Listed below are the seven Standards for the Conduct of Contested Judicial Elections. One standard (Standard I) enjoins all candidates to be familiar with the Judicial Rules and the Rules of Professional Conduct. Another (Standard VII) addresses campaign funding. The remaining Standards address various aspects of campaign communications that present the most pressing issues. MDJCCC will ask all candidates to subscribe to the Standards and to agree in writing to abide by them in their campaigns. MDJCCC will publicly identify candidates who have agreed to abide by the Standards.
I - Maryland's Rules
These Standards relate to contested judicial elections only.
These Standards are a voluntary code of conduct. MDJCCC encourages all candidates for judicial office -- whether incumbent or challenger-- to agree to conduct their campaigns in accordance with the Standards and their accompanying Commentary.
STANDARDS FOR THE CONDUCT OF CONTESTED JUDICIAL ELECTIONS
A candidate for judicial office shall be familiar with, and subscribe to, the Maryland Code of Judicial Conduct (in particular Rules 2.3 and 4.4) and the Maryland Rules of Professional Conduct (in particular Rule 8.2).
Commentary: The Maryland Code of Judicial Conduct provides in Rule 4.4(b) that an individual who is a judicial candidate for election or re-election “shall act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary and maintain the dignity appropriate to judicial office.” Candidates for election or re-election shall not, with respect to a case, controversy, or an issue that is likely to come before the court, “make a commitment, pledge, or promise that is inconsistent with the impartial performance of the adjudicative duties of the office” or make any “statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” Rule 4.4(d).
With respect to lawyers seeking election to judicial office, Rule 8.2(b) of the Maryland Rules of Professional Responsibility commands that a candidate for judicial office “shall maintain the dignity appropriate to the office and act in a manner consistent with the impartiality, independence, and integrity of the judiciary.” Rule 8.2(b)(1). “With respect to a case, controversy or issue that is likely to come before the court [the candidate] shall not make a commitment, pledge or promise that is inconsistent with the impartial performance of the adjudicative duties of the office.” Rule 8.2(b)(2).
Standards adopted by the Maryland Judicial Campaign Conduct Committee (MDJCCC) reflect the letter and spirit of these Rules.
A candidate for judicial office shall not make any statement concerning his or her views that might reasonably be understood to compromise his or her impartiality and objectivity with respect to a case that may come before the court.
Commentary: In Republican Party of Minnesota v. White, the Supreme Court struck down on First Amendment grounds judicial canons prohibiting “announcement” of a candidate’s position on disputed legal and political issues. The Supreme Court did not address the canons’ prohibition of candidate “promises” or “pledges” on such issues, which terms appear in the governing canons or rules of many states, including Maryland. Attacks on “promises” and “pledges” clauses, based on White, are being mounted in other states; many believe that those clauses are subject to White’s First Amendment rationale and will fall.
Standard II does not depend, however, on the formal enforceability of those provisions. The fact that campaign conduct may escape official sanction does not mean that such conduct is either desirable or acceptable in judicial elections. Adherence to Standard II, whether or not it is officially enforceable, is indispensable to protect every citizen’s right to neutral and impartial judges.
A practical consideration of judicial administration also informs MDJCCC’s judgment. An incumbent judge or challenger who can fairly be said to have committed him/herself to a point of view with respect to specific issues or causes (e.g. “Every ‘dead-beat dad’ should get a taste of a jail cell” or “first time drunk drivers deserve a sentencing break”) may prompt recusal motions to be filed in all such cases that come before the candidate, if elected. Such motions detract from the administration of justice.
