Judge Not Responsible For Campaign Efforts Of Friends

The Alaska Supreme Court has dismissed charges against an unnamed judge

Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission’s admonishment and dismiss the Commission’s complaint against the judge.

The story after the judge declined to campaign

A close friend of the judge’s wife learned about the Council’s recommendation and decided to fund an independent campaign to support the judge’s retention. She was careful not to share her decision with the judge or his wife. A few weeks before the election she hired a local agent and told him “to put a face to the name and tell folks about [the judge]’s background and experience.” The agent registered an independent expenditure group called “Friends of [the Judge],” and his team produced mailers, billboards, social media advertisements, and a website for the campaign. The friend was the sole financial contributor, and the agent exercised nearly complete control over the campaign’s messaging.

The judge was kept ignorant of the independent campaign, and the judge had no control over the campaign’s activities. The friend stated that she “did not tell [ the judge or his wife] of [her] plans, did not involve them in any way in any of the campaign activities, did not solicit or seek their input, and did not request their review or approval of the plans or any materials.” Likewise, the agent said the judge had “no awareness or influence . . . . He didn’t approve anything that we put out there.” The agent did arrange to meet the judge in person and “snap[] a couple photographs” for the campaign, but the judge “seemed a little confused as to who [he] was.” The agent told the judge only that he was “a fan of [the judge] and [they had] mutual friends.”

Although the judge was aware that he had supporters, he was not aware that there was a campaign. The judge avoided campaigning himself but understood from his counsel that allowing an anonymous supporter to take his photograph would not be improper. He rejected all other requests, telling supporters who wanted to help that he was not involved in any campaigns.

Shortly after the election, the Commission initiated a complaint against the judge, alleging material misrepresentations in the items circulated by the campaign. The Commission later clarified that it was investigating the judge’s duty to correct the independent campaign’s alleged misrepresentations. The Commission focused its attention on three specific campaign items: a mailer, the website, and a social media advertisement…

The social media advertisement featured an image of the judge tied to a stake and surrounded by flames with the caption: “Witch Hunts are so 18th century.” The agent’s team had digitally altered the judge’s facial expression, added the stake and flames, and come up with the concept and text. The “witch hunt” image was used only online.

The court had the power to consider the merits

As a preliminary matter the Commission argues that we should not exercise our power of review over its informal private admonishments. The Commission makes three arguments: (1) the statute governing the Commission’s disciplinary authority does not contemplate our review of informal  admonishments; (2)informal admonishments are an important tool that will be compromised if they are subject to our review; and (3) an informal admonishment is not a sanction and therefore not a formal action to be reviewed. We are not persuaded.

The merits

We agree with the judge’s argument 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. Such a duty might force the candidate to wade into the fray, creating tension with the candidate’s obligation to “maintain the dignity appropriate to judicial office.”  Such a duty might also chill others’ protected speech in violation of the U.S. and Alaska Constitutions.

But we do not suggest that a judicial candidate’s failure to address a known third party misrepresentation would never violate a canon. There may be situations where a candidate must address an independent statement in order to uphold judicial integrity and independence, avoid impropriety, or maintain dignity…

This duty is “one of taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of the thinking public in the administration of justice.’ ”

The independent campaign produced a mailer and a website containing two prominent quotes. The Commission found that the quotes gave the false impression that another judge and the Commission endorsed the judge’s retention. Both the mailer and the website stated that they were “Paid for by Friends of [the Judge]” and that the communications were “not authorized, paid for or approved by the candidate.” As required by law, the disclaimer was placed so as to be “readily and easily discernible.”

We conclude that the judge had no duty to publicly address the quotes or these materials. We reject the Commission’s conclusion that the judge knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii); the record contains no evidence suggesting that the judge had knowledge of the mailers before they were distributed, let alone involvement or control in the selection of the quotes.

As to the witch hunt imagery

The independent campaign also produced a social media advertisement featuring an image of the judge tied to a stake with the caption, “Witch Hunts are so 18th century.” The Commission stated that the image was “inappropriate to the dignity appropriate to judicial office.” The judge agrees that the image was “clearly inappropriate” and that the independent group should not have used the image. However, the judge maintains that he did not see the image until well after the election.

We conclude that the judge had no duty to publicly address the image. There is nothing in the record to contradict his claim that he had no knowledge of the advertisement until well after the election; therefore he could not have knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii). We also see no appearance of impropriety; a reasonable person viewing the ad would not believe that the judge had authorized the image or was involved in its production merely because he was the image’s subject. And because the judge did not learn about the image until months after the election, he could not have taken any steps to avoid such an appearance and accordingly could not have violated Canon 2. The judge’s consent to be photographed did not give rise to a duty to seek out and monitor an independent campaign he could not legally control, let alone a duty to stop any independent group from publishing any image. The judge should not be admonished for his failure to publicly address a social media image which he had no duty to address and which he did not even know about until months after the election.

Complaint dismissed. (Mike Frisch)