January 18, 2016 Practice Points

Campaign Ethics: A Reason to Forego Judicial Elections?

The First Amendment protects judicial candidates' right to mislead the public

by James D. Abrams and Erica L. Cook

In this election season, the topic of judicial elections is once again the subject of heated debate. For those looking to strengthen their argument against popular election of judges, beyond the oft-raised concern of judges seeking campaign contributions from the very lawyers arguing before them, try this: the First Amendment protects judicial candidates' right to mislead the public.

The American Bar Association's Model Code of Judicial Conduct Rule 4.1(A)(11) and the corresponding rules adopted by almost half of the states have attempted to prohibit false or misleading statements by judicial candidates. Between 2000 and 2014, however, at least six different state or federal courts have declared such restrictions unconstitutional.

An incident from a Nevada judicial campaign illustrates this quandary. In Kishner v. Nevada Standing Committee on Judicial Ethics & Election Practices, 2010 U.S. Dist. LEXIS 120903, 2010 WL 4365951 (D. Nev. Oct. 28, 2010), then-judicial candidate Kishner appeared on a television program during the course of her campaign and commented on a past court case in which her opponent was sued by a trust beneficiary who alleged undue influence in drafting. Her purpose was to raise questions about her opponent's judgment and compliance with ethical rules. She omitted, however, that her opponent had successfully rebutted the presumption of undue influence. She further stated that her opponent was not disciplined due to litigation, implying the possibility of discipline when, in fact, there had been no plan to impose discipline at all.

Kishner was censured by the Nevada Standing Committee on Judicial Ethics & Election Practices for violation of Rule 4.1(A)(11) of the Nevada Code of Judicial Conduct, but successfully sought a temporary restraining order to restrain publication of the censure. The U.S. District Court for the District of Nevada ordered that Rule 4.1(A)(11) was unconstitutionally vague as to the term "misleading" and unconstitutional as applied to Kishner.

The Nevada Rule in question has not been changed since the Kishner decision, and the language comes verbatim from the ABA's Model Code: "Except as permitted by law . . . a judge or a judicial candidate shall not . . . knowingly, or with reckless disregard for the truth, make any false or misleading statement." The court considered the rule vague because a candidate could not ascertain all of the facts necessary to include in a statement in order to avoid misleading the public.

Upon reflection, if a candidate is unable to make such a determination, it raises a question regarding the candidate's qualifications for judicial office. Moreover, innocent misstatements would seemingly be protected by the rule's condition that the statement be made knowingly or recklessly.

Other states have faced similar rule challenges. The Michigan Supreme Court used the case of In re Chmura, 608 N.W.2d 31 (Mich. 2000) to change a canon in the Michigan Code of Judicial Conduct from one that, in part, prohibited candidates from making misleading or deceptive communications, to one that only prohibits false communications. The Chmura court held the former rule unconstitutionally overbroad, noting its potentially chilling effect on candidates' statements as they sought election.

Similar holdings (and amended rules) followed in Alabama (Butler v. Alabama Judicial Inquiry Com'n, 802 So.2d 207 (Ala. 2001), which held unconstitutional the portion of the canon prohibiting "true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person."); Georgia (Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), which held unconstitutional the portion of the canon prohibiting a communication that is "fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the communication considered as a whole not materially misleading."); Kentucky (Winter v. Wolnitzek, 56 F. Supp. 3d 884 (E.D. Ky. 2014), questioning the constitutionality of the portion of the canon prohibiting "false or misleading statements" and Winter v. Wolnitzek, 2015 U.S. Dist. LEXIS 17849 (E.D. Ky. Feb. 12, 2015), certifying the question of what "constitutes a false statement" to the Supreme Court of Kentucky); and Ohio (In re Judicial Campaign Complaint Against O'Toole, 24 N.E.3d 1114 (Ohio 2014), which held unconstitutional the portion of the rule prohibiting communications "if true, that would be deceiving or misleading to a reasonable person.").

In light of these decisions, how can a state prohibit judicial candidates' misleading statements in a manner that will withstand strict scrutiny? Arguably, a prohibition on a misleading statement made "knowingly or with reckless disregard for the truth" would not chill the speech of a candidate with a good faith belief in its truth, yet the Nevada court held the rule with such phrasing unconstitutional.

The states have a compelling interest in promoting public confidence in the judiciary, yet their hands are tied when they attempt to protect this interest by restraining misleading campaign speech. If such prohibitions cannot comport with the Constitution, perhaps it is time to rethink judicial campaigns. Shouldn't the goal of truthful communication be more than simply aspirational?

Keywords: commercial and business, litigation, ethics, judicial campaign, judicial elections, judicial ethics, Model Code of Judicial Conduct, unconstitutional

James D. Abrams and Erica L. Cook are with Taft, Stettinius & Hollister, LLP, in Columbus, Ohio.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).