Basic Fairness

Code of Judicial Conduct - Canon 5
A judge or judicial candidate shall refrain from inappropriate political activity.

A. All judges and candidates.

(1) Except as authorized in Sections 5B(2), 5C(1), and 5C(3), a judge or a candidate* for election or appointment to judicial office shall not:

(a) act as a leader or hold an office in a political organization* ;

(b) publicly endorse or publicly oppose another candidate for public office;

(c) make speeches on behalf of a political organization*;

(d) publicly display any campaign paraphernalia in any area where judicial activities are conducted or knowingly* permit any such display;

(e) solicit funds for a political organization * or candidate.

Commentary. - A judge or candidate * for judicial office retains the right to participate in the political process as a voter.

Where false information concerning a judicial candidate is made public, a judge or another judicial candidate * having knowledge * of the facts is not prohibited by Section 5A(1) from making the facts public.

Section 5A(1)(a) does not prohibit a candidate * for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization*."

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.

A candidate* does not publicly endorse another candidate for public office by having that candidate's name on the same ticket.

(2) A judge shall resign from judicial office upon becoming a candidate* for a non-judicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate * for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law* to do so.

(3) A candidate* for a judicial office

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and should encourage members of the candidate's family* to adhere to the same standards of political conduct in support of the candidate* that apply to the candidate* ;

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.

(b) shall prohibit employees and officials who serve at the pleasure of the candidate*, and shall discourage other employees and officials subject to the candidate's* direction and control from doing on the candidate's* behalf what the candidate* is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly* permit any other person to do for the candidate* what the candidate* is prohibited from doing under the Sections of this Canon;

(d) shall not:

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) make statements that commit or appear to commit the candidate* with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly* misrepresent the identity, qualifications, present position, or other fact concerning the candidate* or an opponent;

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 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 Rules of Professional Conduct.

(e) may respond to personal attacks or attacks on the candidate's* record as long as the response does not violate Section 5A(3)(d).

B. Candidates seeking appointment to judicial or other governmental office.

(1) A candidate* for appointment to judicial office or a judge seeking other governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support his or her candidacy.

(2) A candidate* for appointment to judicial office or a judge seeking other governmental office shall not engage in any political activity to secure the appointment inconsistent with the provisions of Section 5A(1), but such persons may:

(a) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;

(b) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and

(c) provide to those specified in Sections 5B(2)(a) and 5B(2)(b) information as to his or her qualifications for the office.

(3) A non-judge candidate* for appointment to judicial office may, in addition, unless otherwise prohibited by law*, retain an office in a political organization*.

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 apply for the appointment and seek appropriate support.

Although under Section 5B(2) non-judge candidates* seeking appointment to judicial office are permitted during candidacy to retain office in a political organization*, they remain subject to other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Canon 6.

C. Judges and candidates subject to public election.

(1) A judge or a candidate* subject to public election* may, except as prohibited by law* :

(a) at any time

(i) purchase tickets for and attend political gatherings;

(ii) identify himself or herself as a member of a political party; and

(iii) contribute to a political organization*;

(b) when a candidate for election

(i) speak to gatherings on his or her own behalf;

(ii) appear in newspaper, television, and other media advertisements supporting his or her candidacy; and

(iii) distribute pamphlets and other promotional campaign literature supporting his or her candidacy.

Commentary. - Section 5C(1) permits judges subject to public election* at any time to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity.

(2) A candidate* shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate* may, however, establish committees of responsible persons to conduct campaigns for the candidate* through media advertisements, brochures, mailings, candidate forums, and other means not prohibited by law*. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate* shall not use or permit the use of campaign contributions for the private benefit of the candidate* or others.

Commentary. - Section 5C(2) permits a candidate*, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and reasonable financial contributions. At the start of the campaign, the candidate must instruct his or her campaign committees 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 fund-raising, to the extent possible.

Section 5C(2) does not prohibit a candidate* 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.

(3) Except as prohibited by law *, a candidate* for judicial office in a public election* may permit the candidate's* name: (a) to be listed on election materials along with the names of other candidates for elective public office, and (b) to appear in promotions of the ticket.

Commentary. - Section 5C(3) provides a limited exception to the restrictions imposed by Section 5A(1).

The Time for Compliance provision of this Code (Section 6F) postpones the time for compliance with certain provisions of this Section in some cases.

D. Incumbent judges. A judge shall not engage in any political activity except (i) as authorized under any other Section of this Code, (ii) on behalf of measures to improve the law*, the legal system or the administration of justice, or (iii) as expressly authorized by law*.

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.

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates*. A candidate*, whether or not an incumbent* and whether or not successful, is subject to judicial discipline for his or her campaign conduct.

Commentary. - A lawyer who is a candidate* for judicial office may also be disciplined under the Rule of Professional Conduct for his or her campaign conduct. See especially Rule 8.2.

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