Judicial Campaign Oversight Committees' COMPLAINT HANDLING in the 2006 Elections: Survey and Recommendations
Fortune, William, White, Penny J., Judicature
Other than candidates' self restraint, judicial campaign oversight committees serve as the only barrier against the "Barbarians at the Gate"
Young mother with photo of child. "He was adorable. Stevie had just turned three when he was beaten and murdered. The Andrews decision let him go free after serving just a third of his sentence. If Justice Alexander hadn't voted for that decision this wouldn't have happened."
Washington 2006 - John Greon ad.
"Louis Butler worked to put criminals back on the street. Like Ruben Mitchell who raped an 1 1-year-old girl with a learning disability. Butler found a loophole. Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?"
Wisconsin 2008 - Mike Gableman ad.
Small child with teddy bear saying "Michael Gableman's ads are scaring me. Call Michael Gableman and tell him to stop scaring me and other kids."
Wisconsin 2008 - Louis Butler ad.
"Nine years ago a viscious thug stabbed and repeatedly raped a pregnant woman leaving her and her unborn child to die. Renaldo Adams was sentenced to die. But now, thanks to Justice Drayton Nabors, Adams is off death row."
Alabama 2006 primary - Tom Parker ad.
"Learn more about Tom Parker and his ties to liberal trial lawyers."
Alabama 2006 primary - Drayton Nabors ad.
"Why has Sue Bell Cobb attacked Drayton Nabors? Sue Bell Cobb has taken money from liberal trial lawyers. And who does she support? John Kerry."
Alabama 2006 general - Drayton Nabors ad.
These statements, and many similar ones, made by incumbents and challengers, are becoming common in state judicial elections. Though arguably distasteful and inconsistent with the role of a neutral, independent judicial officer, they are not prohibited. After the decision in Republican Party of Minnesota v. White,1 these statements are likely not even unethical. They are instead protected by the First Amendment and as such beyond governmental restriction.
In White the Supreme Court struck down an ethics provision that prohibited candidates for judicial office from "announcing their views on disputed legal and political issues." In its aftermath, lower courts, judicial ethics bodies, and state supreme courts have eliminated restrictions on judicial speech and conduct beyond what the White decision required. The result has been the onset of a new environment in judicial campaigns, an environment that is often beset with negative advertising, contentious campaigns, and undignified behavior.
The post-White climate not only allows, but arguably encourages, judicial candidates to go for the jugular, prompting campaign statements that come strikingly close to predicting future rulings as well as those that unfairly, and sometimes untruthfully, criticize an opponent's character. But while the High Court's decision took away the power of the government to curtail judicial speech that is rancorous and unseemly, the decision did not tie the hands of those who wish to promote more honorable judicial campaigns. In his concurring opinion, Justice Kennedy offered this advice to those who desire to advance the interests of judicious campaigning and improve the conduct of candidates for judicial office:
If Minnesota believes that certain sorts of candidate speech disclose flaws in the candidates credentials, democracy and free speech are their own correctives. The legal profession, the legal academy, the press, voluntary groups, political and civic leaders, and all interested citizens can use their own First Amendment freedoms to protest statements inconsistent with standards of judicial neutrality and judicial excellence. Indeed, if democracy is to fulfill its promise, they must do so. They must reach voters who are uninterested or uninformed or blinded by partisanship, and they must urge upon the voters a higher and better understanding of the judicial function and a stronger commitment to preserving its finest traditions.2
Judicial campaign oversight committees provide one means by which democracy seeks to fulfill its promise of assuring a fair and impartial judiciary. Described by some as a "countermeasure"3 to White, judicial campaign oversight committees are not totally an advent of White. In the late 1970s, a rash of aberrational conduct by judicial candidates in California led to the creation of committees whose purpose would be to oversee and address inappropriate conduct during judicial campaigns.
