Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)(Part 3)

This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.

Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)

[continued]

Personal solicitation clause
Canon 5C(2) of the 1990 model code provided: “A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law.” Similarly, Rule 4.1(A)(8) of the 2007 model provides: “A judge or a judicial candidate shall not personally solicit or accept campaign contributions other than through a campaign committee . . . .”
In the 2015 decision The Florida Bar v. Williams-Yulee, by a 5-4 vote, the U.S. Supreme Court rejected a First Amendment challenge to the personal solicitation clause, affirming the judgment of the Florida Supreme Court publicly reprimanding a former judicial candidate for a letter asking for contributions to her campaign she had mailed and posted on her campaign web-site.  Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015). The Court noted that most of the states (30 of the 39) that elect judges, like Florida, prohibit judicial candidates from soliciting campaign funds personally, but allow them to raise money through committees.

The Court began with the key principle of its decision:

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.

Applying strict scrutiny, the U.S. Supreme Court found that the Florida Supreme Court had “adopted Canon 7C(1) to promote the State’s interests in ‘protecting the integrity of the judiciary’ and ‘maintaining the public’s confidence in an impartial judiciary.’” The Court held that the state’s interest in preserving public confidence in the integrity of its judiciary was greater than “its interest in preventing the appearance of corruption in legislative and executive elections.”

The Court rejected the candidate’s argument that the canon was unconstitutionally underinclusive because it failed to restrict other speech equally damaging to judicial integrity and its appearance. The Court also rejected the candidate’s argument that the canon was not narrowly tailored because it applied not only to direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear before the candidate if elected, but to a letter posted on-line and distributed by mass mailing. The Court stated that the “considered judgments” of “most States with elected judges . . . that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary . . . deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who ‘sit as their judges.’” Finally, the Court rejected the candidate’s argument “that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits.”

Prior to Williams-Yulee, the 6th, 8th and, 11th Circuits, in cases from Georgia, Kentucky, and Minnesota, and a federal district court in Kansas had held the personal solicitation clause unconstitutional. Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (Georgia); Yost v. Stout, 2008 U.S. Dist. LEXIS 107557 (2008), appeal dismissed, 607 F.3d 1239 (10th Circuit 2010); Carey v. Wolnitzek, 614 F.3d 189 (6th Circuit 2010) (Kentucky); Republican Party of Minnesota v. White, 416 F.3d 738 (8th Circuit 2005), cert. denied, Dimick v. Republican Party of Minnesota, 546 U.S. 1157 (2006).  Sitting en banc, the 8th Circuit upheld a revised version of the personal solicitation clause in Minnesota. The 7th Circuit has twice upheld the solicitation ban in cases from Wisconsin and Indiana. Siefert v. Alexander, 608 F.3d 974, petition for re-hearing en banc denied, 619 F.3d 776 (7th Circuit 2010), petition for certiorari denied, 131 S. Ct. 2872 (2011); Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011).  After Williams-Yulee, the 9th Circuit sitting en banc upheld the clause in the Arizona code of judicial conduct prohibiting judicial candidates from personally soliciting or accepting campaign contributions other than through a campaign committee.  Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), certiorari filed (http://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-9.htm).  The Arkansas Supreme Court rejected challenges to the constitutionality of the personal solicitation clause in judicial discipline or bar discipline proceedings.  Simes v. Judicial Discipline and Disability Commission, 247 S.W.3d 876 (Arkansas 2007).

Relying on Williams-Yulee and affirming the judgment of the district court denying a motion for a preliminary injunction, the U.S. Court of Appeals for the 6th Circuit held that a judicial candidate’s campaign committee failed to demonstrate a likelihood of success on the merits of its claim that the temporal restrictions on solicitation and receipt of campaign contributions in the Ohio code violated its First Amendment rights and the Equal Protection Clause of the 14th Amendment.  Friends of O’Toole v. O’Connor (6th Circuit September 21, 2015) (http://www.ca6.uscourts.gov/opinions.pdf/15a0232p-06.pdf).

Effective December 31, 2015, the New Mexico Supreme Court added a prohibition on personal solicitation of campaign contributions by judicial candidates to the state’s code of judicial conduct. Rule 21-402A now provides: “Candidates shall not personally solicit or personally accept contributions for their own campaigns.” The Court deleted a previous comment that had stated that “[c]andidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule . . . .”

 

Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (Part 2)

This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.

Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)

[continued]

False or misleading statements
Rule 4.1(A)(11) of the 2007 American Bar Association Model Code of Judicial Conduct provides: “A judge or judicial candidate shall not . . . knowingly, or with reckless disregard for the truth, make any false or misleading statement.” The prohibition on false statements has withstood several constitutional challenges, but the 6th and 11th Circuit Courts of Appeals (in cases from Kentucky and Georgia), the U.S. District Court for the Southern District of Ohio, and the state supreme courts in Alabama, Michigan, and Ohio have held that a prohibition on misleading statements in judicial election campaigns violates the First Amendment.

False statements
A judicial candidate challenged the prohibition on false statements in the Ohio code of judicial conduct when she was reprimanded for identifying herself as an incumbent judge when she was not.  In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014).  The Ohio code of judicial conduct provided that:

During the course of any campaign for nomination or election to judicial office, a judicial candidate, by means of campaign materials, including sample ballots, advertisements on radio or television or in a newspaper or periodical, electronic communications, a public speech, press release, or otherwise, shall not knowingly or with reckless disregard . . . post, publish, broadcast, transmit, circulate, or distribute information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false or, if true, that would be deceiving or misleading to a reasonable person.

Applying strict scrutiny, the Ohio Supreme Court held that the state has a compelling government interest in ensuring truthful judicial candidates, noting “the public interest is served not only by ensuring that Ohio’s judges are trustworthy, but also by promoting a collective public awareness of that trustworthiness” and “there is every reason to expect and insist that candidates will be truthful in their campaign speech when they are seeking a judicial position.” The Court concluded that the code’s limit on “a judicial candidate’s false speech made during a specific time period (the campaign), conveyed by specific means (ads, sample ballots, etc.), disseminated with a specific mental state (knowingly or with reckless disregard) and with a specific mental state as to the information’s accuracy (with knowledge of its falsity or with reckless disregard as to its truth or falsity) is constitutional.”

In a challenge to the Kentucky code of judicial conduct, the U.S. Court of Appeals for the 6th Circuit held that the clause prohibiting false statements made knowingly or with reckless disregard for the truth “is constitutional on its face.” Winter v. Wolnitzek, 2016 U.S. App. LEXIS 15544 (U.S. Court of Appeals for the 6th Circuit 2016) (http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf).

The narrowest way to keep judges honest during their campaigns is to prohibit them from consciously making false statements about matters material to the campaign. This canon does that, and does it clearly. In the words of the district court: “Don’t want to violate the Canon? Don’t tell a lie on purpose or recklessly.” . . . Given the mens rea requirement, a judicial candidate will necessarily be conscious of violating this canon.

The Court noted that it had recently invalidated a ban on false statements that covered non-judicial candidates for political office in Ohio, but stated that the Ohio law was broader than the Kentucky rule and emphasized that Kentucky’s interest in preserving public confidence in the honesty and integrity of its judiciary is narrower and “more compelling than Ohio’s purported interest in protecting voters in other elected races from misinformation.”

However much or however little truth-bending the public has come to expect from candidates for political jobs, “[j]udges are not politicians,” and a “State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” . . . Kentucky has a “vital state interest” in safeguarding the public’s confidence in the honesty of its judiciary, . . . and the State’s ban on materially false statements by judicial candidates survives strict scrutiny — at least facially.

Misleading statements
Reviewing the recommendation of the Judicial Tenure Commission that a judge be suspended without pay for 90 days for misleading ads during his election campaign, the Michigan Supreme Court considered a provision then in its code providing that a judicial candidate “should not use or participate in the use of any form of public communication that the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading, or which is likely to create an unjustified expectation about results the candidate can achieve.” In re Chmura, 608 N.W.2d 31 (Michigan 2000).  The Court acknowledged that the canon serves the compelling state interests of preventing fraud and libel, preserving the integrity of the election process from distortions caused by false statements, and preserving the integrity of and public confidence in the judiciary. However, concluding that, to avoid the risk of discipline, a judicial candidate would merely state academic credentials, professional experience, and endorsements received, the Court found that the canon precludes meaningful debate concerning the overall direction of the courts and the role of individual judges in contributing to that direction, impeding the public’s ability to influence the direction of the courts through the electoral process. The Court narrowed the canon to provide that a candidate for judicial office “should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false,” which, it stated, was an objective standard.

