Kentucky Speaks On Judicial Campaigning
The Kentucky Supreme Court answered three certified questions from a federal district court concerning ethical restrictions on campaigns for judicial office
These canons were promulgated by this Court with the objective of complying with Section 117 of our Constitution requiring that “Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.” (Emphasis added.) We interpret this provision of the Kentucky Constitution as directing that Kentucky’s judicial elections be nonpartisan in truth and substance, and not merely in process and procedure by the superficial omission of a political party designation on the voting ballot. Accordingly, we provide the following certification of Kentucky law in response to the District Court’s questions.
The facts
Robert A. Winter, Jr., filed to run in the May 2014 primary election as a candidate for circuit court judge in the 16th Judicial Circuit (Campbell County). As part of his campaign strategy, Winter mailed brochures to registered Republican voters identifying himself as a registered Republican and, conversely, identifying his opponents as registered Democrats. After the brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) notified Winter that it had received complaints that his brochures violated the Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing suit in the District Court against the JCC challenging the constitutionality of Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning as a member of a political organization) and 5B(1)(c) (prohibiting judges or judicial candidates from making “false” or “misleading” statements). During the same election cycle,
Cameron Blau entered the race as a candidate for district court judge in the 17th Judicial District (Campbell County). Because Blau likewise intended to openly campaign as a Republican and send brochures likewise identifying himself as a Republican, in October 2014, Blau filed an intervening complaint to join Winter’s challenge to Canons 5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the constitutionality of Canon 5A(1)(b) (a judicial candidate shall not “act as a leader or hold any office in a political organization”). In his complaint, Blau stated that he wanted to send out brochures to potential voters identifying himself as “the only Republican candidate for Judge,” or “the Conservative Republican candidate for Judge” and identifying his opponent as “the Democrat candidate” or the “Liberal Democrat for Judge.” Blau also indicated in his complaint that he wanted to seek the endorsement of the local Republican Party, host events for the local Republican Party, and make political donations to members of the Republican Party.’ In a lengthy order preliminarily addressing the constitutionality of the canons under review (the Injunction Order), the District Court concluded that there was a likelihood that each of the canons at issue was unconstitutional, and granted Blau’s motion to prevent the JCC from enforcing the canons against him in the November 2014 election.
The third question dealt with the question whether an appointed judge could indicate that she was seeking “re-election.”
Key holdings
there is a vast difference between the permissible speech of a judicial candidate identifying herself as a member of a political party and the impermissibly deceptive conduct of representing herself as the nominee of a political party. The former statement would be true; the latter is by any standard, blatantly false. Canon 5A(1)(a) draws that distinction…There is no “Republican candidate” for that office; the assertion is materially false and misleading. See Canon 5B(1)(c) (prohibiting materially false statements). Political parties and factions do not select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a) merely recognizes and faithfully codifies this Constitutional reality…
Under the current state of affairs of modern American politics, the Republican Party is commonly regarded as occupying the conservative side of the political spectrum, and so the addition of the modifier “Conservative” is surplusage, doing nothing to dispel the implied falsehood that the candidate is running for Kentucky judicial office as the formal candidate of the Republican Party…
The statement by a candidate that his opponent is “the Democrat candidate for Judge” is an impermissible message to the voters. His opponent is not, in fact, the Democrat candidate for Judge. As previously explained, such candidates do not exist in Kentucky, and such a campaign message would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting materially false statements).
Question Two is answered thus
Consistent with the definition of “acting as a leader,” as just discussed, one who hosts an event for a political party is “acting as a leader” for the party. Merriam-Webster defines “host” as: “1 a: one that receives or entertains guests socially, commercially, or officially; b: one that provides facilities for an event or function . . . .” 1 ° Therefore, someone who provides the facilities for an event of a political party or officially receives the political party attendees is, indeed, acting as a “leader” of a political party. The “host” of an event, political or otherwise, uses the prestige of his or her name to promote the event and exerts a significant measure of control and authority over the event, more so, in our view, than the more passive political delegate function in Blauvelt. Perforce, a judicial candidate hosting a political event acts as a leader of that event and is, in turn, acting as a leader of the political party on whose behalf the political event is being held. Under Canon 5A(1)(b) that is prohibited conduct.
Question Three dealt with “knowing falsehoods” in judicial elections
A false statement is a statement that is not factually true in the normal sense; that is, an untrue utterance. For example, it would include such statements as: “I graduated first in my class” when the candidate did not; “I have won all of my cases as an attorney” when the candidate had not; “I was an officer in the military” when the candidate was not; or “my opponent was convicted of a drug offense” when the opponent was not.
The provision does not, however, cover expressions of opinion because expressions of an opinion do not implicate a statement that is not factually true. For example such statements as “Justice Stevens was the best Justice ever”; “Citizens United was the best decision ever”; or “my opponent is too liberal” are all expressions of opinion and not subject to Canon 5B(1)(c).
In summary, Canon 5B(1)(c) extends only to statements made during a campaign which are objectively factually untrue and do not extend to expressions of subjective opinions or innocuous campaign-trail “puffing” (“I am the most qualified candidate in the state.”)…
…when an incumbent judge uses the word “re-elect” as campaign stratagem to persuade the public that she acquired the office by the • popular vote of the people rather than as the appointee of a governor, its use is calculated to mislead and deceive the voters. Accordingly, we distinguish these informal, idiomatic usages and regard these journalistic references as irrelevant to our review.
The common understanding of the term “re-elected”means that the candidate has been elected once before rather than appointed.
Unanswered: What if the word “retained” was used?
Judge Noble concurred and dissented.
Coverage of the opinion here by the Associated Press from the Lexington Herald Leader, which described Justice Noble’s views
Justice Mary C. Noble dissented with part of the decision. She said she saw no distinction between a judicial candidate describing himself as the only Republican candidate and as a conservative. Neither should be permitted, she said in a separate opinion. Justice Samuel T. Wright III joined her.
“Our Constitution requires that judicial candidates be non-partisan candidates, and declaring oneself to be any kind of Republican (or Democratic) candidate adds partisanship to the actual candidacy, rather than stating in which political party one has membership,” Noble wrote.
(Mike Frisch)