Special Committee Opinion 2018-23

2018-23 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaint filed by Candidate P.

Candidate P has provided a document that purports to be the “Official Sample Democratic Ballot – Hinds County – November 6, 2018.” (A copy of the sample ballot is attached as Exhibit “A”.) The sample ballot marks the preferred candidates for the elections for Senate, House of Representatives, and “Nonpartisan Judicial Races.” The sample ballot also indicates that it was “Paid for by Democratic Candidates,” but does not identify who paid to print or distribute the material.

Candidate P complains that this “official sample ballot” is not in compliance with Mississippi election rules. She argues that the sample ballot constitutes “an alignment with the Democratic party as opposed to an endorsement.” Candidate P also argues that this sample ballot violates various election laws.

In Opinion 2018-12, the Special Committee issued an opinion that determined it was 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 volative of the First and Fourteenth Amendments to the Constitution of the United States.

Based on this ruling, the Special Committee is of the opinion that non-judicial candidates and political parties may endorse judicial candidates.

The Special Committee, however, has reviewed the “Official Sample Democratic Ballot” that was submitted and finds that there may be violations of Mississippi’s campaign laws.

First, if any judicial candidate or the candidate’s committee, pays for the printing or distribution of this “Official Sample Democratic Ballot,” the Special Committee has determined that the judicial candidate and the candidate’s committee would be in violation of Mississippi Code Annotated § 23-15-1025. This statute, titled “Distribution of campaign materials,” provides:

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. If the candidate has not approved the material, the material shall so state. The identity of organizations or committees shall state the names of all officers of the organizations or committees. 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.

Second, the Special Committee has determined that the “Official Sample Democratic Ballot” is considered to be campaign materials and must have a disclosure as required by Mississippi Election laws. Specifically, Mississippi Code Annotated § 23-15-897(2), titled “Certain information to be included in campaign materials . . .,” provides:

No candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information:

(a) The name of the candidate along with a statement that the message is approved by the candidate; or

(b) If the message has not been approved by a specific candidate, the name of the person, political committee or organization paying for the publication of the message; or

(c) If the message has not been approved by the candidate and no person, political committee or organization is identified as having paid for the publication, the entity producing the campaign materials must be identified.

As a result, the Special Committee is of the opinion that the “Official Sample Democratic Ballot” is in violation of section 23-15-897(2) because it does not contain the required disclosure.

Since the Special Committee has determined that the “Official Sample Democratic Ballot” violates sections 23-15-897(2) and 23-15-1025, the Special Committee orders that any person, committee, political party or organization cease and desist the distribution of the “Official Sample Democratic Ballot.”

The Special Committee also finds that any person, committee, political party or organization who has paid for the printing or distribution of the “Official Sample Democratic Ballot” also provides a financial benefit for the judicial candidates that are indicated to be a preferred candidates. This expenditure may be subject to the limitation on contributions under Mississippi Code Annotated § 23-15-1021 and such expenditure should be disclosed as required by Mississippi Code Annotated § 23-15-805.

Committee Member Everett T. Sanders recused from this opinion and did not participate.

________________________________________________________________________
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 2018-22

2018-22 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaint against judicial Candidate N.

The complaint alleged that Candidate N is in violation of Canon 5 of the Code of Judicial Conduct. Specifically, the complaint alleged that Candidate N showcases her father, Judge O, in a television commercial that is being aired on local television stations. In the ad, Judge O is shown in a photograph in his judicial robe and also presiding in the courtroom in his judicial robe. The complaint also alleges that Candidate N has used photographs of Judge O on her push cards and on her campaign website. The complaint also argued, based on information and belief, that Candidate N has requested or allowed Judge O to make phone calls on her behalf asking for donations to benefit her campaign as well as asking for sign placement locations. Further, based on information and belief, Candidate N has requested or has allowed Judge O to attend events with her while she is campaigning.

In response, Candidate N argues that the complaint was filed in bad faith. Candidate N alleges that the complaint was filed by a person who was indicted and had charges pending before Judge O. Candidate N also asserts that the person who filed the complaint is represented by an attorney who filed a motion for Judge O to recuse and supports her opponent. Candidate N argues that the complaint is insufficient and is nothing more than another attempt to harass.