These early campaign oversight committees served in an advisory capacity, hearing complaints about unfair or untruthful advertising and encouraging ethical campaigning. Within a few years, the need for such oversight spread to other states where the war for the bench was being waged between plaintiffs' tort lawyers and business interests. In many states, the raucous tenor of judicial elections demanded that a forum be created where unfair advertising by the candidates could be challenged and addressed.4
The U.S. Chamber of Commerce's efforts to elect pro-business judges5 coincided with the Supreme Court's decision in White. The coalescence opened the door-at least halfway-for unbridled campaigning in judicial races. With judicial candidates free from traditional restraints, judicial campaign oversight committees are "one countermeasure currently being tested" to assure that judicial elections are distinguishable from raw, political, contests influenced by special interests and campaign contributions.6
In addition to addressing issues in current judicial elections, some argue that judicial campaign oversight committees will establish, over time, an acceptable across-the-board "culture and climate" for judicial elections.7 The result would be the preservation of a respected and independent judiciary; to achieve such a highly desirable result the American Bar Association encourages the creation of judicial campaign oversight committees.8
What exactly is a judicial campaign oversight committee? And how might it curb abuses in judicial campaigns that undermine the independence of and the public's support for the American judiciary?
The judicial campaign oversight committee serves three primary functions: educating candidates at the beginning of the campaign about relevant judicial canons and campaign finance regulations; reviewing campaign materials in advance and answering candidates' questions about campaign communications or tactics; and, as a last resort, publicly disclosing any instances of misconduct or referring complaints to the official judicial discipline entity.9
By performing these three functions, committees provide a mechanism by which judicial campaigns may be advised, monitored, and, at least informally, regulated.10
In 2006, a handful of judicial campaign oversight committees in states with judicial elections undertook to educate and inform judicial candidates early in the election cycle. In addition, several received and responded to complaints regarding judicial campaigns. Based on information contained in reports to the National Ad Hoc Advisory Committee on Judicial Campaign Oversight, we surveyed, by email and/or phone, representatives of those committees that reported handling complaints in the 2006 election cycle; the purpose was to gather information that might be of use to campaign oversight committees in 2008 and future years.11
We received information from the following committees that dealt with complaints in the 2006 election cycle: Alabama, Florida (Dade County), Illinois (state); Kentucky, Louisiana, Maryland, Minnesota (Hennepin County); New York (Erie County), New Mexico, Nevada, Ohio (Columbus Bar Association), and South Dakota. In addition, we received information from two committees that did not report complaints in 2006 but that had dealt with complaints in prior cycles: Illinois (Cook County), and Washington (King County).
Committees are either "official" or "unofficial." An official committee is created by the state, usually by the state supreme court, and is authorized to discipline judicial candidates who violate the canons of judicial ethics. Louisiana is an example of a state with an official committee. Although some unofficial committees have state connection (in the nature of financial support or member appointment) they do not discharge a state function and are therefore not considered state actors.12
Most of the committees surveyed are unofficial. There is a "tilt toward unofficial committees"13 because unofficial committees are free to "protest statements inconsistent with standards of judicial neutrality and judicial excellence,"14 even if the statements are protected by the First Amendment. An official committee, on the other hand, speaks for the state and therefore must refrain from criticizing candidate statements that are protected by the First Amendment, as interpreted by the Supreme Court in Republican Party of Minnesota v. White.
1) Source of complaints.
Most complaints come from candidates, though all committees consider citizen complaints as well. Most committees are receptive to complaints against outside interest groups, but no committee reported responding to such activity in the 2006 election cycle. Most committees would act on a complaint by a committee member. Most do not actively solicit complaints from citizens, although Kentucky did so in 2006 through distribution of a brochure and by public speaking. Some committees publicize their role to groups of lawyers, and all committees communicate with judicial candidates, advising them of the committee's role and providing the candidates with the committee's operating procedures.
2) Campaign agreements.
Most committees ask candidates to sign a campaign agreement (sometimes called a pledge or an affirmation). By web site posting or press release, or both, committees favorably publicize candidates who sign the agreement.
3) Agreements between candidates.
At least two committees (Alabama and Illinois (state) ) invite candidates in a particular race (and their staffs) to a joint meeting to review procedures and to sign an agreement to campaign in an ethical and dignified manner. This procedure is feasible if the committee's oversight is limited to a small number of races at any one time.
4) Receipt of complaints.
