[Return to Doug Schafer's Election Home Page]Washington Supreme Court Reports
DISCIPLINE OF SANDERS, 135 Wn.2d 175 (1998)
955 P.2d 369
In the Matter of the Disciplinary Proceeding Against RICHARD B. SANDERS,
as Justice of the Supreme Court.
No. J.D. 12.
The Supreme Court of Washington, En Banc.
Argued December 17, 1997.
Decided April 28, 1998.
[Click here to go to the Canon 7 (judicial speech) discussion's conclusion.]
Page 176
[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES
ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE
NOT DISPLAYED.]
Page 177Preston Gates & Ellis, by Paul J. Lawrence, for Justice
Sanders.
Page 178Tonkon, Torp, Galen, Marmaduke & Booth, by Peter H. Koehler,
Jr., (Donald H. Marmaduke and Steven Wilker, of counsel), for
the Commission on Judicial Conduct.GROSSE, J.[fn*]
[fn*] Judge C. Kenneth Grosse and each member of the panel are
serving as justices pro tempore of the Supreme Court pursuant
to Const. art. IV, § 2(a) (amend. 38) and Discipline Rules for
Judges (DRJ) 13.A Justice of the State Supreme Court, as any judge, is
required to maintain the appearance of impartiality. Doing so
is oftentimes difficult, and requires significant restraint by
the judicial officer when it comes to public appearances and
remarks, 0 particularly with respect to subjects and subject
matter that are the focus of widespread public debate and
controversy. In this case, the Washington Commission on
Judicial Conduct determined that Justice Richard B. Sanders did
not exercise sufficient restraint. We hold, however, that what
Justice Sanders did and said at a March for Life rally on the
day of his official swearing-in does not rise to a level
permitting sanction, at least not on this record and not
consistent with Justice Sanders' legitimate expectations under
the state and federal constitutions.Judges do not forfeit the right to freedom of speech when
they assume office. They do agree, however, that the right must
be balanced against the public's legitimate expectations of
judicial impartiality. But the constitutional concern weighs
more heavily in that balance, requiring clear and convincing
evidence of speech or conduct that casts doubt on a judge's
integrity, independence, or impartiality in order to justify
placing a restriction on that right.Justice Sanders' brief appearance at the rally to express his
belief in the preservation and protection of innocent
Page 179
human life and to thank his supporters in the crowd for his
election to office does not lead to a clear conclusion that he
was, as a result, not impartial on the issue as it might
present itself to him in his role as a judge.FACTS
Justice Sanders was elected to the Washington Supreme Court
in November 1995. His formal swearing-in ceremony took place at
the Temple of Justice building on the state capitol campus in
Olympia on January 26, 1996. On the same day, the organization
"Washington State March for Life" (March for Life) held its
annual rally in Olympia. March for Life is an organization
composed of people who are opposed to abortion. During the
rally, the group marched by the Temple of Justice and ended up
at the steps of the Legislative Building, where various
speakers, including a bipartisan collection of state
legislators, addressed the crowd.A few days prior to January 26, Justice Sanders telephoned
Kenneth VanDerhoef, a close friend and president of Human Life
of Washington, an organization opposed to abortion. Justice
Sanders told VanDerhoef that he planned to attend the March for
Life rally and wanted to address those in attendance. Justice
Sanders knew at the time he sought an opportunity to speak at
the rally that there was a "political aspect" to the abortion
issue as well as a "moral aspect." When later asked whether he
had taken any steps to determine whether the rally would be in
support of electing pro-life legislators or passing pro-life
legislation, Justice Sanders responded that he "didn't do a
great deal of research about this," but rather only read March
for Life's advertisement and spoke to VanDerhoef. This
advertisement invited members of the public to participate in
the rally and to "join and witness all life is sacred." The
advertisement urged those who came to "Carry a red rose, `the
pro-life symbol.'"At the conclusion of his swearing-in ceremony, Justice
Page 180
Sanders walked to the rally which was underway at the steps of
