Throwback Thursday

10 years ago this month:

  • Adopting the findings of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly admonished a judge for releasing a relative on her own recognizance.  In the Matter of Council (New Jersey Supreme Court May 3, 2010).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s order, based on a stipulation, publicly reprimanding a judge for changing a defendant’s sentence after the defendant stated he intended to request a trial de novo.  In re Ridge (Utah Supreme Court May 12, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for comments to 2 female attorneys.  In re Henry, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct May 14, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for delay in 2 cases.  In re Sheldon, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 14, 2010).

 

A sampling of recent judicial ethics advisory opinions

  • A judge may consult about adjudicative responsibilities with another judge, individually or on a listserv, as long as he does not receive factual information that is not part of the record and makes an independent decision in the matter.  Michigan Opinion JI-149 (2020).
  • As long as the judge does not discuss any pending or impending cases, a judge presiding over a dependency/delinquency docket may meet with attorneys working for Children’s Legal Services, without other stakeholders, to discuss docket management, scheduling issues, and expectations for motion practice, but it would be prudent for the judge to invite all stakeholders to the meeting.  Florida Opinion 2020-5.
  • A judge is not disqualified from cases involving the city prosecutor even though their children are schoolmates and friends outside of school when she and the prosecutor have no interaction other than scheduling visits for their children to see each other.  New York Opinion 2019-161.
  • While a lawsuit challenging the legitimacy of such arrests in New York’s courthouses is pending or impending, a town justice must not lobby the town board to adopt a policy prohibiting civil immigration arrests in the town court.  New York Opinion 2019-135.
  • Judges may attend school programs to generally educate parents and students about truancy-related issues and court processes.  Judges should not participate as volunteer “judges” in school-sponsored truancy intervention programs in which the judge engages directly with specific at-risk families or appears to “preside” over dockets.  Judges may not be members of a “truancy team” to assist a particular family or review the details of truancy issues in specific cases.  North Carolina Opinion 2020-1.
  • A judge may attend an event honoring black female judges if the event is not also a fund-raiser.   Florida Opinion 2020-4.
  • Judges must not publish their own charitable contributions on social media.  Judges may support charitable organizations on social media.  A judge who is on a charitable organization’s boards of directors may permit his position to be listed on the organization’s websites and social media.  If a judge has reservations about being associated with any charitable organization, the judge should avoid the association, including through social media and other digital media used by the organization.  Michigan Advisory Opinion JI-148 (2029).
  • A judge may not participate in a conference call organized by a federal legislator to plan an event on Capitol Hill in which individuals of a particular ethnic/cultural heritage gather and attend workshops on issues such as immigration, education, the workforce, the U.S. economy, and trade.  New York Opinion 2019-138.
  • A judge may personally appeal the denial of claims for health insurance coverage for her dependent child and may seek reversal of charges imposed by the child’s college.  New York Opinion 2020-18.
  • A district court commissioner may not accept a temporary position as a census taker/enumerator.  Maryland Opinion Request 2020-6.
  • A court attorney-referee may participate in a census education drive organized by his fraternity/sorority, provided his participation is strictly neutral, non-partisan, and informational.  New York Opinion 2019-149.
  • A judge may not serve on the executive committee of a regional Boy Scouts Council when several cases have been filed against the organization under the Child Victims Act and a member of the executive committee was recently charged with sexual abuse of children.  New York Opinion 2020-3.
  • A judge may serve as a board member on a local council of the Boy Scouts of America, but must resign if the council becomes involved in litigation.  A judge may mentor high school students through a program organized by a not-for-profit.  A judge may not serve on the board of a network of not-for-profit agencies when some of those agencies engage in advocacy, accept court referrals, or are eligible for appointments in the judge’s court.  New York Opinion 2020-55.
  • A town justice may attend public town board meetings as an observer.  New York Opinion 2019-158.
  • A judge may make a private monetary donation to a non-judicial candidate’s campaign even though the candidate must publish a public financial report of donations.  Michigan Opinion JI-145 (2020).
  • Judicial officers and judicial candidates may advertise their campaigns on personal or professional social media accounts but may not use those accounts to solicit or accept campaign contributions.  A judicial candidate’s campaign committee may solicit contributions through social media platforms.  Michigan Opinion JI-147 (2019).

