By Greg Anderson, Deputy Director | Office of Judicial and Attorney Regulation
Hoosiers have three methods of becoming judges—partisan campaigns, nonpartisan campaigns, and appointment with retention elections. Because becoming a judge requires varying degrees of political involvement, the Indiana Code of Judicial Conduct allows candidates and judicial officers limited participation in political activities. Judicial candidates in an election year are permitted to engage in some political and campaign activities under Rule 4.2 that judicial officers who are not running are prohibited from engaging in under Rule 4.1.
Executive and legislative officials are elected to act on behalf of the Hoosiers in their jurisdictions. Judges are required to make decisions based on the facts of each case and the applicable law.
Be mindful that judicial candidates are not the same as candidates for executive or legislative offices, due to the role that judges play in our government. Executive and legislative officials are elected to act on behalf of the Hoosiers in their jurisdictions. Judges are required to make decisions based on the facts of each case and the applicable law. As such, judicial candidates are required to “act at all times in a manner that is consistent with the independence, integrity, and impartiality of the judiciary.”
Fundraising
Judicial candidates are not permitted to “personally solicit funds or accept campaign contributions.” Rules 4.1(A)(8) and 4.4 permit a judicial candidate in partisan, nonpartisan, and retention elections (if the retention candidate has met active opposition) to set up a campaign committee to conduct and manage the candidate’s campaign. The campaign committee is permitted to “solicit and accept only such campaign contributions as are reasonable.”
The Seventh Circuit of the United States Court of Appeals explained that a ban on personal solicitation is constitutional because the ban preserves the impartiality and the appearance of impartiality of the judiciary. The court reasoned, “We do not mean to suggest that judges who directly solicit contributions are necessarily behaving inappropriately, but the appearance of and potential for impropriety is significantly greater when judges directly solicit contributions than when they raise money by other means.” Siefert v. Alexander, 608 F.3d 974, 989-90 (7th Cir. 2010). For this reason, judicial candidates should not “personally solicit” funds but rather have a campaign committee do so.
Use of Court Staff, Facilities, and Resources
Judicial officers who are running for another term are not permitted to use court staff, court facilities, and other court resources in a judicial campaign or for political purposes under Rule 4.1(A)(10). Further, the judicial officer’s staff is not permitted to engage in political activities during work hours, including engaging in activities on the judicial officer’s behalf. Court staff and judges are not allowed to wear political buttons and other campaign gear in the workplace. Judges are not allowed to make it a condition of employment for their staff to work on the campaign at any time—but staff may voluntarily work on a judge’s campaign.
Rule 4.1(A)(10) prohibits the judge from using the court facilities in his or her campaign or for any political purpose. But what is a court facility? Advisory Opinion #1-90 recommends that judges should not use the courthouse as a campaign site or campaign headquarters.
A judge should neither hand out campaign literature and campaign paraphernalia nor make a campaign speech on the courthouse property. An inappropriate campaign use of the courthouse and its property impinges on the public’s confidence in the judicial system as an impartial and independent body that makes decisions based on facts and law—not political advocacy.
Judges are entrusted with the honor of upholding the rule of law in an impartial system of justice.
Promises and Commitments
Legislative and executive candidates use promises and commitments in their campaign material and speeches. These candidates are permitted to make such promises and commitments because they have a duty to represent and advocate for their constituents. But a judicial candidate is prohibited by Rule 4.1(A)(13) from making such statements because such promises and commitments are inconsistent with a judge’s duty to be impartial. Comment [15] to Rule 4.1 notes, “Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues which are not prohibited.”
The Seventh Circuit discussed the distinction between commitments and announcements of personal views on legal or political issues in Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010). The court noted, “A judge who promises to ignore the facts and the law to pursue his (or his constituents’) ideas about wise policy is problematic in a way that a judge who has announced considered views on legal subjects is not. The commits clauses condemn the former and allow the latter.” The Seventh Circuit in Bauer noted that due process requires judges to be open minded about the issues before them. The Seventh Circuit suggested, for example, it would be improper for a judicial candidate to promise, “I will issue a search warrant every time the police ask me to.”
Endorsements
Judges are not permitted to publicly endorse (or oppose) a candidate for any office under Rule 4.1(A)(3). This prohibition is altered if the judge is a candidate. Judicial candidates in partisan and nonpartisan elections are permitted to endorse a candidate for public office who is running in the same election cycle; retention candidates are not permitted to do the same. A judicial candidate is in the same election cycle as another candidate if the judicial candidate and the other candidate are on the same ballot for the general election.
On the issue of seeking endorsements from other candidates:
- A judicial candidate in a partisan election is permitted to seek or accept an endorsement from any person or organization. This includes an endorsement from a political organization.
- A judicial candidate in a nonpartisan election or in a retention election (that has drawn opposition) is permitted to seek or accept an endorsement from any person or organization. However, these judicial candidates cannot seek or accept an endorsement from a political organization.
Conclusion
Judicial candidates need to keep in mind that they are running to be a judge—not to be an advocate for a constituency. Judges are entrusted with the honor of upholding the rule of law in an impartial system of justice. In a similar manner, judicial candidates should aim to uphold the dignity of the judicial office, even while campaigning.
For more information
Code of Judicial Conduct, especially Canon 4 courts.in.gov/rules
Advisory Opinions #1-24 and #1-90 courts.in.gov/ojar
Adrienne Meiring’s 2014 two-part series on “The Ethics of Judicial Campaigns”