the Legislative Building. According to Justice Sanders, he
carried a red rose because the sponsors had asked participants
to carry one, in his estimation, "to identify themselves as a
participant in the event."When he arrived at the rally, Justice Sanders was introduced
as a Chief Justice by Katherine McEntee, the president of March
for Life. Justice Sanders took the podium and addressed the
crowd, still carrying the red rose. The full text of his
address is as follows:Well, I'm not quite Chief Justice, but I am a
Justice. That's plenty good enough for me. I want to
give all of you my best wishes in this celebration of
human life. Nothing is, nor should be, more
fundamental in our legal system than the preservation
and protection of innocent human life. By
coincidence, or perhaps by providence, my formal
induction to the Washington State Supreme Court
occurred about an hour ago. I owe my election to many
of the people who are here today and I'm here to say
thank you very much and good luck. Our mutual pursuit
of justice requires a lifetime of dedication and
courage. Keep up the good work.Justice Sanders left the gathering immediately after he
addressed the crowd.The Washington Commission on Judicial Conduct (CJC) conducted
an investigation into Justice Sanders' appearance at the March
for Life rally and, on December 3, 1996, served him with a
Statement of Charges. The CJC determined that probable cause
existed to believe that Justice Sanders violated Canons 1,
2(A), 2(B), 7(A)(1), and 7(A)(5) of the Code of Judicial
Conduct, and that his conduct was not permitted by Canons 4 or
5. After a fact-finding hearing, the CJC issued its decision.
Among the facts the CJC found was that the March for Life event
at which Justice Sanders spoke was a political rally. "Speakers
urged those in attendance to work for the election of a
pro-life governor and pro-life legislators. The enactment of
pro-life legislation was also actively promoted." CJC Finding
of Fact 5. The CJC also found:
Page 181[Justice Sanders'] actions went beyond the mere
expression of his opinion. By his presence, his act
of carrying the pro-life symbol (a red rose), and his
statements he aligned himself with a particular
organization involved in pursuing a political agenda.
Respondent gave the appearance that he, a justice of
the Washington State Supreme Court, supported the
agenda advocated by March for Life. . . . [T]he
statement was made during the course of a political
rally wherein he spoke as a supporter of the cause.CJC Finding of Fact 8.
The CJC concluded that Justice Sanders violated Canons 1,
2(B), and 7(A)(5) of the Code of Judicial Conduct and that his
acts were not within the scope of either Canon 4 or 5. CJC
Conclusions 2-5. The CJC considered several mitigating and
aggravating factors and ordered that Justice Sanders be
reprimanded and required to complete a course in judicial
ethics.[fn1] Justice Sanders appeals.DISCUSSION
Standard of Review and Burden of Proof
Our constitution confers the power to discipline a
judge on the supreme court. Const. art. IV, § 31 (amend. 77).
We review the CJC's decision de novo, In re Stoker, 118 Wn.2d 782,
793, 827 P.2d 986 (1992); In re Kaiser, 111 Wn.2d 275,
279, 759 P.2d 392 (1988), while giving considerable weight to
the CJC's findings and recommendations. In re Blauvelt,
115 Wn.2d 735, 740 n. 5, 801 P.2d 235 (1990); Kaiser, 111 Wn.2d at
279.The burden of proof in judicial disciplinary proceedings
is clear, cogent, and convincing evidence. Kaiser, 111 Wn.2d.
at 279; In re Deming, 108 Wn.2d 82, 109, 736 P.2d 639,
744 P.2d 340 (1987). Such evidence is "evidence which is weightier and
more convincing than a preponderance of the evidence, but which
need not reach the level of `beyond a reasonable doubt.'"
Deming, 108 Wn.2d at 109.
Page 182Canon 1
Canon 1 of the Code of Judicial Conduct provides:
An independent and honorable judiciary is
indispensable to justice in our society. Judges
should participate in establishing, maintaining, and
enforcing high standards of judicial conduct, and
shall personally observe those standards so that the
integrity and independence of the judiciary will be
preserved. The provisions of this Code are to be
construed and applied to further that objective.The CJC concluded that Justice Sanders "violated Canon 1 by
failing to personally observe high standards of judicial
conduct and by diminishing public confidence in the judiciary."