The Alabama Supreme Court noted that the state has a compelling interest in protecting the integrity of the judiciary but concluded that language then in its code prohibiting the dissemination of “true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person” was “unconstitutionally overbroad because it has the plain effect of chilling legitimate First Amendment rights.” Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001). The Court narrowed the canon to provide that a candidate for judicial office shall not disseminate demonstrably false information concerning a judicial candidate or an opponent with actual malice — that is, with knowledge that it is false or with reckless disregard of whether it is false.

In 2002, the U.S. Court of Appeals for the 11th Circuit held unconstitutional a Georgia canon prohibiting a judicial candidate from using or participating “in the use of any form of public communication which the candidate knows or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the communication considered as a whole not materially misleading or which is likely to create an unjustified expectation about results the candidate can achieve.” Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002).   The Court concluded that the challenged speech restriction does not afford the requisite “breathing space” to protected speech because the “chilling effect of . . . absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns.” The Court held that “to be narrowly tailored, restrictions on candidate speech during political campaigns must be limited to false statements that are made with knowledge of falsity or with reckless disregard as to whether the statement is false — i.e, an actual malice standard.”

Although it upheld the ban on false statements, the 6th Circuit held that the “ban on misleading statements fails across the board.” Winter v. Wolnitzek, Opinion (U.S. Court of Appeals for the 6th Circuit August 24, 2016) (http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0206p-06.pdf).  It explained:

If “misleading” adds anything to “false,” it is to include statements that, while technically true or ambiguous, create false implications or give rise to false inferences. But only a ban on conscious falsehoods satisfies strict scrutiny. . . . Unknowing lies do not undermine the integrity of the judiciary in the same way that knowing lies do, and the ability of an opponent to correct a misstatement “more than offsets the danger of a misinformed electorate.” This clause adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment.

Similarly, the Ohio Supreme Court held that a clause “prohibiting the dissemination of information that ‘if true,’ ‘would be deceiving or misleading to a reasonable person’ is unconstitutional because it chills the exercise of legitimate First Amendment rights.”  In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014). It stated:

This portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners. The language requires candidates to “attempt to determine whether a reasonable person would view their speech as somehow misleading or deceptive.” . . . As a result, candidates will often choose to avoid adverse action by remaining silent even when they have good reason to believe that what they want to say is truthful.

Severing the unconstitutional clause, the Court narrowed the rule to prohibit a candidate for judicial office from posting, publishing, broadcasting, transmitting, circulating, or distributing “information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false.”

That candidate won her campaign for the Court of Appeals and then wanted to use the term “Judge” in her campaign for the Ohio Supreme Court. She, therefore, challenged in federal court a comment to the Ohio code that states a sitting judge who is a candidate for a judicial office other than the court on which he or she currently serves shall not use the title “judge” without identifying the court on which the judge currently serves. Those defending the code argued her proposed phrases (such as “Elect Judge O’Toole to the Ohio Supreme Court”) were misleading. A federal district court agreed that voters could be misled but concluded that the examples do not represent false speech or even obviously misleading, speech and held that prohibiting true but misleading speech restricts more speech than is necessary to achieve the government’s aims.  O’Toole v. O’Connor, 2016 U.S. Dist. LEXIS 109923 (August 18, 2016). (It did not grant judgment for the plaintiff but invited a motion for judgment on the pleadings.)

 

Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)

The next several posts will be excerpts from a paper prepared by the National Center for State Courts.  NCSC gave permission to reprint this article.  Please let me know if you would like a copy.

Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)

In the 2002 decision, Republican Party of Minnesota v. White, the United States Supreme  Court held unconstitutional a clause in the Minnesota code of judicial conduct that  prohibited judicial candidates from announcing their views on disputed legal and political issues. Since that decision, numerous lawsuits have been filed in federal courts challenging restrictions on campaign and political conduct by judges and judicial candidates, and judges have raised constitutional challenges in judicial discipline proceedings. Following is an analysis of the decisions that have reached the merits (many have been dismissed on justicibility grounds) in challenges to the pledges, promises, and commitments clause; the personal solicitation clause; the endorsement clause; restrictions on partisan political activities; and the disqualification requirement.

Pledges, promises, and commitments
There are 2 versions of the pledges, promises, and commitments clause. Canon 3A(3)(d) of the 1990 American Bar Association Model Code of Judicial Conduct provided that “a candidate for a judicial office shall not (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” After the decision in White, the ABA amended the model code to provide that judicial candidates shall not in connection “with cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” The substantive change was the elimination of the “appear to commit” clause in the latter version. When the model code was revised and reformatted in 2007, the pledges, promises, and commitments clause became Rule 4.1A(13).