Candidate N admits that Judge O is her father, and her push card includes a photograph with her parents, including Judge O. Further, there is a picture on Facebook of Candidate N and Judge O outside the Secretary of State’s Office on January 2, 2018, the morning she qualified to run. She alleges that this was a momentous event in her life and obviously one her parents wanted to be a part of. She contends that her father’s picture was included in the commercial as part of her education and history. Candidate N admits that the commercial includes a photograph of Judge O in his judicial robe and a courtroom scene where Judge O is seated on the bench but he is in the background and blurred. He does not speak nor does he say anything on Candidate N’s behalf.

Also, Candidate N states that Judge O has attended public community events. She claims that he has neither attended events with her nor campaigned at those events with her. She also claims that she does not know of any specific phone calls Judge O has made or anyone he has asked for donations.

There are several applicable provisions of the Code of Judicial Conduct.

First, Canon 5(A)(1)(b) provides that “a judge or a candidate for election to judicial office shall not . . . publicly endorse a candidate.” The Commentary states “Section 5A(1)(b) does not prohibit judges or judicial candidate from privately expressing their views on judicial candidates or other candidates for public office.”

Second, Canon 5(A)(3)(a) provides that “A candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate.” The Commentary adds:

Although judicial candidates must encourage members of their families to adhere to the same standards of political conduct in support of the candidates that apply to the candidates, family members are free to participate in other political activity. Family members are not prohibited by this subsection from serving on the candidates’ campaign committees and otherwise actively involving themselves in the campaigns.

Third, Canon 5(C)(1) provides that “Judges holding an office filled by public election between competing candidates, or candidates for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings in their own behalf while candidates for election . . . . identify themselves as members of political parties, and contribute to political parties or organizations.” The Commentary adds that “Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections.”

Finally, Canon 5(D) provides that “[a] judge shall not engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.”

The Special Committee finds as follows:

1. As to the allegations of the complaint directed to Judge O, the Special Committee finds that Judge O is an incumbent circuit court judge. As an incumbent judge, who is not up for election, Judge O is prohibited by Canon 5(A)(1)(b) from “publicly endors[ing] a candidate.” Canon 5(A)(3)(a) does not permit Judge O, as an incumbent judge, to publicly endorse another judicial candidate even though the candidate is a family member.

The Special Committee has determined that Judge O is prohibited under Canon 5(D) from engaging in any “political activity.” Although the complaint may allege a violation of the Code of Judicial Conduct by Judge O, the Special Committee is of the opinion that it has no jurisdiction as to Judge O. The Special Committee requests Judge O to take no further action that could be considered a “public endorsement” of a candidate, subject to the conduct permissible under Canon 5(A)(1)(b).

The Special Committee does not find sufficient evidence that supports the allegation that Judge O has made phone calls on Candidate N’s behalf asking for donations. Thus, the Special Committee dismisses this allegation.

The Special Committee does not find sufficient evidence that supports the allegation that Judge has violated the Code of Judicial Conduct by asking for placement of sign locations or for improperly attending events on Candidate N’s behalf. Thus, the Special Committee dismisses these allegations.

2. As to the allegations of the Complaint directed to Candidate N, the Special Committee is of the opinion that the Code of Judicial Conduct does not allow Judge O, as an incumbent judge, to engage in political activity. Candidate N and her Committee are prohibited, under Canon 5(A)(1)(b), from using Judge O’s photograph or image, while he wearing a judicial robe, in campaign materials. This would be an improper public endorsement by an incumbent judge. Therefore, the Special Committee instructs Candidate N and her Committee to cease and desist the use of Judge O’s photograph or image, while wearing a judicial robe, in any campaign materials.

The Special Committee is further of the opinion that Candidate N and her Committee may use Judge O’s photograph or image in campaign materials provided he is not wearing a judicial robe and there is no indication that he is an incumbent judge.

Committee Member Thomas A. Wicker recused from this opinion and did not participate.

________________________________________________________________________
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 2018-21

2018-21 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion from a Candidate.

The Candidate provided a document identified as “Questions for Political Candidates.” He adds that the candidates for Chancery Court Judge and County Court Judge in Lamar County were asked to attend meeting of the American Christians Taking a Stand for Jesus Christ (ACTS) at Lamar Christian School on October 8, 2018. Each candidate was requested to complete this form, sign it, and return it to the organizers of this event. Several of the candidates expressed concern that the questions might violate certain provisions of the Code of Judicial Conduct, Canon 5. We were later informed that ACTS intends to distribute the answers of the various judicial candidates to local pastors, who will give each candidate a “spiritual grade”, and publish that grade on their website.