CJC Conclusion 2. We cannot agree.In this case, we are called upon to balance a judge's
First Amendment rights against the interests the Code of
Judicial Conduct is aimed at protecting. These latter interests
are set forth in Canon 1. Thus, Canon 1 establishes the dynamic
tension that exists in the system into which judges are
elected. That is, judges in Washington are elected officials
and remain elected officials even after they take the oath of
office. They are part of a political system, yet are forbidden
from being, or appearing to be, partisan. They remain citizens
who are entitled to enjoy the rights and freedoms guaranteed by
the First Amendment, including the right to freedom of speech,
yet are forbidden from being biased or partial, or appearing to
lack impartiality.To rely on Canon 1 as an independent basis for finding a
violation of the Code under the circumstances of this case
effectively begs the question presented. Canon 1 embodies the
interests against which a judge's First Amendment rights must
be balanced, but in this case it is these rights and interests
that are in conflict. We therefore reverse the CJC to the
extent it found that Justice Sanders committed an independent
violation of Canon 1.
Page 183Canon 7
If Canon 1 sets the conceptual framework for the constraints
on judges, Canon 7 provides the more specific constraints,
particularly as applied to the facts of this case.Canon 7 of the Code of Judicial Conduct begins by enumerating
specific types of "political conduct" in which judges or
candidates for election to judicial office may not engage.
Canon 7(A)(1)-(4). Canon 7(A)(5), which the CJC concluded
Justice Sanders violated, provides: "Judges should not engage
in any other political activity except on behalf of measures to
improve the law, the legal system or the administration of
justice."[fn2] The CJC concluded that
Page 184
Justice Sanders "violated Canon 7(A)(5) by engaging in
political activity other than to improve the law, the legal
system, or the administration of justice." CJC Conclusion 4.We have been urged to resolve this issue simply by making a
determination as to whether Justice Sanders engaged
Page 185
in political activity. For the reasons that follow, we find
that this is an insufficient and inappropriate approach.The Code of Judicial Conduct does not define the term
"political activity." Much effort has been expended, both in
the present case and by courts in prior cases, in attempting to
identify what sort of conduct falls within subsection (5)'s
prohibition of "political activity." In one such attempt, In re
Staples, 105 Wn.2d 905, 910, 719 P.2d 558 (1986), the court
refused to discipline Judge Staples for actively campaigning in
favor of moving the county seat of Benton County from Prosser
to Kennewick. Rather, it found that the judge's conduct fell
squarely within the realm of political activity that is "on
behalf of measures to improve the law, the legal system or the
administration of justice," conduct that is expressly permitted
under Canon 7(A)(5).[fn3] The court also stated that a judge's
participation in "nonpartisan, civic-minded political activity"
does not implicate the policy concerns underlying Canon 7(A)(5)
and therefore does not fall within the canon's prohibition.
Staples, 105 Wn.2d at 910.The court's statement in Staples that conduct is not
"political" under Canon 7 if it is not partisan is not only
dicta,[fn4] but it is also not helpful. Canon 7(A)(5)'s prohibition
of engaging in political activity must be read in light of the
directive in Canon 1 that judges act in furtherance of
maintaining an impartial judiciary. The prohibition against
engaging in other political activity cannot mean simply
avoiding issues that divide neatly along traditional party
lines. To do so would thwart efforts to fulfill the goals of
Canon 1.However, simply focusing on the "on behalf of measures to
improve the law, the legal system and the administration of
justice" language in Canon 7(A)(5) makes the identification
Page 186
of prohibited political activity an even more difficult task.
To use that approach would mean the prohibition could never
apply no matter how controversial the measure at issue.Simply labeling activity or speech "political" or "not
political" is an ineffective means of resolving the issues
presented here, as amply illustrated by Judge Posner's opinion
in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224,
229 (7th Cir. 1993). At issue in that case was a proposal to
add a proviso to the judicial canon prohibiting judicial
candidates from announcing views "on disputed legal or
political issues." The additional language of the proviso
purported to allow the candidate to announce his or her views
on measures to improve the law, the legal system, and the
administration of justice, as long as the candidate did not
cast doubt on his or her ability to impartially decide issues
that would come before the court. Judge Posner opined that such
a proviso gives with one hand and takes away with the other.