Challenges to the pledges, promises, and commitments clause arose in the context of whether judicial candidates may answer questionnaires distributed by special interest groups. For example, the questionnaire from the North Dakota Family Alliance asked candidates to indicate whether they agreed with, disagreed with, were undecided about, or refused to respond to the statement, “I believe that the North Dakota Constitution does not recognize a right to abortion.” The cover letter with the questionnaire instructed candidates: “Your responses indicate your current view on the legal issues and do not constitute any pledge, promise, or commitment to rule in any particular way if the legal issue involved comes before you for decision.”

2 federal district courts, sitting in Kentucky and North Dakota, have declared the 1990 version of the pledges, promises, and commitments clause unconstitutional, holding that the state was simply using the clause “as a de facto announce clause” [Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (Eastern District of Kentucky 2004) (preliminary injunction)] and there was “little, if any, distinction” between the clause and the announce clause [North Dakota Family Alliance v. Bader, 361 F. Supp. 2d 1021 (District of North Dakota 2005)].

The 7th Circuit, reviewing a challenge to the Indiana code, and 2 federal district courts, sitting in Pennsylvania and Wisconsin, have upheld the pledges, promises, and commitments clause as narrowly construed to allow judicial candidates to answer questionnaires.

A federal district court in Indiana originally enjoined enforcement of the pledges, promises, and commitments clause but vacated the injunction after the Indiana Supreme Court adopted a version that did not prohibit statements that “appear to commit” candidates. Affirming that decision on appeal in Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011), the 7th Circuit stated:

It is not clear to us that any speech covered by the commits clauses is constitutionally protected, as White I understands the first amendment. How could it be permissible to “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office”? . . .

The 7th Circuit acknowledged that “neither the commits clauses nor the Code’s definitions pin . . . down” what promises are inconsistent with the impartial performance of the adjudicative duties of judicial office, noting that “the principle is clear only in these extremes.” However, the 7th Circuit concluded that advisory opinions are a more appropriate method for clarifying the provision than summary condemnation by a federal court, stating “when a statute is accompanied by an administrative system that can flesh out details, the due process clause permits those details to be left to that system.”

In Pennsylvania Family Institute v. Celluci, 521 F. Supp. 2d 351 (Eastern District of Pennsylvania 2007), the defendants (members of the Judicial Conduct Board and the Office of Disciplinary Counsel) had proffered an interpretation of the clause that prohibited a candidate only from making pledges, promises, or commitments to decide an issue or a case in a particular way and that allowed a candidate to answer the questionnaires sent out by the Pennsylvania Family Institute. Agreeing that that interpretation was reasonable, the federal district court concluded, “it is hard to imagine a restriction more narrowly tailored to Pennsylvania’s compelling interest in protecting the due process rights of future litigants.”

In Duwe v. Alexander, 490 F. Supp. 2d 968 (Western District of Wisconsin 2007), the federal district court held that the pledges, promises, and commitments clause did not prohibit judicial candidates from responding to a questionnaire from Wisconsin Right to Life and was not unconstitutional on its face. The court stated, “whether a statement is a pledge, promise or commitment is objectively discernable,” and “people are practiced in recognizing the difference between an opinion and a commitment.”

After a preliminary injunction enjoining enforcement of the commitments clause in 2004, the Kentucky Supreme Court adopted a revised version that provided: “A judge or candidate for election to judicial office . . . shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court.” In Carey v. Wolnitzek, 614 F.3d 189 (6th Circuit 2010), a suit challenging the new version, the 6th Circuit held that the amended clause was constitutional insofar as it applies to cases or controversies.

By preventing candidates from making “statement[s]” that “commit[]” them “to rule a certain way in a case [or] controversy,” the clause secures a basic objective of the judiciary, one so basic that due process requires it: that litigants have a right to air their disputes before judges who have not committed to rule against them before the opening brief is read. Whatever else a fair adjudication requires, it demands that judges decide cases based on the law and facts before them, not based on “express . . . commitments that they may have made to their campaign supporters.”

However, the Court stated the clause’s application to issues was materially ambiguous, requiring a remand to the district court. In December 2010, the Kentucky Supreme Court amended the code to adopt the 2007 model code version of the commits clause and related comments.