Committees report various ways in which complaints are received. A complaint form (available on the website) is useful. All committees require that complaints be in writing and some require that the complaint be signed. No responding committees require that complaints be sworn. Some committees allow complaints to be filed by email, but others require them to be mailed, faxed, or handdelivered. One committee accepts emails but requires a follow-up signed complaint. One committee has special rules for processing anonymous complaints, while another states that anonymous complaints will not be considered.
5) Screening of complaints.
Several respondents said that committees need to authorize a person (or persons), perhaps the committee chair, to dismiss complaints that are frivolous or address matters outside the committee's jurisdiction.
Committees established by or in conjunction with county bar associations exercise jurisdiction over races within their counties. State-wide committees might limit jurisdiction to certain races; for example the Illinois state committee exercises jurisdiction only over supreme court and court of appeals races. Most committees purport to be receptive to all types of complaints about unfair campaigning. However, Illinois (state) and Columbus, Ohio, limit jurisdiction to advertising (broadly defined).
7) Types of complaints.
It appears that most complaints are about alleged factual misrepresentations in campaign literature, websites, etc. Committees have not experienced a rush of complaints about candidates appearing to promise results. In 2006 (and 2007) the Kentucky committee considered such complaints and took action against candidates who appeared to be suggesting that they would decide cases on inappropriate grounds-in 2007 the candidates' literature advertised that they were "pro-life" and favored "faith based solutions."
The issue of how to conduct an investigation is clearly a problem if the underlying facts are in dispute. Few committees have investigators on staff; thus the task of investigating falls on committee members. In Kentucky and Maryland the chair appoints a subcommittee to investigate and report; other committees apparently investigate or not depending on the circumstances. Bade County (Florida) says that it does not investigate and Columbus, Ohio, says it does not attempt to verify facts in ads. It may be impossible to investigate complaints arising late in the election cycle-one committee said it reached the merits of the controversy after the election was over.
Some committees (Erie County, New York, for example) require that the parties keep the matter confidential until and unless the committee allows the matter to be publicized.
10) Decision making.
When, as is often the case, members live in different cities, the committee acts through conference calls and email exchanges. When the members are more localized, for example, when the committee is a county- wide bar committee, such as Erie County, the committee meets in person. An example of decision making by a state committee is Kentucky. In Kentucky, a report by the subcommittee is sent to the full committee with the subcommittee (or the executive committee) empowered to act if it is impracticable for the full committee to deal with the matter. Columbus, Ohio, obligates its members to be available every morning the week before an election; they are advised each afternoon whether to report the next day.
The Columbus committee holds hearings at which both candidates are invited to appear. At the hearing, the committee has clips of the offending ads available for viewing. The committee deliberates after the hearing and decides whether to issue a public finding. Columbus is unique in this approach; all other committees said they meet and decide based on the parties' submissions and the investigation, if any.
11) Committee action.
Committees are most likely to take action when there is a material factual misrepresentation-it doesn't seem to matter whether the misrepresentation is about the opponent or the candidate. The unofficial committees purport to be willing to act to condemn ads that vilify an opponent without being factually inaccurate (a Willie Horton ad), but the committees did not indicate they had so acted. Committees also purport to be willing to condemn campaign quasi-promises (i.e. running as a "pro-life" candidate) but, except for Kentucky, no responding committee indicated it had done so.
All committees reported that they asked the offending candidate to make amends-by correcting or discontinuing advertisements, and, if necessary, disavowing advertisements. Committees also reported sending letters to candidates that could be publicized. Several committees (Kentucky, Illinois) reported issuing press releases "as a last resort." The Kentucky committee issued strongly worded press releases condemning unfair 11th hour television ads by two candidates (both lost). In addition, some committees state they would report egregious conduct to the disciplinary authority, and one committee (Maryland) reported that it had done so.
13) The rapid response/11th hour complaint problem.
Most respondents recognize the need to have a process in place to deal expeditiously with complaints received in the last days of a campaign. One committee reported that, without a rapid response plan, it was unable to deal with a serious complaint before the election. As noted, Columbus, Ohio, requires committee members to be available every morning of the last week before the election. Candidates are aware that the committee is able to and will act expeditiously on complaints..