The dialogue of judicial contests is not limited to purely non-controversial subjects. A challenger may certainly criticize the record of his incumbent opponent. Likewise an incumbent judge may question the qualifications of a challenger. The challenger or incumbent judge may, or may not, choose to respond. In each case, however, the candidate -– whether incumbent or challenger -- must take care to present his/her position with accuracy and dignity. Similarly, questions (some of which may have only tangential relevance to the judicial function) will be posed to candidates by the press, in candidate forums and in questionnaires distributed by civic groups. Again, candidates may choose to respond or not to respond. The candidate’s response must be temperate and consistent with the responsibilities of judicial office. The response must remind the audience that the touchstone of a judge’s responsibility, the oath that a judge is sworn to uphold, is objectivity and impartiality and that the candidate’s overarching responsibility if elected will be to apply the law to the facts as they unfold in the courtroom. A candidate should remember that, in the context of a judicial election, free speech can be easily abused and should avoid political statements that will undermine the candidate’s duty to be impartial if he or she is elected.
This Standard and its Commentary accurately reflect Maryland’s existing Rules and strike an appropriate balance between the value of free speech, the interests of voters and the necessity for a judiciary impartial in fact and in appearance.
A candidate for judicial office shall not knowingly make a false or misleading representation about his or her own qualifications, record or experience, or those of any other judicial candidate. A candidate shall communicate in a dignified manner and shall refrain from making inflammatory, sensational or abusive statements.
A candidate shall not authorize or encourage such communication by others and shall promptly and publicly disavow such communication should it be made by individuals or organizations that act in cooperation or coordination with the candidate’s campaign.
Commentary: Rule 8.2(a) of the Maryland [Lawyers’] Rules of Professional Conduct states that lawyers, including lawyer candidates for judicial office, “shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge…or of a candidate for election or appointment to judicial or legal office.”
Judicial candidates must be held to these high standards in order to protect the dignity and integrity of the judiciary. A judicial candidate should not make a literally accurate statement that is nevertheless misleading in context. Neither should a judicial candidate express an opinion about his or her opponent’s record or any other campaign issue without providing a reasonable factual basis for that opinion.
Sensational, abusive or inflammatory communications detract from the dignity and integrity of judicial office. A candidate for judicial office should communicate civilly and respectfully about all participants in the judicial system. Campaign communications that ridicule an opponent or suggest that an opponent should not serve as a judge because of matters unrelated to professional competency, experience or character, maximize the possibility that the perception of integrity of the courts will be damaged.
Rule 8.2(b)(4) of the Rules of Professional Responsibility prohibits a candidate for judicial office from “allow[ing] any other person to do for the candidate what the candidate is prohibited from doing.” Accordingly, Standard III also requires a candidate to disavow publicly and promptly communications that violate the Standard if made by individuals or organizations that act in cooperation or coordination with the candidate’s campaign. Although a candidate is under no obligation to disavow communications for which the candidate is not responsible, the candidate must be aware of, and monitor, communications from those affiliated with his or her campaign.
The following four examples illustrate conduct that would not violate Standard III:
On the other hand, the following four examples illustrate campaign communications that would violate Standard III:
A candidate for judicial office shall not use the title of an office not currently held by the candidate in a manner that implies that the candidate currently holds the office.
Commentary: Rule 4.4(d)(5) of the Code of Judicial Conduct forbids judges who are candidates for election or re-election to judicial office from knowingly, or with reckless disregard for the truth, misrepresenting their own identity or qualifications, the identity or qualifications of their opponent, or from making any false or misleading statement. A particular sub-category of misrepresentation that has long been problematic for judicial candidates is the use of the honorific, “Judge”, in such a way as to suggest to the voters inaccurately that a particular candidate for circuit court judge already is a circuit court judge. Such an approach is disingenuous and misleading and therefore impermissible.
A candidate for judicial office who is not currently a judge may not use the title “Judge” in such a way as to suggest that the candidate is a judge. There are various ways, some of them quite subtle, in which such a misleading impression can be communicated. For example, a bumper sticker or yard sign reading “ELECT as JUDGE JOHN SMITH,” with all words except the word “as” in huge type and the word “as” in such small type as to be unreadable by passing motorists, would impermissibly suggest that John Smith is a judge who is seeking election. Similarly, a photograph of John Smith wearing judicial robes would impermissibly suggest that John Smith is a judge seeking election. Whatever inventive technique might be used, if it would incorrectly suggest that a candidate for judicial office who is not a judge is a judge, it is impermissible.