The 6th Circuit upheld that version. The Court noted that “no one questions that Kentucky may prohibit judges from making commitments to decide specific cases in a certain way” but that the canon does more by also forbidding a judge from making a promise with respect to “issues.” The Court stated that the phrase “inconsistent with the impartial performance of the adjudicative duties of judicial office” “does much to fix the clause’s ‘serious level-of-generality problem,’” by allowing commitments on stare decisis, on the rule of law, on textualism, and so on. The Court acknowledged there was something to the plaintiff’s argument that that narrowing language makes clause unconstitutionally vague because it is impossible to know “what is (and what is not) an issue-based commitment that is inconsistent with the impartial performance of the adjudicative duties of judicial office.’” However, out of “respect for a co-equal sovereign,” it assumed that Kentucky “’will act sensibly and resolve the open questions in a way that honors candidates’ rights under the first amendment’” and decided to “wait and see” if the Commonwealth’s “process [] yields greater certainty” and firmer constitutionality.
Since White, state courts and judicial discipline commissions have enforced the pledges, promises, and commitments clause. Rejecting a First Amendment challenge based on White, the New York Court of Appeals censured a judge for pro-prosecutorial rhetoric in his campaign statements.

[Footnote – In the Matter of Watson, 794 N.E.2d 1 (New York 2003). See also In the Matter of Chan, Determination (New York State Commission on Judicial Conduct November 17, 2009) (www.cjc.ny.gov) (agreed admonishment for, in addition to other misconduct, campaign literature that displayed pro-tenant bias); In re McGrath, Determination (New York State Commission on Judicial Conduct February 5, 2010) (www.cjc.ny.gov) (agreed admonishment for, in addition to other misconduct, campaign letter that displayed bias in favor of pistol permit holders).]

Assuming strict scrutiny analysis was appropriate, the Court noted that the pledges or promises prohibition is not a blanket ban because “a judicial candidate may promise future conduct provided such conduct is not inconsistent with the faithful and impartial performance of judicial duties” and “most statements identifying a point of view will not implicate the ‘pledges or promises’ prohibition.” The Court stated that the rule “precludes only those statements of intention that single out a party or class of litigants for special treatment, be it favorable or unfavorable, or convey that the candidate will behave in a manner inconsistent with the faithful and impartial performance of judicial duties if elected.” The Court held that the pledges and promises provision “furthers the State’s interest in preventing party bias and promoting openmindedness, and the appearance of either, because it prohibits a judicial candidate from making promises that compromise the candidate’s ability to behave impartially, or to be perceived as unbiased and openminded by the public, once on the bench.”

Similarly, reprimanding and fining a judge for pro-prosecutorial statements and misrepresentations about her opponent’s judicial action during her election campaign, the Florida Supreme Court rejected her constitutional challenge to the pledges and promises clause.   Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida), cert. denied, 540 U.S. 825 (2003).  The court stated that “it is beyond dispute” that the clause serves a compelling state interest and held that the restraints were narrowly tailored to protect the state’s compelling interests without unnecessarily prohibiting protected speech, noting that “a candidate may state his or her personal views, even on disputed issues” but that “to ensure that the voters understand a judge’s duty to uphold the constitution and laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law.”

 

Special Committee Opinion 2018-13

2018-13 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion on the specific disclaimer wording to be used for each of the following potential circumstances:

1. Newspaper advertising spots (i.e., banner ads) pre-paid by a company to promote their own business. One or more of the pre-paid ad spots are offered to the committee of a judicial candidate, at no charge by the company. The ad graphic would be provided by the committee and approved by the candidate.

2. Privately owned billboard to promote the owner’s business. The billboard is offered to the committee of a judicial candidate, at no charge by the owner, to place ads provided by the committee and approved by the candidate.

3. An individual requests to make payment directly to a company for ad space (print or radio). The content would be provided by the committee of a judicial candidate and approved by the candidate.

Mississippi Code Annotated section 23-15-1025 provides:

Distribution of campaign materials.
If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate’s approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. . . . Any person, who violates the provisions of this section, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of One Thousand Dollars ($ 1,000.00) or by imprisonment for six (6) months or both fine and imprisonment.

(Emphasis added).

The Special Committee is of the opinion that in each scenario you have given the materials should state that the material “has been submitted to and approved by the candidate.”