Buckley, 997 F.2d at 229. That is, almost anything a judicial
candidate could say about "improving the law" could be seen as
casting doubt on his or her capacity to decide certain cases
impartially.[fn5] Moreover, Judge Posner rejected the proposition
that the canon could be saved by interpreting it to prohibit
comment only on issues that are likely to come before the
court, the very language of Washington's Canon 7(A)(5), at
issue in this case: "There is almost no legal or political
issue that is unlikely to come before a judge of an American
court, state or federal, of general jurisdiction." Buckley, 997
F.2d at 229. We find this analysis compelling.We are cognizant of the fact that Judge Posner was concerned
with restrictions on the conduct of a candidate for judicial
office rather than the conduct of a sitting judge.
Page 187
The distinction between a candidate for judicial office and a
sitting judge is that the candidate has an additional attribute
of free expression to weigh in the balance - that of the
electorate's right to be informed. Nevertheless, we believe the
opinion represents the best analysis of the ineffectiveness of
merely applying the label "political" to a judge's activity or
speech as a means to determine whether it is in violation of
the canons. Moreover, Judge Posner's reasoning embraces as its
touchstone recognition of the need to balance a judge's right
to free expression against the public's interest in having
judges impartially decide cases in accordance with the law. We
see no different analysis as applicable here.The foregoing illustrates the practical impossibility of
arriving at a firm definition of "political activity" by which
to evaluate the speech and conduct of judges and judicial
candidates. A just resolution of the question of whether the
CJC properly sanctioned Justice Sanders cannot be achieved by
merely placing the label "political" or "not political" upon
his activities and then approving or disapproving of them
accordingly. Such an approach leaves unanswered the important
question of whether the speech is nonetheless protected by the
First Amendment, regardless of whether it is political or not
political, controversial or not controversial, partisan or
nonpartisan. The proper means by which to resolve the question
presented is that utilized in Buckley, namely to identify those
rights and interests at stake on both sides of the controversy
and then to strike a balance between those rights and interests
that conflict.The competing interests at stake here are the government's
interest in a fair and impartial judiciary, a judge's interest
in the right to express his or her views, and the need for the
free expression of those views in a system wherein members of
the judiciary are elected to office by the vote of the people.
The interest embodied in Canon 1 of the Code of Judicial
Conduct calls upon judges to preserve the integrity and
impartiality of the judiciary by establishing,
Page 188
maintaining, and enforcing high standards of judicial conduct.
Without question, this interest is compelling. Kaiser, 111
Wn.2d at 288 (quoting Morial v. Judiciary Comm'n of the State
of La., 565 F.2d 295, 302 (5th Cir. 1977) ("`The state's
interest in ensuring that judges be and appear to be neither
antagonistic nor beholden to any interest, party, or person is
entitled to the greatest respect.'")); see also Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 848, 98 S. Ct.
1535, 56 L. Ed. 2d 1 (1978) (Stewart, J., concurring) ("There
could hardly be a higher governmental interest than a State's
interest in the quality of its judiciary.") (quoted in Stretton
v. Disciplinary Board of the Supreme Court, 944 F.2d 137, 142
(3d Cir. 1991)); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 956 (Ky.
1991) ("There can be no question that the state has a
compelling interest to protect and preserve the integrity and
objectivity of the judicial system."). However, this interest
must be measured against the interest of a judge in exercising
his or her rights under the First Amendment to speak freely.A judge does not surrender First Amendment rights upon
becoming a member of the judiciary. See Kaiser, 111 Wn.2d at
284; cf. In re Donohoe, 90 Wn.2d 173, 181, 580 P.2d 1093 (1978)
(attorneys). Courts have frequently recognized the First
Amendment rights possessed by a candidate for political office.
For example, the United States Supreme Court has stated: "The
candidate, no less than any other person, has a First Amendment
right to engage in the discussion of public issues and
vigorously and tirelessly to advocate his own election[.]"