The Candidate asked for an opinion as to whether any or all of the questions violate the Code of Judicial Conduct.

QUESTIONS FOR POLITICAL CANDIDATES:

1. Where do you go to church? The Special Committee is aware of no Mississippi Statute or Canon in the Mississippi Code of Judicial Conduct that would not permit a candidate to answer this question.

2. Do you go to church faithfully? See Response to Question 1 above.

3. What is your pastor’s name? See Response to Question 1 above.

4. Are you a born again Christian? See Response to Question 1 above.

5. Should you consider the Bible in government policy? See Response to Question 1 above.

6. Do you vote with these same biblical convictions? See Response to Question 1 above.

7. Should faith play a role in government? See Response to Question 1 above.

8. Would you ever vote for a bill to fund or support abortion? This question does not appear to be directed at judicial candidates because judges do not vote on bills to fund anything.

9. Do you think the government has a role in marriage? If so, do you believe same sex marriage should be allowed? The Special Committee would direct you to Mississippi Code of Judical Conduct Canon 5(A)(3)(d), which provides

(d) A candidate for 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;

(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; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

Commentary

Section 5A(3)(d)(i) prohibits a candidate for judicial office making pledges or promises to decide cases in any particular way and statements committing the candidate with respect to cases, controversies or issues likely to come before the court on which the candidate will serve if elected. This section does not prohibit or limit a candidate’s freedom to announce the candidate’s current views on issues so long as the announcement does not bind the candidate to maintain those views after election. See Republican Party of Minn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictions in the Minnesota Code of Judicial Conduct on the announcement of views on legal and political issues.) The comparable offending language, referred to as the “announce clause”, formerly appeared in our Code of Judicial Conduct, but was removed with the revision of the code on April 4, 2002. This Section does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties.

Section 5A(3)(d)(ii) prohibits a candidate for judicial office making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of the candidate’s personal views. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges and promises respecting improvements in court administration.

Section 5A(3)(d) applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrases such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,” “pro-life,” “pro-choice,” or in any similar characterizations suggesting personal views on issues which may come before the courts, when applied to the candidate or an opponent, may be considered to be prohibited by Section 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner.

As discussed in the Commentary, the Mississippi Supreme Court has recognized Republican Party of Minn. v. White, 536 U.S. 765 (2002). Further, the Special Committee is aware of decisions from the United States Supreme Court, federal circuit courts of appeal and federal district courts that have specifically addressed the constitutionality of the “announce clause” and restrictions on a candidate’s First Amendment freedom of speech rights. There are federal decisions that are in conflict with the Canon 5(A)(3)(d).

However, the Mississippi Supreme Court, with knowledge of these decisions, has not revised the Mississippi Code of Judicial Conduct. And, to the knowledge of the Special Committee, there has been no legal challenge to this provision in Mississippi’s federal courts.

The Special Committee is of the opinion that it has neither the jurisdiction nor the authority to conclude that the Mississippi Code of Judicial Conduct, specifically Canon 5(A)(3)(d) is unconstitutional or may not be enforced in Mississippi elections. Therefore, the Special Committee is of the opinion that this question may violate Canon 5(A)(3)(d).

10. What is your view on separation of church and state? See Response to Question 9 above.

11. What is your stand on the 2nd Amendment- the right to bear arms? See Response to Question 9 above.

12. What is your stand on legalizing marijuana or any other illegal drug? See Response to Question 9 above.

13. What is your stand on assisted suicide? See Response to Question 9 above.

14. Do you support, or did you support, House Bill 1523? See Response to Question 9 above.

15. Can you do the job? See Response to Question 1 above.

Special Committee Opinion 2018-20

2018-20 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaint filed by Candidate G against Candidate F.