Although not included in the request for an opinion, the Special Committee would advise that the cost or value of the advertisements provided for the benefit of a judicial candidate would need to be reported by the candidate’s campaign committee as an “in-kind” contribution or by the individual or entity that paid for or provided the advertisements as an expenditure on behalf of a candidate. We refer you to the Secretary of State and the statutes on reporting of campaign contributions and expenditures.
________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion 2018-012

2018-12 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion on the following issue:

1. Can a judicial candidate have a fundraising event for campaign contributions where the invitation indicates that the Democratic or Republican nominee for Congress will be the special guest?

Response: A candidate for judicial office is not allowed to solicit campaign contributions. See Williams–Yulee v. Fla. Bar, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). Also, Canon 5(C)(2) Mississippi Code of Judicial Conduct provides that:

A candidate shall not personally solicit or accept campaign contributions . . . . A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate . . . . Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate’s campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers.”

The Special Committee finds no rule or law that prohibits a candidate’s committee from having a fundraising event that indicates a Democratic or Republican nominee for Congress as the special guest.

2. Can a non-judicial candidate from another election endorse a judicial candidate?

Response: It is permissible for a non-judicial candidate from another election to endorse a judicial candidate. Mississippi Code Annotated section 23-15-976 provides:

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation. The Legislature finds that in order to ensure that campaigns for nonpartisan judicial office remain nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party shall not engage in fund-raising on behalf of a candidate or officeholder of a nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party make any contribution to a candidate for nonpartisan judicial office or the political committee of a candidate for nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party publicly endorse any candidate for nonpartisan judicial office. No candidate or candidate’s political committee for nonpartisan judicial office shall accept a contribution from a political party or any committee or political committee affiliated with a political party.

In Mississippi Republican Party v. Musgrove, 3:02CV1578WS (S.D. Miss. 2002), the Mississippi Republican Party State Executive Committee brought a declaratory judgment action against the State of Mississippi to declare that Mississippi’s statutory prohibition on political parties endorsing or contributing to the campaigns of judicial candidates violates the freedom of political speech guaranteed by the United States Constitution and the Mississippi Constitution of 1890. Judge Henry Wingate ruled:

Mississippi Code Annotated§ 23-15-976 . . . with the exception of the first sentence stating “[a] judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation,” is hereby declared vocative of the First and Fourteenth Amendments to the Constitution of the United States.

The Special Committee is aware of no other rule or law that would prohibit a non-judicial candidate from endorsing a judicial candidate.
________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion 2018-11

2018-11 Opinion

On July 9, 2018, the Special Committee on Judicial Election Campaign Intervention released Opinion 2018-06. Thereafter, a complaint was filed against judicial candidate [Candidate C] and the Committee to Elect [Candidate C]. This Complaint alleges that the Candidate and the Committee are in direct violation of Opinion 2018-06 and makes  several new claims.

The Candidate and the Committee, through counsel, have responded to the complaint. The Candidate and the Committee have requested a hearing and asked that the Special Committee send this matter to the Commission on Judicial Performance. The Special Committee has denied these requests.

In response to the allegations in the Complaint, the Special Committee finds as follows:

1. The Complaint alleges that the Committee to Elect [Candidate C]’s website ([Candidate C]forjudge.com – updated after the Committee’s opinion on July 9, 2018) under “Meet [Candidate C],” includes a statement in bold and large font, “I am the only candidate with judicial experience” and “I have what no other candidate has – actual court experience as a youth court judge.” The Complaint claims this is in direct violation of Opinion 2018-06 because the candidate and/or candidate’s committee continues to represent that [Candidate C] served as a “Judge” not “Referee.”

Finding. The Special Committee has reviewed the website. Under the “Meet [Candidate C]” tab, the Special Committee does not find the statement – “I have what no other candidate has – actual court experience as a youth court judge.” Instead, the Special Committee’s review finds that the statement – “I have what no other candidate has – actual court experience as a youth court referee.” The Special Committee is of the opinion that the Candidate has complied with Opinion 2018-06.

Next, the Special Committee has reviewed the statement – “I am the only candidate with judicial experience.” In Opinion 2018-06, the Special Committee recognized the distinction between a Youth Court “Judge” and a “Referee.”[Footnote 1].  Here, the Candidate has served and continues to serve as a appointed Youth Court “Referee.” The Special Committee has recognized that a “Referee” is statutorily authorized to perform certain judicial functions.  Therefore, the Special Committee is of the opinion that the Candidate’s statement – “I am the only candidate with judicial experience” is accurate, truthful, not misleading, and therefore is permissible. The Candidate may state that she has “judicial experience” so long as the campaign material – here the website – clearly identifies the circumstances justifying the Candidate’s “judicial experience.” On the website, the Candidate identified the proper title of the positions she actually held that justifies her use of the term “judicial experience. The Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the  Mississippi Code of Judicial Conduct.