 

Throwback Thursday

20 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Conduct, the Alaska Supreme Court publicly reprimanded a former judge for going outside the merit selection process to appoint as coroner an individual who had not applied during the application period; whose name was suggested by the chief justice; whom the judge knew to be a friend of the chief justice; on the basis of criteria (legal training and experience) that were not part of the position’s stated qualifications; and on terms that were significantly different from those advertised to the general public.  In the Matter of Johnstone, 2 P.3d 1226 (Alaska 2000).
  • Pursuant to the recommendation of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for (1) continuing to represent 2 clients in litigation after becoming a judge; (2) willfully failing to honor a subrogation agreement with a union for medical expenses paid on a client’s behalf; (3) failing to properly report attorney’s fees, referral fees, and income from a trust on the financial interest statement required to be filed with the secretary of state; (4) writing 59 insufficient funds checks between 1993 and 1997; (5) failing to pay federal income taxes in 1994; (6) placing the license tag for his Toyota on his Ford pickup truck; and (7) depositing client funds in a personal account rather than a trust account.  Judicial Discipline and Disability Commission v. Thompson, 16 S.W.2d 212 (Arkansas 2000).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge for accepting free tickets to baseball games from members of a law firm whose lawyers appeared before him.  Inquiry Concerning Luzzo, 756 So. 2d 76 (Florida 2000).
  • Pursuant to a stipulation, the Florida Supreme Court publicly reprimanded a former judge who, while a judge, had been routinely abusive, demeaning, and sarcastic to litigants, witnesses, and attorneys.  Inquiry Concerning Newton, 758 So. 2d 107 (Florida 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded her for serving as a referee for a township justice court and alternate municipal court judge while her membership status with the State Bar of Nevada was “inactive” because she had failed to obtain the required annual continuing legal education.  In the Matter of the Ungaro, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline suspended a part-time judge for 6 months and publicly reprimanded him for serving as a referee for a township justice court and alternate municipal court judge while his membership status with the State Bar of Nevada was “inactive” because he had failed to obtain the required annual continuing legal education.  In the Matter of Morrison, Findings of Fact, Conclusions of Law, Decision and Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2000).
  • Pursuant to the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) knowingly convicting a defendant who was charged with DWI of careless and reckless driving when the defendant had not been charged with that offense and the offense was not a lesser included offense; and (2) taking a guilty plea in the hallway.  In re Brown, 527 S.E.2d 651 (North Carolina 2000).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge for 6 months without pay for engaging in ex parte communications with employees of the county department of children and family services.  Office of Disciplinary Counsel v. Ferreri, 727 N.E.2d 908 (Ohio 2000).

 