A second and more difficult situation arises in the case of a current judge at a lower level of the judicial system who is running for office as circuit court judge. In this case, the honorific “Judge” accurately applies to the candidate, but its indiscriminate use in connection with a judicial campaign for circuit court could lead average voters to conclude incorrectly that the candidate is currently a judge of the circuit court who is seeking election or re-election. The fact that such a candidate is currently a judge, albeit on a lower court, is a fact that is relevant to disclose to the voters.
In this situation, every reasonable effort must be made to avoid giving the impression that the candidate is already a judge on the court to which he/she seeks election. For example, in the case of printed literature in which ample space exists to provide relevant information to the voters that the candidate is currently a judge at a different level of the judicial system, such information should be supplied.
Campaign communications shall not suggest that an opponent is not qualified or competent to serve as a judge because of the opponent’s race, sex, gender, religion, national origin, ethnicity, sexual orientation or socioeconomic status, nor shall campaign communications invoke invidious stereotypes to suggest that age or disability, in and of themselves, constitute a lack of competence or qualification.
Commentary: Appeals to bias or prejudice clearly undermine the integrity of the judicial system and should not be countenanced. It is appropriate to question, compare, and challenge the adequacy of a judicial candidate's professional abilities and experience. However, campaign communications that play to invidious stereotypes unrelated to a particular candidate’s ability or competence violate this Standard.
This does not mean that a candidate may not campaign on the basis that his or her campaign will promote diversity on the bench. In fact the judiciary –- and public confidence in the judiciary –- is enhanced by diversity. Such communications, nevertheless, shall remind voters that a judge, in the execution of his or her official duties, may not be a racial, gender, or political partisan. A judge must maintain both the fact and appearance of impartiality and independence, if elected.
The mandatory and paramount responsibilities of all Maryland judges are to “perform the duties of judicial office, including administrative duties, without bias or prejudice.” A judge shall not, by words or conduct “manifest bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” Rule 2.3. To the extent possible, a judicial candidates’ conduct should meet this standard. A judicial candidate’s campaign conduct similarly should not compromise the candidate’s present or future impartial performance of judicial duties.
A candidate must take particular care to ensure that visual campaign materials conform to the foregoing Standards and comport with the dignity and integrity of judicial office.
Commentary: Images -- photographs, graphics, cartoons, etc. -- communicate a far more vivid and powerful message than does text alone. Precisely because visual imagery is so powerful, however, it may transform an otherwise appropriate campaign message in a judicial election into a sensational or inflammatory appeal that compromises the dignity of the judicial office.
The distinction between words and pictures in the context of contested judicial elections is a fundamental one. The use of visual materials -- depending on such factors as the nature of the material and its layout -- may be entirely appropriate and dignified, but their use should be carefully scrutinized by the candidate. A workable rule of thumb for a judicial candidate considering the use of visuals in campaign materials is that the more powerful and evocative those visuals are, the more suspect they may be. In the context of contested judicial elections, therefore, the old advertising rubric “one picture is worth a thousand words” should strike a note of caution.
A judicial candidate must not only abide by Maryland’s election laws governing campaign fundraising but must take all reasonable steps to ensure that campaign fundraising does not undercut the dignity or impartiality of judicial office.
Commentary: Campaign fundraising can disserve the dignity of judicial office and may, in some instances, compromise the appearance of judicial impartiality. The Maryland Code of Judicial Conduct recognizes the practical necessity of raising campaign funds in contested judicial elections. Rule 4.4. A judicial candidate must be mindful, however, of the corrosive impact on the repute of the judiciary of the impression that money is a weight on the scales of justice.
Maryland Judicial Campaign Conduct Committee, Inc.
P.O. Box 10427 Baltimore, Maryland 21209