[Footnote 1 — The position of Youth Court “Referee” is created by statute. The Mississippi  Legislature  used the title “referee” and “judge” to indicate separate positions.  Mississippi  Code  Annotated section § 43-21-111 is the statutory authority for a “Referee.” The Legislature chose to give the “referee” authority that is “judicial” in  nature. For example, subparagraph (1) allows the county court judge to appoint a “referee.”  Subparagraph (2) requires the “referee” receive judicial training.  Subparagraph (3) provides that “[t]he judge may direct that hearings in any case or class of cases be conducted in the first instance by the referee. The judge may also delegate his own administrative responsibilities to the referee.” Subparagraph (4) provides that “[a]ll hearings authorized to be heard by a referee shall proceed in the same manner as  hearings before the youth court judge. A referee shall possess all powers and perform all the duties of the youth court judge in the hearings authorized to be heard by the referee.” (Emphasis added). Subparagraph (5) provides that the “order entered by the referee” may be subject to “rehearing by the judge.” Subparagraph (6) provides that “[t]he salary for the referee shall be fixed on order of the judge.” Subparagraph (7)  allows for two counties to agree for the chancellor to “appoint a suitable person as referee.”]

2. The Complaint alleges that the Committee to Elect [Candidate C]’s website ([Candidate C]forjudge.com – updated after the Committee’s opinion on July 9, 2018) under the “Home” tab, now has a statement in bold and large font stating “The Only Candidate with Judicial Experience.” The Complaint contends this is in direct violation of Opinion 2018-06 for the same reason set forth above.

Finding. As stated above, the Special Committee has opined that a Youth Court “Referee” may claim to have “judicial experience,” so long as the campaign material – here the website – clearly identifies the circumstances justifying the Candidate’s “judicial experience.” The Candidate identified the proper title of the position actually held that justifies her use of the term “judicial experience. The Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the Mississippi Code of Judicial Conduct.

3. The Complaint alleges that the website ([Candidate C]forjudge.com) still contains two photos of [Candidate C] in a judicial robe. One may be found under the “About [Candidate C]” tab and one can be found on the home page. The Complaint contends this is in direct violation Opinion 2018-06.

Finding. In Opinion 2018-06, the Special Committee found that it is a violation of
Canon 5A(3)(d)(iii) for a candidate who has served as a Youth Court “Referee” to depict
themself in a judicial robe, “without a clear explanation of the judicial roles of the
positions held.”

The Special Committee has reviewed the website. The website includes two pictures of the Candidate in a judicial robe. There is a caption under each photograph that states,  “[Candidate C] Serving as Youth Court Referee in Hancock County.” The Special  Committee is of the opinion that the Candidate has complied with Canon 5A(3)(d)(iii), because the caption under the photograph provides a “a clear explanation of the judicial roles of the positions held.” The Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the Mississippi Code of Judicial Conduct.

4. The Complaint asserts that the Committee to Elect [Candidate C] ran an ad in the July-August 2018 Gulf Coast Women’s Magazine wherein it was stated that she had “six years experience as a Youth Court Judge.” A copy of said advertisement was attached. The Complaint also stated that the complainant understands that this must have gone to press before Opinion 2018-06 was released but would request an official retraction be run in the next available printing of the magazine and would further request that any reprimand released to the local media pursuant to Canon 5F(3)(e)(i-ii) be forwarded to Gulf Coast Women’s Magazine as well for publication.

Finding. As stated in the allegation, the Special Committee does not have sufficient facts or evidence to find that the Candidate or the Committee did not comply with Opinion 2018-06 in the advertisement in the July-August 2018 Gulf Coast Women’s Magazine. Also, the Special Committee has no reason to believe that the Candidate or the Committee will not comply with Opinion 2018-06 or this Opinion in future advertisements. The Special Committee does not have the authority to request or order a retraction. The Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the Mississippi Code of Judicial Conduct.

