Opinion
Delivered October 11, 2001
Per Curiam. On October 1, 2001, the Judicial Discipline and Disability Commission filed a petition with the Supreme Court proposing amendments to Canon 5 and the Application Section of the Arkansas Code of Judicial Conduct. The petition states in part:
With the passage of Amendment 80 to the Arkansas Constitution, all future judicial elections will be nonpartisan. This constitutional amendment necessitated modifications to Canon 5 and the Application section of the Code of Judicial Conduct. To that end, this petition and the accompanying proposed changes to the Code of Judicial Conduct are submitted.
We thank the Commission for its work in reviewing the Code of Judicial Conduct and recommending proposed changes to the Code. Today, we publish the proposal for comment. For ease of reference, all deletions from the current Code of Judicial Conduct have a strike through and all additions have been underlined. The comment period shall end on November 12, 2001. Comments should be submitted in writing to:
Les Steen, Supreme Court Clerk
Justice Building
625 Marshall Street
Little Rock, AR 72201
Attention: Code of Judicial Conduct
CANON 5 A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE
POLITICAL ACTIVITY
A. All Judges and Candidates.
(1) Except as authorized in Sections 5B(2), and 5C(1) and 5C(3) , a judge or a candidate for election or appointment to judicial office shall not:
(a) act as a leader or hold an office in a political organization
(b) publicly endorse or publicly oppose another candidate for public office;(c) make speeches on behalf of a political organization;
(d) attend political gatherings; or seek, accept or use endorsements from a political organization;
(e) solicit funds for, pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions,
(f) publically identify his or her current or past political party membership or lend one's name to a political organization; or
(g) permit the judge's employees and officials subject to the judge's direction and control to be candidates for or hold positions as officers of a political organization's central committee or to be candidates for or hold non-judicial partisan elective offices .
Commentary:
A judge or candidate for judicial office retains the right to participate in the political process as a voter . As an individual, a judge is entitled to his or her personal view on political questions and to rights and opinions as a citizen. However, as a member of Arkansas non-partisan judiciary, a judge judicial candidate must avoid any conduct which associates him or her with a political party .
As Arkansas maintains a partisan primary election process, this provision ensures that a judge or candidate may ask for a ballot in a party's primary or declare a party affiliation for voting purposes without violating ethical standards .
A judge or judicial candidate may pay dues privately to belong to a political organization, only if required by said organization for membership, but this Canon prohibits contributions to such organizations .
Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.
Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization."
Section 5A(1)(b) does not prohibit a judge or judicial candidate from privately expressing his or her views on judicial candidates or other candidates for public office. Former judges and retired judges are encouraged to not publically endorse or publically oppose a candidate for any public office, especially with the use of their former title .
A candidate does not publicly endorse another candidate for public office by having that judicial candidate's name on the same ticket ballot of a political party primary in the section of the ballot designated as a nonpartisan judicial candidate.
Restricting candidates for judicial office from attending and speaking at partisan political gatherings, identifying their membership in a political party and seeking, accepting or using a political party endorsement is necessary for an independent and impartial judiciary and in preserving public confidence in that independence and impartiality .
Judicial elections are nonpartisan and show that judges are impartial and independent. Such elections and those seeking judicial office should do nothing which would create the appearance of any lack of impartiality or independence on the part of the candidate and the Arkansas Judiciary . Thus, no employee or official subject to the judge's direction and control may contemporaneously hold a position as an officer in a political party's central committee or hold a non-judicial partisan elective office. Such a position would cause the perception that there is a special alliance between the non-partisan judge and the political organization with whom the employee is associated. Such employees or officials subject to the judge's direction and control may otherwise engage in political activity.
(2) A judge shall resign from judicial office upon becoming a candidate for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.
(3) A candidate for a judicial office:
(a) 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;
Commentary:
Although a judicial candidate must encourage members of his or her family to adhere to the same standards of political conduct in support of the candidate that apply to the candidate, family members are free to participate in other political activity.
(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of the Canon;
(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;
(d) 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) prohibits a candidate for judicial office from 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 his or her 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 or promises respecting improvements in court administration. Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. This Section 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 Arkansas Rules of Professional Conduct.
