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.”