By Kim Thornton

Judges in Washington must conform to a variety of campaign ethics requirements that differ substantially from rules for partisan candidates. The most contentious issue, by far, is the question of what judicial candidates may say to convince voters to elect them. Whereas candidates for partisan political office freely make promises about future conduct, judicial candidates must limit both their conduct and their statements to avoid appearing biased.

Across the country, judicial campaign ethics canons have come under increased scrutiny, primarily because of a 2002 U.S. Supreme Court ruling, which limited states’ rights to restrict elected judges from speaking on issues that could come before the court.1

Requirements of the Code of Judicial Conduct

Washington’s Code of Judicial Conduct (CJC) describes the actions judicial candidates may and may not take while campaigning for judicial office.2 Campaign ethics provisions are located primarily in Canon 7 of the CJC, although candidates’ actions are certainly affected by the requirements of other canons as well.3

Canon 7(A) generally relates to judges and judicial candidates’ association with political organizations and requires them to avoid partisanship or advocacy of political issues. Canon 7(B) governs the propriety and impartiality of judges’ or judicial candidates’ conduct during the course of a campaign. The main purpose of these sections is to ensure that judicial candidates are independent of political issues so they are impartial when they hear cases related to those issues.

Canon 7(A) prohibits judges or judicial candidates from leading, holding office in, or making speeches for political organizations; publicly endorsing non-judicial candidates for public office; soliciting funds or attending fundraising events for their own campaigns; or contributing to or identifying themselves as members of political parties, except as required to vote.

The Ethics Advisory Committee appointed by the Chief Justice of the Washington State Supreme Court issues opinions based on judges’ written requests to provide advice on the application of the CJC.

The Ethics Advisory Committee has interpreted the requirements of Canon 7(A) to forbid judges and judicial candidates from participating in organizations engaged in advocacy of particular issues; soliciting funds or attending fundraisers for political parties; or contributing to political organizations. Judges and judicial candidates are permitted to contribute funds to, but not solicit funds for, other judicial candidates. They are also allowed to support and engage in political activities related to improving the law, the legal system or the administration of justice.

Canon 7(B) prohibits judges and judicial candidates from pledging or promising particular conduct other than impartiality; committing themselves to positions on issues that might come before the court; personally soliciting campaign contributions; or personal use of campaign contributions. Thus, Canon 7(B) expressly limits the statements candidates may make during an election campaign.

Effect of Republican Party v. White
In 2002, however, the U.S. Supreme Court issued a ruling that calls into question many states’ rules restricting candidate statements during election campaigns.

In Republican Party v. White, the Court ruled that a Minnesota statute containing an “announce” clause violated judicial candidates’ First Amendment rights.4 The Minnesota statute prohibited a judicial candidate from “announcing his or her views on disputed legal or political issues” during an election campaign.5 The court ruled that restrictions on a candidate’s ability to speak about legal issues were an unconstitutional infringement of the right of free speech.

A previous version of Washington’s Code of Judicial Conduct contained similar “announce” language, however the clause was deleted prior to the Supreme Court ruling, so the case appears to have limited direct impact on the Washington statute.

Notably, the Minnesota statute contained other language prohibiting a judicial candidate’s speech during campaigns, some of which closely resemble the current language in Canon 7(B)(1)(c). For example, Canon 7(B)(1)(c) prohibits judicial candidates from “mak[ing] Ôpledges or promises’ of conduct in office other than the faithful and impartial performance of the duties of the office” or “making statements that Ôcommit or appear to commit’ the candidate with respect to cases, controversies or issues that are likely to come before the court.” The Minnesota statute also had a “pledge or promise” clause, which the petitioner did not challenge; thus, the Supreme Court declined to rule on it, leaving open the issue of whether a state may prohibit other limitations on judicial candidates’ speech.6

So, the question remains: What can a judicial candidate say to encourage people to vote for him or her? Justice Scalia gave his answer in his majority opinion in Republican Party v. White. He stated that when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.7

Justice Scalia expressed skepticism about the notion that any judge could be “impartial” regarding legal issues or could ever lack preconceptions about his or her conclusions on the law.8 The only context in which impartiality would appear to be relevant is with regard to a particular party. This discussion gives us a better understanding of what the U.S. Supreme Court believes to be appropriate speech for a judicial candidate.

Republican Party v. White would appear to prohibit states from restricting judicial candidates from expressing their views on legal issues, regardless of whether the issue was likely to come before the candidate as judge, and even if the candidate’s statements appeared to commit the candidate to a particular result. Such an interpretation could imperil other provisions of state codes of conduct that interfere in any way with candidates’ free speech rights. Yet, the fact that the court limited its ruling, to “announce” clauses leaves the question open.

The Future of Judicial Campaign Ethics
On August 31, 2004, TVW aired a candidate forum sponsored by the Washington Defense Trial Lawyers in which candidates for the State Supreme Court spoke about their qualifications for office and responded to questions from the audience.9 Most candidates emphasized their ability to be impartial in rendering decisions and included only general references to their positions on issues.

It is likely that as the effects of Republican Party v. White are more fully realized, or as questions about whether judicial candidates should be free to discuss their opinions become more prominent, judicial candidates will become more candid about their views.

The question of whether judicial candidates should discuss their views is one better left for another day. For now, the CJC requires candidates to limit their comments about issues that they may have to rule on when running for judicial office by not making statements that even appear to be pledges, promises or commitments.

1 Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L.Ed.2d 694 (2002).

2 Code of Judicial Conduct, effective January 1, 1974, including amendments through October 1, 2003.

3 Canons 1 through 4 govern judicial independence and impartiality, preservation of public confidence in the judiciary and the law, avoidance of impropriety and the appearance of impropriety, impartial and diligent performance of judicial duties, and rules regarding engagement in extra-judicial activities.

4 Republican Party, 536 U.S. at 768.

5 Id. at 770.

6 Id. at 776-77.

7 Id. at 777.

8 Id. at 788.