(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).
B. Candidates Seeking Appointment to Judicial or Other Governmental Office.
(1) A candidate for appointment to judicial office or a judge seeking other governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy.
(2) A candidate for appointment to judicial office or a judge seeking other governmental office shall not engage in any political activity to secure the appointment except that:
(a) such persons may:
(i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;
(ii) seek non-partisan support or non-partisan endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and
(iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to his or her qualifications for the office;
(b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law;(i) retain an office in a political organization,
(ii) attend political gatherings, and
(iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other functions.Commentary:
Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or appointment to another judicial office or other governmental office may apply for the appointment and seek appropriate support.
Although under Section 5B(2) non-judge candidates seeking appointment to judicial office are permitted during candidacy to retain office in a political organization, attend political gatherings and pay ordinary dues and assessments, they remain subject to other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.C. Judges and Candidates Subject to Public Election.
(1) A judge, or a candidate subject to public election may, except as prohibited by law:(a) at any time
(i) purchase tickets for and attend non-partisan political gatherings;
(ii) privately identify himself or herself as a member of a political party .
(b) when a candidate for election
(i) speak to gatherings , other than gatherings of political organizations , on his or her own behalf and may speak at gatherings of political organizations where all opposing judicial candidates for the same office are invited to speak at the same gathering;
(ii) appear in newspaper, television and other media advertisements supporting his or her candidacy;and
(iii) distribute pamphlets and other promotional campaign literature supporting his or her candidacy;and
(iv) publically oppose other candidates for the same judicial office in a public election in which the judge or judicial candidate is running .Commentary:
Except as specifically provided for, Sections 5C(1) no longer permits judges and judicial candidates subject to election to be involved in limited political activity at any time except as permitted in Section 5D.
To this limited degree, Section 5C(1)(b)(iii) allows a judicial candidate to ask an individual to place a sign supporting the candidate in his or her yard .
Section 5C(1)(b)(iv) means that a judicial candidate may express opposition only to his or her opponent. Judges who are not candidates may not publically endorse or oppose any candidate for judicial office.
Section 5C(1) permits judges subject to election atany time to be involved in limited politicalactivity. Section 5D,applicable solely to incumbentjudges, would otherwise bar this activity.
(2) A candidate shall not personally solicit or accept campaign contributions.or personally solicit publiclystated 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. 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 other than from political organizations for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers.
A candidate's committee may solicit contributions and public support for the candidate's campaign no earlier than 180 days beforeCommentary:a primaryan election and no later than 45 days after the last contested election in which the candidate participates during the election year. Funds received prior to the 180 day limitation or after the 45 day limitation shall be returned to the contributor. If funds are received personally by a judicial candidate, the candidate shall promptly turn them over to the campaign committee. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others. Any campaign fund surplus shall be returned to the contributors or turned over the State Treasurer as provided by law.
Section 5C(2) permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and reasonable financial contributions. At the start of the campaign, the candidate must instruct his or her campaign committees to solicit or accept only contributions that are permitted by law and reasonable under the circumstances. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification under Section 3E. A member of a candidate's immediate family shall not personally solicit or accept financial contributions for the judicial candidates individually or as a member of the judicial candidate's campaign committee .
Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible.
Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.
(3)Except as prohibited by law, a candidate forjudicial office in a public election may permit thecandidate's name: (a) to be listed on electionmaterials along with the names of other candidates forelective public office, and (b) to appear inpromotions of the ticket.
(3) A candidate for judicial office in a public election may not permit the candidate's name to appear in promotions on a political organization's ticket or materials paid for by a political organization. Except as prohibited by law, a candidate's name, picture or other identifying information may be listed in election material sponsored by a nonpartisan organization .
Commentary:
As judicial elections in Arkansas are to be non-partisan , Section 5C(3) no longer provides a limited exception to the restrictions imposed by Section 5A(1). Election material published by a nonpartisan organization, such as the League of Women Voters or a bar association, is unobjectionable .
D. Incumbent Judges. A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law, the legal system or the administration of justice, or (iii) as expressly authorized by law.
