Ky. R. Sup. Ct. 4.1
Ky. R. Sup. Ct. 4.1
Comment
General considerations
[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account Kentucky's non-partisan election of judges.
[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.
Participation in Political Activities
[3] Public confidence in the independence* and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations.
[4] Section 117 of the Kentucky Constitution requires that judges be elected on a nonpartisan basis; it forms the basis for "Kentucky's compelling interest in preventing judges from becoming (or being perceived as becoming) part of partisan political machines." See Winter v. Wolnitzek, 834 F.3d 681, 691 (6th Cir. 2016). "Judges are not politicians, even when they come to the bench by way of the ballot. And a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office." Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015).
Paragraph (A)(l)'s proscription against acting as a leader of a political organization furthers this compelling interest in diminishing reliance on political parties in judicial selection, and in preserving public confidence in judges, by removing judges and judicial candidates from involvement in the political campaigns of others. Acting as a leader involves "advancing] the political agenda of the party in a less formal way [than holding an office] through proactive planning, organizing, directing, and controlling of party functions with the goal of achieving success for the political party. These less formalized, leader-without-title, positions would include, for example, acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title... ." Winter v. Wolnitzek, 482 S.W.3d 768,777-78 (Ky. 2016). A judge or judicial candidate also is prohibited from hosting political events. In addition to fund raisers for other candidates, political events include events sponsored by or associated with political organizations.
[5] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf.
[6] Although members of the families of judges and judicial candidates* are free to engage in their own political activity, including running for public office, no "family exception" exists to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member's candidacy or other political activity.
[7] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3).
[8] Paragraph A(4) does not prohibit a judge or judicial candidate from making contributions to his or her own campaign.
[9] A judge or judicial candidate "in purchasing tickets to political gatherings," pursuant to paragraph A(5), should be careful that he or she does not create the impression that the purchase is solely a contribution to another candidate or political organization, which is prohibited, but, rather, is for the advancement" of the judge or judicial candidate purchasing the ticket(s).
[10] "States may regulate judicial elections differently than they regulate political elections...." Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015). "Kentucky has a right to prevent candidates from identifying themselves as the nominee of a political party of a judicial seat." Winter v. Wolnitzek, 834 F.3d 681, 689 (6th Cir. 2016). By prohibiting a judge or judicial candidate from seeking, accepting, or using endorsements from a political organization, paragraph (A)(7) is designed to further this right and the requirement in Section 117 of the Kentucky Constitution that judges be elected on a nonpartisan basis. A political organization's endorsement of a candidate is but slightly removed from the judge or candidate's nomination as the political organization's official candidate. Candidates remain free to announce their party affiliation but cannot render hollow the right of "citizens of the Commonwealth ... to vote for their judges in nonpartisan elections," id., by seeking, accepting, or using endorsements of political organizations in their campaigns.
A judge or judicial candidate is not required to disavow an endorsement to avoid being deemed to have accepted it. A judge or judicial candidate uses an endorsement of a political organization when the judge or judicial candidate employs or displays the endorsement in oral, written, or electronic communication.
[11] Paragraph A( 10) does not prohibit court staff from using their own time, while not being paid as court staff, to assist in a campaign for judicial office consistent with Part III of the Administrative Procedures of the Kentucky Court of Justice, Personnel Policies.
Statements and Comments Made during a Campaign for Judicial Office
[12] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees to refrain from making statements that are false, or that omit facts necessary to make the communication considered as a whole not materially false.
[13] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate's integrity* or fitness for judicial office. As long as the candidate does not violate paragraphs (A)(11), (A)(12), or
(A)(13), the candidate may make a factually accurate public response. In addition, when an independent third party has made unwarranted attacks on a candidate's opponent, the candidate may disavow the attacks, and request the third party to cease and desist.
[14] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although someone else, preferably, should respond if the allegations relate to a pending case. The judicial candidate shall make every effort to ensure that any response regarding a pending case does not impair the fairness of the pending judicial proceedings.
[15] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair the fairness of pending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.
Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office
[ 16 ] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office should be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.
[ 17] Paragraph (A)(13) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
[18] This Rule does not prohibit a judge or judicial candidate from expressing, during a campaign, general legal principles, so long as those statements would not reasonably be expected to affect the outcome or impair the fairness of a pending matter or to constitute a commitment to reach a particular result in pending or future matters. The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.
[19] In prohibiting issue-based commitments "inconsistent with the impartial performance of the adjudicative duties of judicial office," Kentucky has a compelling interest in forbidding judges and candidates from showing bias in favor or against parties or classes of parties. See Winter v. Wolnitzek, 834 F.3d 681, 694-95 (6th Cir. 2016).
[20] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.
[21] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates' responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate's independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.