Recent cases

  • With the judge’s agreement, the D.C. Commission on Judicial Disabilities and Tenure determined that a judge violated the code of judicial conduct by (1) making comments that were not germane to the disposition of a case to send messages to attorneys and the public; and (2) in a child custody case, failing to follow established procedures required by clear and unambiguous law and making comments that one of the parties interpreted as a threat and demonstration of his bias against her; the Commission concluded that no further action or sanction was warranted.  Re Christian, Determination and undertaking (D.C. Commission on Judicial Disabilities and Tenure April 20, 2020).
  • Approving a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for, in a dispute with county officials regarding benefit payments for the drug court coordinator, negotiating on the coordinator’s behalf in his capacity as judge and behind the scenes with the coordinator’s attorney and threatening the county auditor with contempt unless the coordinator was offered a substantial settlement.  In the Matter of Miller, Order (Indiana Supreme Court April 30, 2020).
  • Based on the judge’s admissions, the Montana Supreme Court suspended a judge for 30 days without pay for (1) failing to properly report that she employed H.W. as her nanny, babysitter, and/or office worker; denying H.W.’s employment status during the discipline proceedings; and making false and misleading statements to the University of Montana School of Law to preclude H.W.’s admission; (2) publicly endorsing 2 partisan candidates for non-judicial offices on her personal Facebook page; (3) contributing to a partisan candidate; (4) having endorsements from 2 partisan candidates and a political organization had on her campaign Facebook page; and (5) during her campaign, claiming 2 years of experience under the student practice rules as 2 years of law experience and giving herself credit for approximately 80 jury trials while she was a law clerk for a federal judge.  Inquiry Concerning Harada (Montana Supreme Court April 17, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) initiating, engaging in, and considering an ex parte communication with a deputy sheriff concerning a jail policy and practice related to the merits of a motion pending before him in a criminal case and failing to disclose the communication and (2) failing to report 16 cases to his administrative judge on his quarterly reports of cases pending more than 60 days without decision.  In the Matter of Carter, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for, during her 2018 campaign for election, (1) publishing a campaign advertisement and distributing campaign materials that gave the impression that she would consider revenue generation for the town in her judicial decisions and (2) liking or replying to crude Facebook posts by her supporters about her election opponent.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to attempted burglary in the second degree, a felony.  In the Matter of Cicale, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who had pled guilty to federal tax evasion charges.  In the Matter of Seedorf, Decision and order (New York State Commission on Judicial Conduct April 2, 2020).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge who resigned after the Commission alleged in a formal written complaint that, in September 2018, the judge had operated his motor vehicle while under the influence of alcohol and asserted his judicial office with the police officer at the scene in an attempt to avoid arrest or other adverse consequences.  In the Matter of Rebolini, Decision and order (New York State Commission on Judicial Conduct April 30, 2020).
  • Agreeing with the recommendation of the Board of Professional Conduct, which adopted findings of a panel based on the parties’ stipulations, the Ohio Supreme Court publicly reprimanded a judge for operating a vehicle while under the influence of alcohol and referring to her judicial office during the traffic stop.  Disciplinary Counsel v. Doherty (Ohio Supreme Court April 14, 2020).
  • Adopting the findings and recommendation of the Board of Professional Conduct, the Ohio Supreme Court suspended a former magistrate from the practice of law for 6 months, with the entire suspension stayed conditionally, for having a lengthy ex parte conversation with one party after the other party had left the courtroom following a hearing and discussing the evidence in case and her personal views on the absent party’s integrity, indicating how she intended to rule, making inappropriate comments about the parties’ religions, and using profanity; and failing to disqualify herself from the case after the ex parte communication.  Disciplinary Counsel v. Porzio (Ohio Supreme Court April 23, 2020).
  • Based on the findings and conclusions of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals suspended a magistrate for 90-days without pay, fined him $2,000, and reprimanded him for violating a state fishing regulation, displaying his court identification card to the Department of Natural Resources officers, his “belligerent and coercive behavior” toward the officers, and denying in a sworn statement during the investigation that he had acted in a disrespectful and coercive manner toward the officers.  In the Matter of Ferguson (West Virginia Supreme Court of Appeals April 22, 2020).

 

 