14) Committee impact on judicial campaigning.
Without exception, active committees believe that oversight committees positively influence judicial campaign behavior. For example, the Dade County, Florida, committee responded that it has deterred inappropriate campaigning and its members believe it is an extremely worthwhile activity. There is an incentive to sign the campaign agreement and reap the favorable publicity that signing brings. The agreement establishes normative conduct and imposes restraint; and the committee is the cop on the corner that deters candidates from doing what they might otherwise do to win.
1. Committee rules and procedures should be readily available.
The committee's membership, rules, procedures, and complaint form should be available on its website, or linked to a bar website. Committees should refer to the website on all correspondence and literature.
2. Committees should communicate with candidates.
Committees should send all candidates a copy of rules, procedures, and the complaint form as soon as the filing deadline passes. During the election cycle, they should communicate with candidates on other matters, for example to commend candidates who sign the fair campaign agreement, and to warn candidates of the danger in responding to special interest group questionnaires.
3. Committees should ask candidates to sign an agreement to campaign fairly.
Committees should ask all candidates to sign an affirmation (or agreement) to campaign in a way that reflects the dignity and integrity of judicial office and the independence of the judiciary. The 2006 Alabama campaign agreement is typical.
The actions of candidates for judicial office affect the integrity and independence of our judicial system, reflecting on both the Alabama judicial system and the State of Alabama. Therefore, it is important that judicial election campaigns be conducted in such a way that enhances the candidate's reputation, brings credit to the individual, and reflects the dignity and integrity of judicial office and the independence of the judiciary.
Canon 7, Alabama Code of Judicial Conduct sets minimum standards for campaigns, but the Committee believes judicial candidates should aspire to a level of campaign conduct that reflects their respect for the dignity and integrity of judicial office and the independence of the judiciary.
In keeping with these principles and objectives and in order to promote public confidence in both attorneys and judges, I hereby agree to conduct my campaign in accordance with the Alabama Code of Judicial Conduct. I further agree to disavow advertisements that use false or misleading information and/or accusations to impugn the integrity of the judicial system, the integrity of a candidate, or erode public trust and confidence in the independence and impartiality of the judiciary.
Other examples of campaign agreements are available from the National Ad Hoc Advisory Committee on Judicial Campaign Oversight.15
Committees should list on their websites, or otherwise publicize, the names of candidates signing the agreement. Signing candidates reap favorable publicity; those who don't sign might be penalized by the voters. For example, in 2006, the incumbent chief justice of the Alabama Supreme Court refused to sign the agreement. The challenger did sign and called on the chief to campaign fairly and ethically. The committee issued a press release stating in part that
The agreement asks that the candidate conduct his or her campaign in a manner that reflects the integrity and dignity of judicial officer... . The Committee continues to encourage all candidates who have not previously signed to do so. In so doing, they affirm to the citizens of Alabama that they will conduct their campaigns in a manner befitting the judiciary and the office they seek.
The incumbent, who refused to sign the agreement, was unseated by his challenger.16
An agreement encourages candidates to campaign ethically and provides a reason for committee action against candidates who violate their agreements. The Kentucky Judicial Campaign Conduct Committee (KJCCC) issued a press release on October 11, 2006, criticizing the conduct of supreme court candidate Rick Johnson, who had signed the campaign agreement. "We think Judge Johnson's view of judicial campaigning is off the mark, and not in keeping with the campaign agreement that we offered to candidates this summer-an agreement he signed." Johnson lost the election.17
4. Committees should process complaints promptly.
Committees should have an intake process to enable the committee to respond quickly to a complaint, preferably within 24 hours. There must be an intake person or persons to whom complaints are directed. If feasible, the complaint should be completed on line with automatic posting to the person or persons charged with intake responsibility. The complaint should be in writing with some form of verification.