The Committee to Elect F Judge is responsible for a radio ad that states:

False and misleading! A state’s special committee on judicial elections found [Candidate G] to be intentionally dishonest. Why trust criminal defense attorney [Candidate G]? In [Candidate F]’s courtroom there has never been a ban on prayer. False campaigning through [Candidate G], maybe in Washington, but not tolerated in _____ County. Why is he being intentionally dishonest? Is it because he lacks the relevant experience to be a judge? Vote to keep our Judge [Candidate F]. Appointed by Governor Phil Bryant as circuit court judge. Elected by _____ County three times, because of her honesty, integrity and experience. Paid for by the Committee to Elect [Candidate F] Judge, candidate approved.

In response to a complaint filed by [Candidate F], the Special Committee issued opinion 2018-15. The Special Committee concluded:

As to the comparison chart, Candidate [F] provided information to the Special Committee and Candidate [G] that shows her correct information. The Special Committee agrees that Candidate [G] should include the updated and correct information as provided by Candidate [F] and that Candidate [G] should not use the prior comparison chart and shall cease and desist from distributing information that is incorrect.

However, in the review of the information provided, the Special Committee finds that the use of the term “Years Practicing Law” should include year(s) Candidate [F] practiced law privately or in government service. Also, under “Courtroom Experience, the information should include Candidate [F]’s years of service as a circuit court judge. As to the remainder of the comparison chart, the Special Committee has no information to suggest such information is not true and correct.

Further, the Special Committee is of the opinion that it is a misrepresentation for Candidate [G] to use the statement “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18.” Candidate [F] has not confirmed the “facts” in the comparison chart as they pertain to Candidate [G]. As a result, the Special Committee instructs Candidate [G] to cease and desist the use of the phrase “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18” on campaign literature.

In Opinion 2018-15, the Special Committee did not find Candidate [G] “knowingly misrepresented” Candidate [F]’s qualification or that his campaign materials were “intentionally dishonest.”

The Special Committee is of the opinion that Candidate [F]’s radio ad that states that “[a] state’s special committee on judicial elections found [Candidate G] to be intentionally dishonest” is in fact false and misleading. The Special Committee directs Candidate F and the Committee to Elect [Candidate F] to cease and desist the use of this radio ad.

Special Committee Opinion 2018-19

Opinion 2018-19

The Special Committee on Judicial Election Campaign Intervention received complaint against Candidate K.

According to the complaint, the Committee for Candidate K is in violation of Canon 5 as a result of a “Meet & Greet” event. The complaint makes the following allegations:

1. Candidate K is taking an active role and inviting people and to which she will be attending.

2. Candidate K’s Committee is advertising this event to a large number of people on Facebook. The advertisement announces that the “Honored Guest” is Governor Phil Bryant.

A. This is a candidate aligning with a political figure and then paying money, using campaign funds, to advertise that alignment to the general public.

B. Governor Bryant’s office does not seem to have the event on the governor’s calendar. Candidate K’s opponent claims that they had someone confirm this with the Governor’s office. The complaining party alleges that he Committee “is just using the Governor’s name for political gain, to give the appearance that he is supporting this particular candidate, without his consent. [T]his is very misleading and should also be considered a violation of the rules.

The first allegation claims that Candidate K is in violation of Canon 5(C)(2), which provides that “A candidate shall not personally solicit or accept campaign contributions . . . .” The complaint argues that Candidate K violated this Canon “by taking an active role and inviting people and to which she will be attending.” To support this claim, the complaint includes a copy of the Committee’s Facebook page that announces this event. In a comment, a person posted “I saw your signs in Byram . . . !! So excited for you!” Candidate K responded: “Aww thank you! Please pray for me and God’s will be done. Also I hope you and your hubby will come to our Hal and Mals fundraiser Thursday night. It’s a wonderful chance to meet and greet lots of business folks.”

The Special Committee is of the opinion that Candidate K’s post was not a violation of the personal solicitation rule under Canon 5(C)(2). This allegation is dismissed.

The second allegation has two parts. First, the complaint alleges that this event is in violation of non-partisan judicial elections. In Opinion 2018-12, the Special Committee opined:

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.

Consistent with Opinion 2018-12, the Special Committee is of the opinion that there is no rule or law that prohibits a candidate’s committee from having a fundraising event that indicates an elected official as the special guest. This allegation is dismissed.