Throwback Thursday

25 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for eliminating the suspended portions of a sentence and immediately remanding a defendant to the custody of the sheriff to punish the defendant for his attorney’s announcement in open court that they would appeal the original sentence.  Letter to Evitts (Arkansas Judicial Discipline & Disability Commission May 24, 1995).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge for failing to decide a case for more than a year.  Letter to Reynolds (Arkansas Judicial Discipline & Disability Commission May 24, 1995).
  • The California Commission on Judicial Performance publicly admonished a judge who, at a second judge’s request, had allowed the second judge’s relative to attend traffic school after failing to complete it when first ordered to do so and had dismissed a failure to appear citation received by the same relative after the other judge indicated that he was responsible for the relative’s failure to appear and that he would take care of the inadequate muffler with which the relative had also been charged.  Public Admonishment of Bjork (California Commission on Judicial Performance May 30, 1995).
  • Adopting the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for writing, on his official court stationery, a character reference letter for a personal friend who was awaiting sentencing in federal court.  Inquiry Concerning Ward, 654 So. 2d 549 (Florida 1995).
  • Approving a stipulation, the Florida Supreme Court publicly reprimanded a judge who had been charged with DUI.  Inquiry Concerning Esquiroz, 654 So. 2d 558 (Florida 1995).
  • The Kansas Commission on Judicial Qualifications ordered a judge who had been arrested for and charged with driving under the influence of alcohol to cease and desist from any act or acts that could be found to violate the state law, including those relating to the consumption and use of alcoholic beverages.  Inquiry Concerning Beasley, Order (Kansas Commission on Judicial Qualifications May 4, 1995).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court publicly censured a judge for (1) for approximately 8 months after taking office, allowing his former law partner to use and/or share the court’s secretary/receptionist, telephone system, post office box, office supplies, and law library; (2) filing a candidate’s report that failed to list cash contributions of $2,300; (3) hiring a law clerk knowing that she was also working as an independent contractor for a private law firm and allowing her to do research for him in a case in which the firm had been counsel for the plaintiff/appellee; and (4) writing a letter on personal judiciary stationery to a U.S. District Court judge recommending leniency in the sentencing of a friend.  In re Decuir, 654 So. 2d 549 (Louisiana 1995).
  • Pursuant to the recommendation of the Judiciary Commission, the Louisiana Supreme Court removed from office a judge who had pled guilty to 1 misdemeanor count of failing to file a federal income tax return and was sentenced to a 12-month prison term.  In re Huckaby, 656 So.2d 292 (Louisiana 1995).
  • Pursuant to a report filed by the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court disbarred a former judge who had been found liable for fraud committed while a judge.  In re Cox, 658 A.2d 1056 (Maine 1995).
  • Adopting the findings of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge who, during a dispute with another driver over a parking space at a mall, accelerated his car and struck a security officer who had waved a third driver into the parking space.  In re Bradfield, 532 N.E.2d 711 (Michigan 1995).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for, instead of immediately scheduling a trial as the law requires when a defendant in a traffic case pleads not guilty by mail, routinely required those defendants to appear before him for pre-trial “conferences” without notifying the prosecuting authority.  In the Matter of Cavotta, Determination (New York State Commission on Judicial Conduct May 3, 1995).
  • Approving the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for (1) initiating a series of ex parte communications with law enforcement and court personnel concerning a friend’s son who had been taken into custody for breaking and entering a store, informing them that the juvenile was “a good kid,” asking for help on behalf of the juvenile, and stating that the matter was not one for court; and (2) initiating ex parte communications with a law enforcement officer concerning an automobile accident that resulted in charges being filed against the driver of a car in which the daughter of the judge’s friend was a passenger, expressing his opinion that the matter was civil rather than criminal and that if the case came before him he would so declare it, and suggesting to the officer that he reconsider his assessment as to fault.  In re Martin, 456 S.E.2d 527 (North Carolina 1995).
  • Approving the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court publicly censured a judge for comments he made in 2 rape cases.  In re Greene, 456 S.E.2d 878 (North Carolina 1995).
  • The Pennsylvania Court of Judicial Discipline removed a former judge from office and declared him to be ineligible for judicial office for violating laws that prohibit knowingly maintaining devices used for gambling purposes and knowingly permitting premises to be used for unlawful gambling.  In re Chesna, 659 A.2d 1091 (Pennsylvania Court of Judicial Discipline 1995).
  • The Wisconsin Supreme Court suspended a judge for 15 days without pay for remaining as a judge in a criminal case pending against a friend; expressing publicly, from the bench and on the record, his personal views concerning the criminal charge pending against his friend and similar charges pending in other cases; criticizing the gambling investigation in which he himself figured; failing to reveal that the defendant had contacted him; and misrepresenting that the defendant had not contacted him or sought special treatment.  In the Matter of Carver, 531 N.W.2d 62 (Wisconsin 1995).

