Nev. Sup. Ct. R. 4.1
Nev. Sup. Ct. R. 4.1
COMMENT General Considerations
[I] 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.
[2] Canon 4 applies to all incuirbent judges and judicial candidates. A succes sful candidate, whether or not an incuirbent, 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 of the Nevada Rules of Professional Conduct. A nonlawyer who is an unsuccessful candidate for judicial office is subject to the applicable provisions of the Nevada Revised Statutes, including those referred to in Part VI of the Application section as being inapplicable to the judicial branch of government.
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. A judge or candidate for judicial office retains the right to participate in the political process as a voter, be a member of a political organization, and contribute personal funds to a candidate or political organization. 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] Paragraphs (A)(2) and (A)(3) pro hib it judges and judicial candidates frommaking speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent themfrom 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, or from endorsing or opposing candidates for the same judicial office for which they are running. See Rules 4.2(B)(2) and 4.2(B)(3). A judge or judicial candidate's donation to a candidate orpolitical organization that is otherwise permitted by state orfederal law is not considered a public endorsement of a candidate for public office. Nothing in this Rule prohibits a judge or candidate from speaking to a political organization.
[5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" 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.
[6] 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).
[6A] Paragraph (C) permits judges or judicial candidates to be involved in limited political activity at any time and also allows them to make a public declaration of candidacy and to make public speeches and appearances at any time. Even though judges in Nevada are chosen by means of nonpartisan elections, judges and candidates for judicial office are occasionally asked at candidates' forums to identify their political party affiliations. Rule 4.1(C)(2) permits ajudge orcandidate to identify his or her political party membership upon request. While judges and candidates may properly respond to questions regarding their party affiliation, it is impermissible in campaign materials for them to align themselves with a political party or to affiliate themselves with a political party. Nonetheless, judges and candidates may place their campaign materials on a table designated for the distribution of literature at any gathering regardless of whether the table is sponsored by a particular political party.
[6B] Paragraph (A)(10) does not prohibit use of court facilities or resources for limited purposes such as filming campaign commercials, so long as the use does not interfere with the performance of judicial duties. Statements and Comments Made During a Campaign for Judicial Office
[7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(ll) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.
[8] 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)(ll), (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.
[9] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against himor her during a campaign, although it is preferable for someone else to respond if the allegations relate to a pending case.
[10] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair the fairness of pending or impending 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 ajudge that may appropriately affect the outcome of a matter.
Pledges, Promises, or Commitments Inconsistent With Impartial Performance of the Adjudicative Duhes of Judicial Office
[II] The role of ajudge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must 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 themto distinguish between candidates and make informed electoral choices.
[12] 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.
[13] 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.
[14] 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 favoritismin 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.
[15] 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 orpolitical 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 night lead to frequent disqualification. See Rule 2.11.