Buckley v. Valeo, 424 U.S. 1, 52, 96 S. Ct. 612, 46 L. Ed. 2d
659 (1976). Other courts have also recognized this. See, e.g.,
American Civil Liberties v. Florida Bar, 744 F. Supp. 1094,
1097 (N.D. Fla. 1990) "[A] person does not surrender his
constitutional right to freedom of speech when he becomes a
candidate for judicial office. A state cannot require so
much."). We see no reason why the same principles should not
apply to speech by a sitting judge, albeit with somewhat less
force. In a system such as Washington's in which judges are
Page 189
elected, they are, in effect, always seeking reelection. If a
person does not completely surrender his or her right to
freedom of speech upon becoming a candidate, then we cannot
expect the candidate to do so once elected to judicial office.Each of these competing interests is of great
significance. In the words of Judge Posner, "only a fanatic
would suppose that one of the principles should give way
completely to the other[.]" Buckley, 997 F.2d at 227. To permit
the governmental interest in an impartial judiciary to prevent
a judge from speaking on any issue that has proponents on both
sides or that might come before the bench essentially gags the
judge.[fn6] Thus, "the principle of impartial justice under law is
strong enough to entitle government to restrict the freedom of
speech of participants in the judicial process, . . . but not
so strong as to place that process completely outside the scope
of the constitutional guaranty of freedom of speech." Buckley,
997 F.2d at 231.To achieve the requisite balance, the state must
establish a compelling interest and demonstrate that any
restriction is narrowly tailored to serve that interest.
Stretton, 944 F.2d at 141; see also Brown v. Hartlage,
456 U.S. 45, 53-54, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) ("[T]he
First Amendment surely requires that the restriction be
Page 190
demonstrably supported by not only a legitimate state interest,
but a compelling one, and that the restriction operate without
unnecessarily circumscribing protected expression."). Where, as
here, a restriction not only affects the speaker's right to
free speech, but also can result in disciplinary action to the
speaker, the restriction must be subjected to even stricter
scrutiny. J.C.J.D. v. R.J.C.R., 803 S.W.2d at 955.Justice Sanders has not challenged the constitutionality of
the canons on their face, only as they have been applied to his
conduct as reflected in the record of this case. Thus, the
strict scrutiny required can be satisfied by clear and
convincing evidence of conduct that threatened or compromised
the integrity or appearance of impartiality of the judiciary.
That burden of proof has not been met.
There is nothing in the record that would permit us to
construe Justice Sanders' conduct as an express or implied
promise to decide particular issues in a particular way, or as
an indication that he would be unwilling or unable to be
impartial and follow the law if faced with a case in which
abortion issues were presented. And, notably, Justice Sanders
did not remain at the rally after making his brief remarks and
thus did not join the anti-abortionists in their support of the
numerous legislators who spoke in favor of the passage of
"pro-life" legislation and the attainment of a "pro-life" state
government. Rather, he left immediately following his brief
statement.Canon 2
Canon 2(B) of the Code of Judicial Conduct provides:
Judges should not allow family, social, or other
relationships to influence their judicial conduct or
judgment. Judges should not lend the prestige of
judicial office to advance the private interests of
the judge or others; nor should judges convey or
permit others to convey the impression that they are
in a special position to influence them. Judges
should not testify voluntarily as character
witnesses.The CJC concluded that Justice Sanders "violated Canon
Page 191
2(B) by improperly lending the prestige of his office to a
particular organization engaged in advancing the interest of
one side of a political controversy." CJC Conclusion 3. We
cannot agree.Most importantly, and similar to our view of the proper
application of Canon 1, application of Canon 2 to a
circumstance involving traditional concepts of free expression
begs the very question at issue: What is the balance between