Second, the complaint alleges that Governor Bryant’s office did not give his consent to host this event. The only supporting documentation provided is that “someone called” the governor’s office. Without an affidavit as to this information, the Special Committee does not have sufficient evidence to determine whether this allegation is in fact true. In response, Candidate K provides equally unsubstantiated evidence of a copy of a text that purports to be from Governor Bryant that indicates his consent to attend this event. The Special Committee does not sufficient evidence to support this allegation. This allegation is dismissed.

Special Committee Opinion 2018-18

Opinion 2018-18

The Special Committee on Judicial Election Campaign Intervention received a complaint against judicial Candidate J.

The complaint alleges that Candidate J has violated Special Committee Opinion 2018-06. It is alleged that, on July 30, 2018, Candidate J appeared before a circuit court venire and stated that she has served as “Special Youth Court Judge.” In addition, the complaint includes copies of Facebook posts, emails, articles, and campaign materials where Candidate J indicates her experience as a “Special Youth Court Judge.”

In response, Candidate J claims that it was appropriate for her to claim the title as “Special Youth Court Judge.” She cites Miss. Code Ann. § 43-21-113, which provides:

When a judge shall certify in writing that he is unable to serve because of illness or absence from the county or district, the judge may appoint as provided in Section 43-21-123 a special judge to serve in his stead. A special judge shall possess all the powers and perform all the duties of the regular judge. The compensation for the special judge shall be fixed on order of the judge as provided in Section 43-21-123 on the basis of a statement as to the time and expense incurred by the special judge and shall be paid by the county out of any available funds. In the case of recusal, a judge shall be selected as provided by law.

(Emphasis added). Candidate J provided copies of an order by the County Court Judge and the Board of Supervisors’ minutes that indicate her appointment as a “special judge” under this section. She claims that the position of “special judge,” under section 43-21-113, has a different statutory title than that of a “referee,” under section 43-21-111.

Special Committee Opinions 2018-06 and 2018-11 consider whether a judicial candidate who has served as a “referee,” under Miss. Code Ann. § 43-21-111, may refer to themself as a “judge.” The Special Committee opined that a person who served as a “referee” under section 43-21-111 may not refer to themself as a judge.

Based on the information provided to the Special Committee, the Special Committee is of the opinion that Candidate J was appointed as a “special judge” under section 43-21-123. Accordingly, it is appropriate for Candidate J to refer to this a “special youth court judge.” The complaint is dismissed.

Special Committee Opinion 2018-17

Opinion 2018-17

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion as to whether a current municipal judge, who is running for chancery judge, may film a commercial with the Judge in a robe on the bench when court is not in session.

In Opinion 2014-001, the Special Committee determined:

Canon 5A(3)(d)(iii) . . . prohibits a candidate for judicial office from knowingly misrepresenting his/her “qualifications, present position, or other fact concerning the candidate . . . .” The Special Committee has previously opined that a candidate who holds another judicial office may use the title “judge” in campaign literature if the material clearly identifies the circumstances justifying the use of the title and identifies the judgeship currently held. See Special Committee Opinion 2006-002. . . .

All candidates for judicial office are held to a high standard of accuracy in their campaign advertisements. Judicial robes, often used by candidates in judicial campaign materials, are a widely recognized symbol of judicial office. Like the use of the term “judge,” the depiction of a candidate wearing a judicial robe may be misleading in certain circumstances. For example, the depiction of a candidate wearing a robe when he/she currently holds no judicial office and has never held judicial office misrepresents the candidate’s present position and violates Canon 5A(3)(d)(iii). Furthermore, in those instances in which a sitting judge seeks a different judicial office or a former judge seeks judicial office, the depiction of the candidate wearing a judicial robe may also imply that the candidate currently holds the office sought. Therefore, the Special Committee is of the opinion that while a candidate who presently holds or previously held a judicial office may be depicted in campaign materials wearing a judicial robe, the advertisements must also clearly identify the office currently or previously held in an easily readable size and form, such that the materials will not mislead the voter as to the candidate’s present position.

Consistent with the previous ruling, the Special Committee on Judicial Election Campaign Intervention is of the opinion that a current municipal judge, who is running for chancery court judge, may film a commercial that depicts the candidate in a judicial robe if, as required by Canon 5A(3)(d)(iii), the candidate clearly explains the judicial role of the position the candidate held.

This opinion is consistent with Special Committee Opinion 2006-002 and Opinion 2014-001.