 

Letter in support

Approving the findings, conclusions, and recommendations of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded in writing 5 judges for submitting a letter encouraging the Florida Department of Children and Families to award a contract to a particular vendor.  Inquiry Concerning Lederman, Caballero, Figarola, Pooler, and Ruiz (Florida Supreme Court March 26, 2020).  (The Court usually orders judges to appear before it for a public reprimand; a written reprimand is a less severe sanction, according to the Court.)

In March 2018, DCF initiated a competitive procurement process to award a contract for the lead agency for community-based care for the southern region of Florida.  The contract was potentially worth more than $500 million over 5 years.  2 non-profit corporations submitted proposals:  Our Kids of Miami-Dade and Monroe, Inc. and Citrus Health Network.  Our Kids had held the contract and served as the lead agency over the preceding several years.

In September 2018, Judge Lederman drafted a letter advocating that Our Kids be selected as the lead agency, which she intended to send to DCF.  She emailed the language to the 4 other judges and others, seeking additional signatories.  Eventually, a letter written on Judge Lederman’s judicial letterhead and signed by the 5 judges was sent to the interim director of DCF and the managing director of the southern region of DCF.  The letter endorsed Our Kids and concluded:  “We have worked with Our Kids and we have complete faith only in the Our Kids model of leadership.  When you select the agency please keep our voices in mind.”

In February 2019, the letter was mentioned in a local newspaper article entitled, “Alleged conflicts of interest roil $500 million child welfare fight.”  DCF terminated the competitive procurement process and restarted it.  There was no evidence that the judges’ letter affected DCF’s decision.  Our Kids and Citrus Health Network were again the only 2 competitors.  In April 2019, DCF awarded the contract to Citrus Health Network.

The Commission recommendation noted that, arguably, the judges could have written a letter “explaining their knowledge working with the provider in a much narrower context,” but concluded that the letter that was sent inappropriately placed the judges and the judiciary “in the position of appearing to advocate on behalf of one private entity over another.”  The Commission found that the language of the letter raised questions about the judges’ impartiality, noting that “the employees and vendors of the Lead Agency regularly appear in court assisting and advocating on behalf of clients of DCF, and the agency” and that “such an enormous and hotly contested contract award will almost certainly result in legal challenges, and likely even court proceedings” in the judges’ circuit.  The Commission emphasized that it did not believe that the judges had not been “motivated by any corrupt intent or design” and had intended “to protect the interests of the children and families served by DCF.“  However, it concluded, as the judges acknowledged, “their actions went too far in this instance.”

It is rare but not unprecedented for judicial discipline cases to involve more than 1 judge.

  • Based on conditional agreements for discipline, the Indiana Supreme Court (a) suspended 2 judges for 30 days without pay for appearing intoxicated in public, behaving in an injudicious manner, and becoming involved in a verbal altercation outside a White Castle restaurant and (b) suspended 1 judge for 60 days for, in addition, becoming involved in a physical altercation for which he was criminally charged and convicted. In the Matter of Adams, Jacobs, and Bell, 134 N.E.3d 50 (Indiana 2019).
  • Following a hearing on a complaint brought by the Judicial Inquiry Board, the Illinois Courts Commission (a) suspended 1 judge for 4 months without pay for presiding over cases in which the husband of a judge with whom he was having an affair represented a party without disclosing the relationship and for a pattern of deceptive conduct to hide the affair from the chief judge and (b) publicly censured the judge with whom he was having the affair for failing to take or initiate any appropriate disciplinary measures against him although she knew he was presiding over her husband’s cases. In re Drazewski and Foley, Order (Illinois Courts Commission March 11, 2016).
  • The New York Court of Appeals (a) removed a judge for delaying repayment of a $250,000 loan from his campaign manager, failing to disclose the loan on financial statements and loan applications, and giving misleading and evasive testimony to the State Commission on Judicial Conduct and (b) publicly censured a second judge, his brother who had co-signed the loan, for omitting it from financial statements and loan applications. In the Matter of Joseph Alessandro, In the Matter of Francis Alessandro, 918 N.E.2d 116 (New York 2009).