5. Committees should authorize a person to dismiss non-meritorious complaints.
Committees should designate a person who can dismiss non-meritorious complaints without further inquiry. In Louisiana, for example, the chair of the committee is empowered to dismiss summarily complaints that do not allege facts that would constitute a violation of any canon that falls within the Committee's oversight jurisdiction.18 In Maryland, the co-chairs have authority to dismiss complaints after "conferring with committee members as necessary to determine whether there is a basis for further inquiry."19
6. Committees should decide their jurisdiction in advance of the campaign.
Before the campaign begins, committees should decide the races (and types of campaigning) in which they will entertain complaints. The committee responses to the survey reveal a great deal of variation on this issue. Local committees (Dade County, Florida, for example) consider only local races. While most reporting committees do not restrict the kinds of complaints within their jurisdiction, some consider only complaints about campaign advertising. An example is the Illinois State Committee, which exercises jurisdiction only over campaign advertising in supreme court and appellate court races. Similarly, the Columbus (Ohio) Bar Association committee exercises jurisdiction only over campaign advertising in local races; the committee screens ads for candidates who agree to pre-publication screening, and hears complaints against ads alleged to be unfair.
7. Committees should decide how and whether to investigate complaints.
Prior to campaigning, committees should decide whether and how they will investigate complaints and resolve disputes about the facts. Most of the committees report that they attempt to investigate, usually by assigning the task to committee members.20 However, a committee with limited resources might reasonably conclude that unless the issues can be decided on the basis of the complaint and the response (and the offending advertisement, if that is the basis of the complaint) that the committee will decline to act.21
8. Committees should determine in advance how decisions are to be made.
Committees should decide what constitutes a quorum, when and where meetings are to be held, and whether members can be present by telephone conference call (and how to set such calls up). If it is impractical for the full committee to meet, the committee should authorize a subcommittee to act (with a report to the full committee).22
9. Committees should have in place procedures for handling 11th hour complaints.
It is essential that committees have a procedure for acting and responding quickly. The Columbus Bar Association requires committee members to be available for a meeting at a set time every day for the 10 days preceding the election. It is strongly recommended that committees emulate the Columbus approach-having the decision makers (whether the full committee or a subcommittee) available to meet in person or by telephone conference call at set times in the days immediately preceding the election. Trying to resolve matters by email or exchanged phone messages is not satisfactory.
10. Committees should attempt to reach a consensus on what is fair and what is unfair.
Committees should attempt to decide, in advance, what constitutes "false or misleading information and/or accusations that impugn the integrity of the judicial system, the integrity of a candidate, or erode public trust and confidence in the independence and impartiality of the judiciary."23 Specifically, committees should consider whether an advertisement that suggests, but does not promise, that the candidate is committed to an interest group's position, "erodes public trust and confidence in the independence and impartiality of the judiciary."24 Committees should also consider whether a stronglyworded attack ad, for which there is some basis, "impugns the integrity of a candidate," and whether a truthful statement about a judge's decision "impugn(s) the integrity of the judicial system" if the statement preys on the public's ignorance of the law.25 Committees should decide what they will do if candidates exaggerate or distort their qualifications for judicial office.26
11. Committees should decide what they will do to stop or remedy unfair campaigning.
Committees benefit from having a graduated scale of responses to unfair campaigning. The following "graduated scale" is drawn from the responses to the survey: first, a committee should ask the offending candidate to make amends-which might mean stopping or changing an ad or disavowing ads that have been run. If the candidate refuses to take remedial action, or if remedial action would be ineffective, the committee might issue a letter that can be publicized by the offended candidate. In extreme cases, the committee should consider issuing a press release condemning the offensive campaign tactics.
Unfair and undignified advertising causes the public to believe that judges are no different than other politicians. Campaign statements that commit or appear to commit a candidate to rule in a particular way undermine the democratic promise of an independent judiciary. Other than the candidates' self restraint, judicial campaign oversight committees serve as the only barrier-and that a flimsy barrier-against the "Barbarians at the Gate"-the forces that seek to undermine the tradition of dignified elections and an independent judiciary not committed to campaign promises and special interests. Communities and states facing judicial elections without effective committees would do well to draw on the experiences of the committees summarized in this article and the recommendations that follow. The importance of creating new judicial campaign oversight committees and maintaining existing ones could not be more paramount.
Editor's note: For more information about judicial campaign oversight committees, visit wuw.judicialcampaignconduct.org.
1. 536 U.S. 765 (2002).
