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Judicial Campaign Missteps Flagged as Races More Intense

Nov. 2, 2021, 8:46 AM

Judicial candidates running more organized and aggressive races are facing professional sanctions for campaign tactics or behind-the-scenes maneuvering that wouldn’t raise eyebrows in a city council or mayoral run.

Courts and bar associations are moving against attorney challengers and sitting judges if they step out of line in their campaigns, a growing number of which are fueled by piles of outside cash that raise other ethical red flags.

An attorney in Ohio running for a judgeship received a public reprimand this year for alleging incorrectly in a campaign letter that her opponent moved to the county to get a court seat. Last year in Texas, an appeals court judge was sanctioned for allowing a political action committee to use his image on door hangs promoting his campaign.

And in Pennsylvania, where Tuesday voters are electing a new state supreme court judge in a race awash in millions of campaign donations, the state bar association reportedly ordered one candidate to revise an attack ad that crossed the line.

There’s a “long-term trend toward increasingly aggressive campaign tactics,” including attack advertising, and an “ongoing, steady stream” of judicial misconduct cases relating to elections including campaign statements, said Charles Geyh, an Indiana University law professor who specializes in judicial conduct and ethics.

Negative Tactics

Federal judges are appointed as are many state judges, including those on the appellate bench. But high court justices in 22 states and thousands of lower state, county and municipal judges, who most Americans are most likely to interact with, are elected and campaign for votes.

Today, anti-crime and sharp partisan sentiments run through campaigns up and down the ballot even though most state judicial elections are deemed nonpartisan. Judicial candidates appear to stumble when they mimic negative tactics used routinely by non-judicial candidates.

Unlike politicians, candidates for court seats are subject to ethics rules prohibiting misleading statements. Campaigns for judicial office “must be conducted differently from campaigns for other offices,” a comment to Rule 4.1 of the ABA’s model code of judicial conduct says.

“Judges don’t get to deliver the goods for their party. They have to respond to cases that are brought to them,” Michigan Supreme Court Chief Justice Bridget Mary McCormack said of the difference between a partisan elected official, like a mayor, and a judge who swears an oath to independent decision making.

Pressure to Win

McCormack said the campaign “volume has been turned up,” especially for state high court seats over the past 20 years. Experts noted that the pressure to win can lead to unethical campaigning, and negative tactics easily can backfire in judicial races.

Most judicial elections are local, and other missteps reviewed by Bloomberg Law in several large states over the past year mainly involve clumsy backroom politicking, familiar political exaggeration, and retail campaign shenanigans not tolerated by the judiciary.

For instance, a Florida lawyer who unsuccessfully challenged a judge for his seat in a 2018 primary election was reprimanded in May for allegedly trying to misrepresent his opponent during the campaign as favoring prosecutors and law enforcement.

“We write to place future candidates for judicial office on notice that this Court takes misrepresentations that cast a sitting judge in a false light seriously because of their potential to undermine confidence in the rule of law,” the Florida Supreme Court said.

In the case of the Ohio judge who accused her opponent of carpet-bagging, the state’s highest court said, “By repeating gossip about her election opponent without making any effort to verify the accuracy of her allegations, she acted with a reckless disregard of whether or not her statements were false.”

Even those not running can cross the line. Two Florida circuit judges were reprimanded this year for inserting themselves in outside races. One attempted to persuade an attorney to abandon her campaign against another judge or to run against a different incumbent instead. Another made unsolicited calls to acquaintances in support of a challenger in a county court race.

Concerns center on judicial independence.

Judges have to be independent while politicians aren’t expected to be, Judge David McKeague of the U.S. Court of Appeals for the Sixth Circuit said in 2018 in the case of a man who lost his constitutional challenge to state laws limiting fundraising and advocacy for judicial candidates. “If judicial candidates were permitted to fund-raise and campaign unfettered, the specter of actual corruption would loom large, and the erosion of public trust in the judiciary larger still,” McKeague said.

Money Influence

Money today can push ethical lines in judicial races. As part of the anti-crime and tort reform trends of the 1980s and 90s, the U.S. Chamber of Commerce and trial lawyers started pouring money into campaigns, fueling more hotly contested races and prompting judicial ethics entities to mete out discipline.

Geyh also said “issue orientation” of both partisan and non-partisan campaigns that outside, non-candidate spending has helped bring about caused the campaigns to start resembling traditional political elections.

The money spigot is still flowing freely, especially for state high court seats. More than $500 million has been spent on judicial races since 2000, according to a 2020 report from the Brennan Center for Justice detailing its latest figures.

Steve Leben, a former Kansas appeals court judge now with the University of Missouri-Kansas City School of Law, said his 2016 retention election—where voters pick whether a judge should be retained for another term—was notable for the “significant” spending that totaled more than $2 million on four candidates.

McCormack, who recalled her own race in 2012 when $18 million was spent with three seats up for grabs and control of the court in the balance, decried the impact of issue ads in judicial races that offer no context.

“The cost has been to undermine confidence in the courts’ decision making,” McCormack said.

The escalating intensity of judicial campaigns and escalating expenditures are factors that could result in heightened enforcement activity for election-related ethics violations, Geyh said. Incumbent judges trying to “protect their turf” may also play a role by going after challengers for ethics violations, he added.

Judicial Code

While rhetoric in judicial elections over the past decade has “ratcheted up” and the tone is less polite, more personal, and more dramatic than in past elections, they “fortunately still feature fewer falsehoods” overall, Keith Swisher said.

Campaigns are subject to the judicial code of conduct, but experts agree that there’s “more leeway” in some cases for campaign behavior. For instance, sarcasm is taboo in the courtroom but permissible on the campaign trail, said Swisher, a legal ethics professor at the University of Arizona Law in Tucson.

The code prohibits misleading campaign statements, but First Amendment challenges have resulted in allowing judicial candidates to announce their political and legal views on issues that may come before them.

Judging—not campaigning—is still the core function, and the code “appropriately focuses more on protecting, promoting, and policing that core function,” Swisher said.

The push of electoral politics against the guardrails of the judicial code is in play prominently on Tuesday in at least two states. In addition to the Pennsylvania Supreme Court race, Texas voters will weigh proposed constitutional amendments involving judicial elections.

One measure would tighten eligibility requirements ostensibly to exclude inexperienced political actors, while the other would grant a state commission power to discipline candidates for misconduct. The aim is to hold them to the same standard as sitting judges while campaigning.

Craig Enoch, an attorney in Austin and former state supreme court justice, isn’t sure what can be done at this point about the aggressive judicial campaign climate.

“I’m not sure there are enough rules in place to stop it,” Enoch said.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com; John Dunbar at jdunbar@bloomberglaw.com

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