The Judicial Ethics Forum (JEF)

The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.

Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).

But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.

So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.