Opinion No. 212 (1998)

FACTS: During a political campaign in a judicial election, a candidate produced a campaign brochure including the following material:

  1. statements that the candidate should receive a vote because he or she would "got tough with criminals" or was "tough on crime";
  2. a statement that the candidate should receive a vote because he or she was "an experienced prosecutor for judge";
  3. a statement that the candidate would be a "conservative judge";
  4. a statement criticizing the incumbent's previous, for example, "Judge X was wrong in giving probation to a convicted drug dealer.";
  5. a photograph of the candidate with a recognized office-holder who has not endorsed the candidate in the race.

QUESTION: Does the inclusion of these matters in campaign literature violate the Code of Judicial Conduct?

OPINION: Political campaigns by judges and judicial candidates are governed by Canon 5 of the Code of Judicial Conduct. A judge and judicial candidate may not make statements that indicate an opinion on any issue that may be subject to judicial interpretation, except that discussion of judicial philosophy is appropriate if conducted in a manner which does not suggest to a reasonable person a probable decision on any particular case, Canon 5(l). A judge or judicial candidate may not make pledges or promises of conduct in office other than the fair and impartial performance of the duties, Canon 5(2)(i), and may not knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent, Canon 5(2)(ii). A judge or judicial candidate should also act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A.

The statements contained in 1. ("tough on crime") would not violate Canons 5(2)(i) and 2A. The pledges to be tough with criminals and tough on crime are of such an amorphous nature that they do not define any specific conduct and, therefore, are not violative of Canon 5(2)(i). The Committee also believes the amorphous nature of these phrases prevents them from indicating an opinion an issue subject to judicial interpretation as proscribed in Canon 2A.

Statement 2 ("experienced prosecutor" ) does not violate the Code, assuming that it is a true statement. An accurate discussion of qualifications is permissible, including prior positions held, even though some person reading the statement might conclude that a judge or judicial candidate who had been a prosecutor would be more likely to rule a particular way in certain types of cases.

Statement 3 ("conservative judge") does not violate the Code. Stating that one will be a conservative judge is a statement of judicial philosophy. While it may appear to convey some meaning, the meaning is so complex that it certainly does not suggest a probable decision in any particular type of case.

The fourth statement ("criticizing decision of the incumbent") violates Canons 5(l) and 2A. A statement that criticizes an earlier decision is a violation if the candidate goes beyond a statement of judicial philosophy and implies to a reasonable person that he or she would reach a different decision in a similar type of case.

The fifth inquiry, concerning the use of a photograph in political material of a person or officeholder who has not endorsed the judge or candidate, would be a violation of Canon 5(2)(ii) of the Code. The use of the photograph clearly implies permission or an endorsement. If that. permission or endorsement does not exist, the photograph is a misrepresentation of a fact concerning the candidate and clearly a violation.