 

Renouncing third-party campaign statements

Comment 8 to Rule 4.1 of the 2007 American Bar Association Model Code of Judicial Conduct states:  “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.”  Approximately 17 states have adopted that comment.

Interpreting the provision, the West Virginia Judicial Investigation Commission advised that a candidate must disavow third-party/PAC statements that (1) include false or misleading statements about a campaign opponent; (2) “do not accurately reflect the duties and role of a judge;” or (3) “indicate that a judge or candidate is not neutral and detached but would be biased in favor of or against an individual, group or legal issue.”  West Virginia Advisory Opinion 2018-22.

In a subsequent advisory opinion, the Commission clarified a candidate’s obligation to respond to false campaign statements by third parties.  West Virginia Advisory Opinion 2019-15.  The Commission noted that “’minor inaccuracies’” do not make a statement false:  a statement is false only if it “’would have a different effect on the mind of the reader from that which the pleaded truth would have produced,’” quoting In the Matter of Callaghan, 796 S.E.2d 604 (West Virginia 2017) (2-year suspension without pay and $15,000 fine for a campaign flyer that portrayed his campaign opponent, the incumbent judge, partying at the White House with President Obama).

Instead, the advisory opinion explained, a candidate’s obligation to disavow a statement by a third party about the candidate’s opponent is not triggered unless:  (a) it is a statement of fact, not an opinion; (b) the fact is substantive and significant; (c) the statement is false or a material misrepresentation; and (d) the candidate knows about the statement and its falsity.  In other words, a judicial candidate must disavow statements about a campaign opponent made by a third-party or PAC if the candidate knows about the statement and knows that it is a false statement or a material misrepresentation about a substantive and significant fact, not an expression of opinion.  The Commission concluded that the candidate can meet the obligation to disavow by issuing a timely press release to area news media and promptly notifying the third party or PAC by letter to immediately stop disseminating the statement.

The West Virginia opinion relied in part on In the Disciplinary Matter Involving a District Court Judge, 392 P.3d 480 (Alaska 2017).  In that case, the Alaska Supreme Court advised that “a judicial candidate’s awareness of an independent campaign is not, by itself, enough to impose a duty to monitor and address the campaign’s statements.”  A contrary rule, the Court explained, would chill protected speech and force a “candidate to wade into the fray, creating tension with the candidate’s obligation to ‘maintain the dignity appropriate to judicial office.’”

However, even in the absence of an express provision in the code of judicial conduct (Alaska has not adopted the model code comment), the Court suggested that a judicial candidate may have a duty to publicly correct or repudiate false or misleading independent statements “to uphold judicial integrity and independence, avoid impropriety, or maintain dignity.”  The Court adopted an objective test for whether a judicial candidate’s failure to address a false or misleading statement by an independent supporter creates an appearance of impropriety:  whether the candidate took “’reasonable precautions to avoid having a negative effect on the confidence of the thinking public in the administration of justice.’”

In the case before it, the Court reversed a private admonishment by the Commission on Judicial Conduct and dismissed a complaint because it found that there was no evidence that the judge knew about the campaign materials at issue, which clearly disclaimed his involvement and were clearly attributed to a “Friends of [the Judge]” group.  The group had, for example, posted a social media advertisement that featured a digitally altered image of the judge tied to a stake and surrounded by flames with the caption:  “Witch Hunts are so 18th century.”