Unlike candidates for other governmental positions, candidates for judicial office are held to a higher standard with regard to their political activities, and contests for judicial seats are fundamentally different from other political contests.
Members of the executive and legislative branches are representatives and agents of a constituency and are expected to act in their constituents' best interests. Judges, on the other hand, are expected to follow the law based upon the facts of each individual case before them. Given the presumption of impartiality and the judicial duty to avoid even the appearance of impropriety, special problems arise during judicial campaigns that are absent from other races.
Because preservation of the integrity of the judicial office is vital if public respect for the law and the courts is also to be preserved, the King County Bar Association formed the Fair Campaign Practices Committee to monitor judicial elections that take place in whole or in part in King County and to respond to complaints of unfair practices in those elections.
The Committee's charge is to quickly and fairly resolve allegations of unfair conduct, both to correct potentially misleading campaign activities and to deter future violations. The Committee is open to all members of the KCBA, as well as retired judges.
Committee Standards
Judicial candidates generally are held to the standards of the Code of Judicial Conduct (CJC), particularly Canon 7, and the Public Disclosure Act (PDA), RCW ch. 42.17, which regulate political activities, including fundraising and campaigning. They also preclude candidates from, among other things, making statements that appear to commit the candidate with respect to certain issues or making knowing misrepresentations regarding the candidate or the candidate's opponent.
The KCBA Board of Trustees believes, however, that the CJC and PDA alone might not determine whether certain conduct is unfair and that the Committee must analyze complaints on a case-by-case basis. There-fore, the Committee also relies upon the KCBA's Fair Campaign Practices Guide-lines, previous opinions by the King County and Washington State bar associations, case law and common sense.
Because the Committee holds the judicial candidates to the highest ethical standards, in the event of conduct that has the potential to mislead the voting public it may recommend corrective action by the Board of Trustees in response to any misleading impressions.
Examples of Unfair Activities
The Committee has reviewed a variety of campaign practices in recent years. Signs often are the source of complaints.
A common complaint has been the false suggestion that a candidate is an incumbent judge. With respect to signs, the word "Judge" might be used to imply that the candidate already holds this position. For example, it is not misleading to use a yard sign that states:
Vote
For
John Smith
Superior Court Judge Position 85
However, it may be misleading, for a non-incumbent, to use a sign that states:
Vote
Superior Court Judge
John Smith
Although context is important, candidates need to be mindful that signs will be analyzed from the perspective of the voting public, not that of lawyers who are knowledgeable about the candidates and the positions they seek.
Another similar example involves candidates who, although sitting judges, are seeking a position on a higher court and do not make it clear that they are not actually a judge of the higher court. Or the candidate who is not actually a sitting judge is pictured on a sign wearing a judicial robe.
How the Committee Functions
The Committee recognizes that judicial candidates must campaign and strives to balance the right to effective campaigning against the obligation to avoid deception. It does this by investigating complaints of unfair conduct and making recommendations to the Board of Trustees on what, if any, action should be taken.
When corrective action has been deemed necessary, Board action has included issuing press releases, obtaining agreements from candidates to refrain from engaging in certain types of behavior and having candidates take corrective action with respect to potentially misleading conduct.
The Committee itself issues no public statements. It is not a disciplinary group or a governmental entity. Its proceedings and discussions are confidential. It is made up of lawyers from King County who agree that, since we must have judicial elections, it is in the public interest to have judicial elections that are "above the fray" of partisan elections. To that end, the Committee strives to quickly respond to complaints, determine if the conduct at issue is truly "unfair" - not always an easy task - and recommend a course of action to the Board. After that, the Board determines the appropriate course of action to take, if any.
Judicial Campaign Agreement
Once all judicial candidates have declared their candidacy, the KCBA sends them an informational letter, accompanied by the fair campaign practices guidelines and a proposed agreement for the candidate to sign. The agreement states:
I agree to familiarize myself with all applicable laws and regulations regarding judicial campaigns, including Canon 7 of the Code of Judicial Conduct, and to conduct my campaign in accordance therewith. I further agree to familiarize myself with and abide by the King County Bar Association's Guidelines for the Conduct of Campaigns for Judicial Office, a copy of which I have received. I shall also cause those managing my campaign to read this Agreement and to abide by its terms.
The candidates, of course, are not required to sign the agreement; their decision is completely voluntary. Information about which candidates have signed the agreement, however, is available to the public.
Complaint Process
The Committee acts when it receives a written complaint. Under the fair campaign practices guidelines, one or more Committee members are assigned to investigate the complaint within one business day, and the goal is to complete the investigation within two business days.
The Committee then meets to discuss the investigation, after which it decides whether to dismiss the complaint, come to an agreed resolution with the candidate or refer it to the Board with a recommendation for particular action.
The Committee and the Board are mindful that judicial candidates in Washington are required to engage in the political process and by no means wish to inhibit their ability to get their messages out to the voting public. Candidates need to remember, however, that their colleagues expect nothing less than absolute honesty with respect to their public statements. In the past, some candidates, whether through carelessness or intent, have made statements that might be regarded as misleading to the voting public.
It is the hope of the Committee and the Board of Trustees that this article will help candidates understand the purpose of the Fair Campaign Practices Committee and avoid potentially misleading conduct during the course of their upcoming campaigns.
Neal J. Philip is a shareholder with the firm of Carney Badley Spellman, and is the current Chairperson of the Fair Campaign Practices Committee of the King County Bar Association. This article was originally published in the May 2005 issue of the Bar Bulletin.
