Alaska Jud. Cond. 5
Commentary. -- A judge or candidate for judicial office retains the right to participate in the political process as a voter.
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. Nor does this section restrict the Chief Justice, acting in the role of Chair of the Alaska Judicial Council, when explaining the Judicial Council's retention recommendations to the public.
Judges should be able to take part in the public debate over proposals to change the legal system or the administration of justice; judges' training and experience make them a valuable resource to the electorate wishing to decide these issues. Since many speeches are given in forums sponsored by political organizations, a question arises concerning the relationship between, on the one hand, a judge's right to speak publicly on issues concerning the legal system and the administration of justice, and, on the other hand, the prohibition contained in Section 5A(1)(d) -- that a judge shall not attend the gathering of a political organization. Despite a judge's freedom to speak on legal issues, a judge shall not do so on behalf of a political organization or at a political gathering.
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.
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 for judicial office 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 Alaska Rules of Professional Conduct.
In Buckley v. Illinois Judicial Inquiry Board , 997 F. 2d 224 (7th Cir. 1993), the Seventh Circuit ruled that the ABA's proposed Section 5A(3)(d)(i) and the 1972 predecessor to the ABA's proposed Section 5A(3)(d)(ii) represent an unconstitutional abridgement of judicial candidates' right of free speech.
The Illinois rule at issue in Buckley prohibited judges and judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" and further prohibited judges and judicial candidates from "announc[ing] [their] views on disputed legal or political issues." These same restrictions are currently the law of Alaska: see Alaska Code of Judicial Conduct, Section 7B(1)(c). The Seventh Circuit held that these two restrictions on judges' speech are unconstitutionally overbroad.
Buckley involved two plaintiffs. The first plaintiff was a judge from the intermediate appeals court who ran for the state supreme court; the Judicial Inquiry Board disciplined him for declaring, during the campaign, that he had "never written an opinion reversing a rape conviction." The second plaintiff was a legislator who campaigned for (and was elected to) a seat on the Cook County Circuit Court; he sought relief because "the risk of being sanctioned for violating [the judicial conduct rule] deterred him from speaking out in his campaign on issues that he believed to be important to Illinois voters, including capital punishment, abortion, the state's budget, and public school education."
The Seventh Circuit noted that Buckley presented the collision of two competing political principles: First, "Candidates for public office should be free to express their views on all matters of interest to the electorate." Second, "Judges [must] decide cases in accordance with law rather than [in accordance] with any express or implied commitments that they may have made to their campaign supporters or to others." Buckley , 997 F. 2d at 227.
The court declared that "only a fanatic would suppose that. . .freedom of speech should. . .entitle a candidate for judicial office to promise to vote for one side or another in a particular case or class of cases[.]" On the other hand, the court likewise disavowed the idea "that the principle of impartial legal justice should . . . prevent a [judicial] candidate . . . from furnishing any information or opinion to the electorate beyond his name, rank, and serial number." Id. The court went on to state:
The difficulty with crafting a rule to prevent [a judicial candidate from making commitments] is that a commitment can be implicit as well as explicit. . . The candidate might make an explicit commitment to do something that was not, in so many words, taking sides in a particular case or class of cases but would be so understood by the electorate; he might for example promise always to give paramount weight to public safety or to a woman's right of privacy. Or he might discuss a particular case or class of cases in a way that was understood as a commitment to rule in a particular way, even though he avoided the language of pledges, promises, or commitments.
The "pledges or promises" clause is not limited to pledges or promises to rule a particular way in particular cases or classes of case; all pledges and promises are forbidden except a promise that the candidate will if elected faithfully and impartially discharge the duties of his judicial office. The "announce" clause is not limited to declarations as to how the candidate intends to rule in particular cases or classes of case; he may not "announce his views on disputed legal or political issues," period. The rule certainly deals effectively with the abuse that the draftsmen were concerned with; but in so doing it gags the judicial candidate. He can say nothing in public about his judicial philosophy, he cannot, for example, pledge himself to be a strict constructionist, or for that matter a legal realist. He cannot promise a better shake for indigent litigants or harried employers. He cannot criticize Roe v. Wade. He cannot express his views about substantive due process, economic rights, search and seizure, the war on drugs, the use of excessive force by police, the conditions of the prisons, or products liability -- or for that matter about laissez-faire economics, race relations, the civil war in Yugoslavia, or the proper direction of health-care reform. . .All these are disputed legal or political issues.
The rule this reaches far beyond speech that could reasonably be interpreted as committing the candidate in a way that would compromise his impartiality should he be successful in the election. Indeed, the only safe response to Illinois Supreme Court Rule 67(B)(1)(c) is silence. True, the silencing is temporary. It is limited to the duration of the campaign. But [the rule's] interference with the marketplace of ideas and opinions is at its zenith when the "customers" are most avid for the market's "product." The only time the public takes much interest in the ideas and opinions of judges or judicial candidates is when an important judicial office has to be filled . . . .
