote confidence in the independence, integrity, and impartiality of the judiciary. See Rule 4.2(A)(1).
“If you are truly my friend, then you will cut a check to the campaign! If you do not, then it’s time I checked you. Either you are with me or against me!” (in a text from the candidate)
NO!!!!!! Not only does this “request” violate the provision against judicial candidates directly soliciting campaign funds (Rule 4.1(A)(8)), but it is difficult to think of a statement more inconsistent with the ethical obligations of judicial office than this one. Implied threats (or implied favors) have no place in judicial campaigns. See Inquiry Concerning Davis, Cease and Desist Order (Kansas Comm’n on Jud. Quals. July 18, 2008); see also In re Singletary, Order (Penn. Ct. of Jud. Disc., Jan 23, 2009 at www.cjdpa.org/decisions/jd08-01.html).
Statements about Your Opponent
“The number of pending cases in County Court has more than doubled under the term of my opponent. Hundreds of people are still waiting to have their disputes resolved.”
It depends. If the incumbent judge has been dilatory with the docket or otherwise has not been actively resolving cases and you have support for this statement, then it is ethically permissible. However, if the reason for the doubling of cases is attributable to other factors, then you may find yourself in ethical hot water, as the statement is misleading and inconsistent with the Code of Judicial Conduct. Under Rule 4.1(A)(11), a judicial candidate may not knowingly or with reckless disregard for the truth make any false or misleading campaign statement. This includes not only blatant falsehoods but statements which may be “technically true” but present a misleading image. See Matter of Bybee, 716 N.E.2d 957 (Ind. 1999). For example, although it may be technically true that a candidate has never lost a case, it presents a misleading image for the candidate to make that statement if the candidate has only been an attorney for one year and has never tried a case. When it comes to campaign statements, implications matter.
“82% of my opponent’s contributors are Criminal Defense Attorneys…What are they trying to buy?”
No. See Inquiry Concerning Baker, Order (Fla. Sup. Ct., Nov. 5, 2009). While it is permissible to point out the source of a candidate’s contributors, the phrase “what are they trying to buy” went over the line, as it suggested that the candidate was inclined to act in a biased fashion when there was no evidence to support this assertion. See also Matter of Davis, Order (May 7, 2013).
Be careful when deciding whether to make disparaging remarks about your opponent in campaign materials because 1) you likely will be asked about the basis for those remarks (possibly in a Commission letter of inquiry arising from a complaint filed by your opponent or his supporters), and 2) technically true statements still can create a misleading impression about your opponent and cast disrepute to the judiciary as a whole. See, e.g. Matter of Gableman, 784 N.W.2d 605 (Wis. 2010).
Should I say that?
I indicated that the most common ethics question I get during campaign season is “can I say that,” but let me suggest that there is a better question for candidates to ask when contemplating proposed campaign speech—“Should I say that?” I believe this is the better question for a candidate to internally ask himself or herself because there are a variety of statements and campaign postures which may have first amendment protection and not violate the Code of Judicial Conduct but which still are unwise. After all, you are running for judge. If integrity, independence and impartiality are the cornerstones of the profession and the overarching goal is to apply the law fairly, timely, and in a manner that promotes public confidence in the judiciary, shouldn’t a campaign for the job be run in the same way?