the public's legitimate expectations of the judiciary's
integrity and impartiality, whether financial or ideological,
and the judge's right to free expression? In this circumstance,
Canon 2 does no more than express particularized concerns more
generally expressed in the broad principles of Canon 1.While we do not reach the issue, we also question whether
Canon 2(B) applies at all to the facts of the present case. The
acts of Justice Sanders at issue here do not appear to fall
within the type of conduct at which Canon 2(B) is directed. The
canon addresses a judge's use of his or her office to obtain a
financial or other advantage, either for himself or herself
personally or for a third party. The comments to the canon in
the American Bar Association Model Code of Judicial Conduct
illustrate this. They state that it would be a violation of
Canon 2(B) "for a judge to allude to his or her judgeship to
gain a personal advantage such as deferential treatment when
stopped by a police officer for a traffic offense. Similarly,
judicial letterhead must not be used for conducting a judge's
personal business." Comment to Canon 2(B), ABA Model Code of
Judicial Conduct (1990). The canon also applies to the conduct
of a judge lending the prestige of judicial office for the
advancement of the private interests of others. Thus, "a judge
must not use the judge's judicial position to gain advantage in
a civil suit involving a member of the judge's family. In
contracts for publication of a judge's writings, a judge should
retain control over the advertising to avoid exploitation of
the judge's office." Comment to Canon 2(B), ABA Model Code of
Judicial Conduct (1990). The canon also
Page 192
prohibits a judge from initiating the communication of
information to a sentencing judge or probation or corrections
officer. Comment to Canon 2(B), ABA Code of Judicial Conduct.Decisions of courts that have construed this canon provide
additional illustrations of the type of conduct prohibited by
Canon 2. For example, the court in In re Kiley, 74 N.Y.2d 364,
546 N.E.2d 916, 547 N.Y.S.2d 623 (1989), found that a judge
violated this canon by speaking to an assistant district
attorney regarding the disposition of a case in which the
judge's friend was the defendant and explaining to the
assistant district attorney the friend's life circumstances. In
Wilson v. Judicial Retirement and Removal Comm'n,
673 S.W.2d 426 (Ky. 1984), the court found a violation based on a judge's
use of his judicial office to benefit a close friend by
improperly signing a temporary restraining order to prevent the
seizure of the friend's property. And, in In re Murray, 92 N.J. 567,
458 A.2d 116 (1983), a part-time municipal judge was found
to have violated Canon 2(B) (and Canon 1) by sending a letter
to another judge seeking preferential treatment for his former
clients.The foregoing demonstrate that speaking at a rally such as
March for Life in the manner in which Justice Sanders spoke is
arguably not the sort of conduct at which Canon 2(B) is aimed.
A judge's appearance and speech at a rally is not sufficiently
akin to a judge's use of his or her judgeship to gain an
economic or other advantage, either for themselves or for
another individual, such as, for example, the dismissal of a
traffic ticket or the granting of parole or a more lenient
sentence, so as to allow Canon 2 to serve as a basis for
sanctioning Justice Sanders.A judge's right of free speech is subject to limitation by
the Canons of Judicial Conduct. However, those limitations must
not be interpreted in the individual case to go so far as to
permit sanctioning speech and conduct that does not clearly and
convincingly lead to the conclusion that the words and actions
call into question the integrity and impartiality of the judge.
The conduct in this case, brieflyPage 193
appearing at a rally to thank supporters and to express a
belief in the sanctity of human life, does not rise to that
level.The decision of the Judicial Conduct Commission is reversed.[fn7]
WEBSTER, BAKER, KENNEDY, SWEENEY, HOUGHTON, BECKER,
BRIDGEWATER, and HUNT, JJ., concur.[fn1] One member of the CJC determined that an admonishment, rather
than a reprimand, was the appropriate discipline, but in all
other respects agreed with the majority's findings and
conclusions. [Back to text][fn2] Canon 7 in its entirety provides:
(A) Political Conduct in General.