Id. at 228-29. The Seventh Circuit noted, but expressed no opinion on, the ABA's proposed revision of the "announce his views" clause. In the 1990 version of the model Code, the ABA has amended this Section so that it now prohibits a judge or judicial candidate from making "statements that commit or appear to commit the judge to a particular view or decision with respect to cases, controversies, or issues . . . likely to come before [the judge's] court." According to the ABA commentary to Section 5A(3)(d)(ii), the predecessor "announce" rule was felt to be too broad.
The Seventh Circuit points out in Buckley that, even with this change, the ABA provisions may run afoul of First Amendment protections. For example, read too broadly, a Section that prohibits a judge from making any pledge or promise (other than to do a good job) could be used as a basis for disciplinary action against a judicial candidate who declared that he or she believed the courts should actively pursue sentencing alternatives to imprisonment. Conceivably, this same provision could subject a judge to discipline for declaring, as Ruth Ginsberg told the Senate Judiciary Committee on July 20, 1993 [as reported in the Anchorage Daily News of 7/21/93], "My approach [to service on the supreme court] is rooted in the [belief] that the place of the judiciary. . .in our democratic society [is] third in line behind the people and their elected representatives" -- a comment that might be construed as a pledge to broadly construe the powers of the legislative branch and to narrowly circumscribe the reach of the Bill of Rights as a check on legislative activity. The Code should be interpreted in a manner that does not infringe First Amendment rights.
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 support their own candidacy and seek appropriate support from others.
Sections 5B(2)(a)(ii) and (iii) should be read to allow judicial candidates, including judges who are candidates for appointment to other judicial office, to promote their candidacy by circulating letters to the general membership of the bar and to organizations interested in judicial selection. Similarly, a judge need not object when individual lawyers or groups of lawyers decide to circulate a letter in support of the judge's candidacy. However, these letters must not contain promises or statements forbidden by Section 5A(3)(d) (regarding the candidate's likely decisions or action if appointed), must not contain false statements, and, in general, must not violate any other provision of the Code.
A different problem is presented when a judicial candidate approaches individual lawyers or organizations and seeks their endorsement of his or her candidacy. Even though Canon 5 generally tries to make the rules of political conduct uniform for all judicial candidates (both current judges and lawyers applying to be judges), a sitting judge's approach to individual lawyers inevitably presents problems that do not arise when a non-judge candidate approaches other members of the bar. Because a sitting judge will wield judicial power whether or not the judge's campaign for a different office is successful, a judge who asks individuals for political support runs the risk that the request will give the appearance of abuse of office. Because there is a latent potential for subtle coercion in such requests, a judge's request for the personal endorsement of a lawyer must be circumspect and framed cautiously. A judge must take pains to avoid even giving the appearance that he or she is using or threatening to use the power of judicial office to obtain endorsements.
Section 5B(2)(a)(ii) allows a candidate to seek privately-communicated support or endorsement. Under this provision, a candidate may ask individuals and organizations to send a letter to the Alaska Judicial Council or to the governor, or to speak in support of the candidate at a public hearing held by the Judicial Council or at a private meeting with the governor or the governor's staff. However, a candidate may not ask or authorize individuals or organizations to run newspaper advertisements endorsing the candidate or to send letters to their membership or to other organizations encouraging them to support the candidate. If the candidate is a judge, the candidate should ask individuals and organizations not to send copies of endorsement letters to the candidate.
Although under Section 5B(2)(b) non-judge candidates seeking appointment to judicial office are permitted during their 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 their candidacy. See Sections 5E and Application Section.
Commentary. -- Sections 5C(1) and (2) permit a judge who is a candidate for retention to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity.
Section 5C(2) allows judges seeking retention in office to engage in overt political activity if there is "active opposition" to their candidacy. This Code, like the prior Code, does not define "active opposition." However, the term is meant to be broadly construed. A negative recommendation by the Alaska Judicial Council constitutes active opposition. Holding a press conference, advertising, distributing brochures or leaflets, and sending letters to voters are all forms of active opposition. On the other hand, statements made by individual speakers at Judicial Council meetings rarely constitute active opposition, regardless of what is said. Active opposition may be conducted by individuals acting alone as well as by groups. The opposition need not be specifically targeted at one particular judge or at a discrete group of judges -- a newspaper advertisement urging the rejection of all judges standing for retention would be viewed as active opposition to the candidacy of each individual judge. If a judge has information and believes that active opposition is imminent, the judge may document the basis of this belief to the Judicial Conduct Commission and may then proceed as if there were active opposition to the judge's candidacy.
Commentary. -- Section 5C(2) permits a judge who is a candidate for retention to establish a campaign committee to solicit and accept public support and reasonable financial contributions if there is active opposition to the judge's candidacy. At the start of the campaign, the judge must instruct his or her campaign committee to solicit or accept only contributions that are 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.
Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fundraising, to the extent possible.
Section 5C(2) does not prohibit a judge who is a candidate for retention 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.
Sections 5C and 5D are intended to restrict fundraising by and on behalf of individual judges. These Sections are not intended to prohibit an organization of judges from soliciting money from judges to establish a campaign fund to assist judges who face active opposition to their retention.
They are not intended to restrict the ability of judges to spend their own funds in support of their own candidacies.
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.
Alaska Jud. Cond. 5