2. Id. at 795 (Kennedy, J., concurring).
3. David B. Rottman, Conduct and Its Oversight in Judicial Elections: Can Friendly Persuasion Outperform the Power to Regulate?, 21 GEORGTOWN J. LEGAL ETHICS _____ (issue 4) (2008) (citing Roy A. Schotland, Elective Judges' Campaign Financing: Are State Judges' Robes the Emperor's Clothes of American Democracy, 2 J.L. & POL. 57, 93 n.92 (1985)).
4. Id. at 110-11.
5. Terry Carter, Boosting the Bench, 88 A.B.A.J. 29-32 (2002). The U.S. Chamber put $10 million into the 2000 judicial races in Alabama, Mississippi, Ohio, Michigan, and Illinois, and was gearing up for a similar effort in 2002.
6. Rottman, supra n. 3.
7. National Ad Hoc Advisory Committee on Judicial Campaign Conduct, EFFECTIVE JUDICIAL CAMPAIGN CONDUCT COMMITTEES: A How-TO HANDBOOK, at iii (National Center for State Courts, 2004).
8. American Bar Association, Ensuring Judicial Independence in the 21st Century: Judicial Campaign Conduct Committees, at www.abanet.org/ judind/resourcekit/conductcomm.html, 2007.
10. Beyond the scope of this paper is a discussion of the advantages and disadvantages of "official" or state-sponsored and "unofficial" or volunteer committees. David Rottman discusses the differences in his article, supra n. 3, and concludes that "[o]n balance, the world of judicial elections now favors the unofficial oversight committees that rely entirely on the reputations of their members, who include diverse community leaders." The authors of this article agree with Mr. Rottman's conclusions. see discussion of official and unofficial committees in text infra.
11. The survey instrument is available from the authors. Some of the committee representatives were interviewed by phone; the questions and responses generally followed the questions in the email survey.
12. Rottman, supra n. 3.
14. 536 U.S. 765, 795 (2002) (Justice Kennedy concurring). See also the concurring opinion of Justice Souter in New York State Board of Elections v. Torres, 128 S.Ct. 791, 803 (2008). "Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates."
16. Judicial Campaign Oversight Digest, National Ad Hoc Advisory Committee on Judicial Campaign Oversight, July, 2007, pp. 1-2.
17. Al Cross and William H. Fortune, Kentucky 2006 Judicial Elections, 55 DRAKE L. REV. 637, 647 (2007).
18. Report of the Louisiana Judicial Oversight Committee, Fall 2006 (document on file with the authors).
19. Sally Rankin, Court Information Officer, Maryland Judicial Campaign Conduct Committee, email November 14, 2007 (document on file with the authors).
20. E.g., Kentucky and Maryland.
21. E.g., Nevada and Dade County, Florida.
22. E.g., Kentucky Judicial Campaign Conduct Committee procedures (on file with the authors).
23. The Alabama Campaign Conduct Committee agreement.
24. E.g., The Kentucky committee's October 11, 2006 press release condemning supreme court candidate Rick Johnson's public statements about abortion, gay marriage, and prayer in schools. Cross and Fortune, supra n. 17, at 647.
25. One example is the attack on an Alabama Supreme Court justice who followed a binding decision of the United States Supreme Court and voted to set aside the death penalty for a man who committed murder while a juvenile.
26. The Maryland committee acted in several cases in which the candidate's literature allegedly suggested the candidate was already a judge. While stopping short of issuing a press release, the Kentucky committee condemned by letter a judge who campaigned as "judge of the year," without making it clear that the honor had been bestowed five years earlier.
is a law professor at the University of Kentucky College of Law (firstname.lastname@example.org)
PENNY J. WHITE
is an associate professor of law and director of the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law. (email@example.com)…
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Publication information: Article title: Judicial Campaign Oversight Committees' COMPLAINT HANDLING in the 2006 Elections: Survey and Recommendations. Contributors: Fortune, William - Author, White, Penny J. - Author. Journal title: Judicature. Volume: 91. Issue: 5 Publication date: March/April 2008. Page number: 232+. © American Judicature Society Nov/Dec 2008. Provided by ProQuest LLC. All Rights Reserved.