(1) Judges or candidates for election to judicial office
shall not:(a) act as leaders or hold any office in a political
organization;(b) make speeches for a political organization or
nonjudicial candidate or publicly endorse a nonjudicial
candidate for public office;(c) solicit funds for or pay an assessment or make a
contribution to a political organization or nonjudicial
candidate;(d) attend political functions sponsored by political
organizations or purchase tickets for political party dinners
or other functions, except as authorized by Canon 7(A)(2);(e) identify themselves as members of a political party,
except as necessary to vote in an election;(f) contribute to a political party, a political
organization or nonjudicial candidate.(2) During judicial campaigns, judges or candidates for
election to judicial office may attend political gatherings,
including functions sponsored by political organizations, and
speak to such gatherings on their own behalf or that of another
judicial candidate.(3) Judges may contribute to, but shall not solicit funds for
another judicial candidate.(4) Judges shall resign from office when they become
candidates either in a primary or in a general election for a
nonjudicial office, except that they may continue to hold
office while being a candidate for election to or serving as a
delegate in a state constitutional convention, if they are
otherwise permitted by law to do so.(5) Judges should not engage in any other political activity
except on behalf of measures to improve the law, the legal
system or the administration of justice.(B) Campaign Conduct.
(1) Candidates, including an incumbent judge, for a judicial
office:(a) should maintain the dignity appropriate to judicial
office, and should encourage members of their families to
adhere to the same standards of political conduct that apply
to them;(b) should prohibit public officials or employees subject
to their direction or control from doing for them what they
are prohibited from doing under this canon; and except to the
extent authorized under Canon 7(B)(2) or (B)(3), they should
not allow any other person to do for them what they are
prohibited from doing under this canon;(c) should 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.(2) Candidates, including incumbent judges, for a judicial
office that is filled by public election between competing
candidates shall not personally solicit or accept campaign
contributions. They may establish committees of responsible
persons to secure and manage campaign funds and to obtain
public statements of support. Such committees may solicit
campaign contributions and public support from lawyers and
others. Candidates' committees may solicit contributions no
earlier than 120 days from the date when filing for that office
is first permitted and no later than 60 days after the final
election in which the candidate participated. Candidates shall
not use or permit the use of campaign contributions for the
private benefit of themselves or members of their families.
Candidates shall comply with all laws requiring public
disclosure of campaign finances, which may require knowledge of
campaign contributions. When an unsolicited contribution is
delivered directly to the candidate, receipt and prompt
delivery of the contribution to the appropriate campaign
official is not prohibited.(3) An incumbent judge who is a candidate for office without
a competing candidate may obtain public support and campaign
contributions in the manner provided in Canon 7(B)(2). [Back to text][fn3] At the time of the court's opinion in Staples, Canon 7(A)(5)
was numbered Canon 7(A)(4). [Back to text][fn4] The court in Staples ultimately relied on the "on behalf of
measures to improve the law, the legal system or the
administration of justice" portion of Canon 7(A)(5) to dispose
of the question presented to it. [Back to text][fn5] An example offered by Judge Posner is illustrative: If the
judge "announced boldly that he did not think juries should be
used in most civil cases, he could be thought to be casting
doubt on his capacity to preside impartially at civil jury
trials, to rule on motions for directed verdict in such trials,
to conduct a fair jury voir dire, to administer the rules of
evidence in jury trials, and to decide on proposed jury
instructions." Buckley, 997 F.2d at 229. [Back to text][fn6] In criticizing the reach of the canon prohibiting judicial
candidates from announcing their views on "disputed legal or
political issues," Judge Posner illustrated how it reached far
beyond preventing only speech by which a candidate could
compromise his or her impartiality and effectively gagged the
judicial candidate:[The judicial candidate] 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.Buckley, 997 F.2d at 228 (citation omitted). The same can be
said about the overly broad reach of a canon imposing
restrictions on the speech of sitting judges. [Back to text][fn7] Because of our disposition of these issues, we decline to
address Justice Sanders' arguments that Canon 1 and Canon
7(A)(5) are unconstitutionally vague, or his argument that the
CJC erred by denying him access to discovery and certain other
information he claims was necessary for him to receive a fair
hearing. With respect to the latter argument, we note that
Justice Sanders failed to raise these issues at the time he
filed his appeal from the CJC's decision and failed, both at
that point in the proceedings and during oral argument before
this court, to demonstrate any prejudice to him arising from
the alleged error by the CJC with respect to the discovery
matters. [Back to text][Return to Doug Schafer's Election Home Page] * * *