Commentary:
Neither Section 5D nor any other section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.
E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates. A successful candidate, whether or not an incumbent, is subject to judicial discipline for his or her campaign conduct; an unsuccessful candidate who is a lawyer is subject to lawyer discipline for his or her campaign conduct. A lawyer who is a candidate for judicial office is subject to Rule 8.2(b) of the Arkansas Rules of Professional Conduct.
F. Filing Requirement. On January 1, 2002, and in all judicial elections thereafter, within ten (10) days after formally announcing or filing as a candidate for election or re-election to any judicial office in this state (whichever is earlier), all judicial candidates, including incumbent judges, shall forward written notice of such candidacy, together with an appropriate mailing address, to the Administrative Office of the Courts. Upon receipt of such notice, the Director shall cause to be distributed to all such candidates by Registered Mail, Return Receipt Requested, copies of the following:(i) Canon 5 of the Code of Judicial Conduct
(ii) Summaries of all previous formal advisory opinions, if any, issued by the Judicial Ethics Advisory Committee which relate in any way to campaign conduct and practices
(iii) The Rules on Campaign Finance Disclosure promulgated by the Arkansas Ethics Commission and the appropriate forms and instructions for complying with the applicable reporting deadlines
(iv) A form acknowledgment which each candidate shall promptly return to the Administrative Office of the Courts, therein certifying that he/she has read and understands the material forwarded and agrees to be bound by such standards during the course of the campaign.
A failure to comply with this section shall constitute a per se violation of Canon 5. Upon request, the documents executed by a candidate for judicial election in accordance with this rule shall be made available to the Director of the Arkansas Committee on Professional Conduct, the Judicial Discipline and Disability Commission, and the Arkansas Supreme Court .
Commentary:
The purposes of this subsection are to prevent inadvertent errors and assist all judicial candidates in adhering to the ethical norms set out in the Code of Judicial Conduct and the requirements of the Rules on Campaign Finance and Disclosure .
APPLICATION OF THE CODE OF JUDICIAL CONDUCT
A. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.
Commentary:
The three categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. For the purposes of this Section, as long as a retired judge is subject to recall the judge is considered to "perform judicial functions." The determination of which category and, accordingly, which specific Code provisions apply to an individual judicial officer, depend upon the facts of the particular judicial service.
B. Continuing Part-time Judge. A continuing part-time judge:
(1) is not required to comply:
(a) except while serving as a judge, with Section 3B(9); and
(b) at any time with Sections 4C(2), 4D(3), 4E(1), 4F, 4G, and 4H.5A(1), 5B(2) and 5D.
(2) shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
Commentary:
When a person who has been a continuing part-time judge is no longer a continuing part-time judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto only with the express consent of all parties pursuant to Rule 1.12(a) of the Arkansas Rules of Professional Conduct.
C. Pro Tempore Part-time Judge or Periodic Part-time Judge.
A pro tempore part-time judge or periodic part-time judge:
(1) is not required to comply:
(a) except while serving as a judge, with Sections 2A, 2B, 3B(9) and 4C(1);
(b) at any time with Sections 2C, 4C(2), 4C(3)(a), 4C(3)(b), 4D(1)(b), 4D(3), 4D(4), 4D(5), 4E, 4F, 4G, 4H, 5A(1), 5A(2), 5B(2) and 5D.
(2) A person who has been a pro tempore part-time judge or periodic part-time judge shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by Rule 1.12(a) of the Arkansas Rules of Professional Conduct.
Commentary:
A full time governmental official who has judicial powers which are exercised infrequently, such as a county judge, is a pro tempore part-time judge.
D. Time for Compliance. A person to whom this Code becomes applicable shall comply immediately with all provisions of this Code except Sections 4D(2), 4D(3) and 4E and shall comply with these Sections as soon as reasonably possible and shall do so in any event within the period of one year.
Commentary:
If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continue to serve as fiduciary but only for that period of time necessary to avoid serious adverse consequences to the beneficiary of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Section 4D(3), continue in that activity for a reasonable period but in no event longer than one year.