5. The Complaint also asserts that Gulf Coast Women’s Magazine has recognized “Top Influencers” in the community and has named [Candidate C] as one. The magazine has a picture of [Candidate C] on page 120 of the July-August 2018 edition wherein it is stated again that [Candidate C] served as the _______ County Youth Court Judge.  A copy of the page was attached to the Complaint. The Complaint also stated that it is understood that this went to press before Opinion 2018-06 was released, but the undersigned would request an official retraction be run in the next available printing of the magazine and would further request that any reprimand released to the local media pursuant to Canon 5F(3)(e)(i-ii) be forwarded to Gulf Coast Women’s Magazine as well for publication.

Finding. For the same reasons discussed above, the Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the Mississippi Code of Judicial Conduct.

6. The Complaint asserts that the Gulf Coast Women’s Magazine is hosting their 4th Annual Success Women Conference on September 20 -21, 2018. It is understood that some nominees will be able to make speeches, so the undersigned would request that [Candidate C] be enjoined from making any mention of serving as a “Judge” at said conference whether during an official speech or in casual meetings.

Finding. For the same reasons discussed above, the Special Committee is of the opinion that there is no violation of Opinion 2018-06 or the Mississippi Code of Judicial Conduct.
________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:
Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277

Special Committee Opinion 2018-10

2018-10 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion on the following issue:

Troy Odom is a candidate for Chancery Judge in Rankin County. He is the former Chairman of the Rankin County Republican Party Executive Committee. He resigned from that position prior to qualifying to run for Rankin County Chancery Court Judge. He has asked for an opinion to know whether he can state on campaign literature that he is the “Former Chairman of the Rankin County GOP Executive Committee.”

ANALYSIS

Canon 5C(1) of the Code of Judicial Conduct provides that “Judges holding an office filled by public election between competing candidates . . . may, only insofar as permitted by law, . . . identify themselves as members of political parties . . . .”  Mississippi Code Annotated section 23-15-976 provides:

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation. The Legislature finds that in order to ensure that campaigns for nonpartisan judicial office remain nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party shall not engage in fund-raising on behalf of a candidate or officeholder of a nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party make any contribution to a candidate for nonpartisan judicial office or the political committee of a candidate for nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party publicly endorse any candidate for nonpartisan judicial office. No candidate or candidate’s political committee for nonpartisan judicial office shall accept a contribution from a political party or any committee or political committee affiliated with a political party.

In Mississippi Republican Party v. Musgrove, 3:02CV1578WS (S.D. Miss. 2002), the Mississippi Republican Party State Executive Committee brought a declaratory judgment action against the State of Mississippi. This action challenged a portion of section 23-15-976. The court was asked to declare Mississippi’s statutory prohibition on political parties endorsing or contributing to the campaigns of judicial candidates unconstitutional, in violation of the freedom of political speech guaranteed by the United States Constitution and the Mississippi Constitution of 1890. Judge Henry Wingate ruled:

Mississippi Code Annotated§ 23-15-976 . . . with the exception of the first sentence stating “[a] judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation,” is hereby declared vocative of the First and Fourteenth Amendments to the Constitution of the United States.

The United States Supreme Court has decided several cases that involve issues about judicial elections. See Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002); Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2259, 173 L.Ed.2d 1208 (2009); and Williams–Yulee v. Fla. Bar, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). None of these cases  considered the questions presented here.

However, several federal appellate courts have held unconstitutional state restrictions that prohibit judges and candidates from identifying themselves as members of a political party. See Carey v. Wolnitzek, 614 F.3d 189 (6th Circuit 2010); Winter v. Wolnitzek, 834 F.3d 681, 689 (6th Cir. 2016); Siefert v. Alexander, 608 F.3d 974 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011); and Republican Party of Minnesota v. White, 416 F.3d 738 (8th Circuit 2005), cert. denied, Dimick v. Republican Party of Minnesota, 546 U.S. 1157 (2006).

The Special Committee on Judicial Election Campaign Intervention is of the opinion that  the Candidate may include in campaign materials the statement that he is the “Former Chairman of the Rankin County GOP Executive Committee.” While this statement refers to a political party, it is a true and accurate statement of a position that the Candidate previously held. It may be used in campaign materials to show the experience and community service of the Candidate. Thus, the Special Committee is of the opinion that the use of this information in the Candidate’s campaign materials is not a violation of Mississippi Code Annotated section 23-15-976 as “campaigning . . . based on party affiliation” or the Mississippi Code of Judicial Conduct.

The vote of the Special Committee was 3 members in favor of this opinion and 2 members opposed.
__________________________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov