From the 2006 News Archive
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Professor Sherrilyn Ifill Reports Proposed Standards for Judicial Campaign Conduct

Ethical code offered for judicial elections

By Caryn Tamber
Daily Record Legal Affairs Writer
(Reprinted with permission)

Just because the Supreme Court has said judicial candidates have free-speech rights doesn’t mean they should say whatever they want, according to a new group that wants Maryland judicial candidates to adhere to a voluntary code of ethics.

The Maryland Judicial Campaign Conduct Committee, a group composed mostly of prominent attorneys, yesterday released a set of standards for those running for circuit court judge.

The seven rules prohibit candidates from, among other things, making statements about how they will decide a case, speaking in an "inflammatory, sensational or abusive" manner about an opponent, and, for challengers, using the title "judge" in a way that suggests they are already on the bench.

The standards are entirely voluntary and the committee has no enforcement power, but it plans to publicize the names of candidates who agree to follow the rules. People may report suspected violations of the rules to the committee. The committee may decide to investigate suspected violations; the results will be made public.

At a news conference yesterday to unveil the standards, Court of Appeals Chief Judge Robert M. Bell said they will "bring a new dignity, or at least return to the dignity that once was the case" in contested judicial elections.

Several states have created similar committees and standards in the wake of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White. In that case, the high court held that the First Amendment was violated by Minnesota’s prohibition on judicial candidates announcing their views about disputed issues.

But "free speech must be qualified by self-restraint," said committee Co-chairman Stephen H. Sachs, a former Maryland attorney general and past U.S. Attorney for Maryland. He shares the chairmanship with George Beall of Hogan & Hartson, who followed Sachs as U.S. Attorney for Maryland.

‘Judicial elections are different’
Although the committee members have various opinions on the institution of contested judicial elections, Sachs said, they are "absolutely unanimous in believing that judicial elections are not and should not be like elections for legislative offices."

In fact, the committee’s credo is, "Because judicial elections are different."

The committee’s members are volunteers but there is a full-time staff member whose salary is paid by the judiciary. The committee’s printing costs are funded through grants from the Maryland Bar Foundation; its office space in the Clarence M. Mitchell Jr. Courthouse in Baltimore is an in-kind donation.

After the news conference, Sachs said the group’s formation does not mean that past candidates for judge in Maryland have "violated" the new standards. There have been "vigorous campaigns," but in setting out rules for campaign conduct, the committee is "not talking about recent Maryland history," he said.

University of Maryland School of Law professor Sherrilyn A. Ifill, who serves as the committee’s reporter, said Maryland has not seen the "really egregious" violations of judicial campaign ethics that other states have experienced.

But the campaign chairman for four Baltimore County judges running for election this year said he believes his candidates’ challenger is violating at least one of the new standards. The challenger, Arthur M. Frank, has put out campaign materials that imply he is already a judge, said the chairman, Dana Williams. (Some of Frank’s materials read, "People’s Choice for Judge Arthur Frank, with "Judge" and "Frank" set in much larger type than the other words.)

Williams said his candidates Judges Mickey J. Norman, Robert E. Cahill Jr., Timothy J. Martin and Judith C. Ensor will pledge to adhere to the committee’s standards.

"My judges are willing to sign anything requested to agree to abide by these standards, welcome the opposition not only signing onto it but doing it in practice, and feel that it would make this a much more honorable campaign between the parties, between the candidates," Williams said.

Challengers’ point of view
Frank said he’s not sure if he will agree to the standards. His major problem with the committee, he said, is its assumption that "judicial elections are different." The standards are good but should not apply just to judicial races, he said.

Frank also faulted the committee for "trying to change the rules in the middle of a campaign" and said the members "asked for no input from anybody that has run against the sitting judges."

From a challenger’s point of view, he said, the committee could have gone further by restricting sitting judges’ ability to "twist the arms of lawyers" to contribute to their campaigns, Frank said.

Several other judges who are standing for election this year said they could not comment on the standards because they had not yet had time to read them.

Standards for contested judicial elections
Note: Commentary on these standards, a list of committee members and a form for those who want to report a violation may be found on the Maryland Judicial Campaign Conduct Committee’s Web site, www.mdjccc.org

1. A candidate for judicial office shall be familiar with, and subscribe to, the Maryland Code of Judicial Conduct (in particular Canons 3 and 5) and the Maryland Rules of Professional Conduct (in particular Rule 8.2). [These rules deal with judicial candidates’ obligation to refrain from publicly prejudging cases.]

2. 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.

3. 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.

4. 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.

5. 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, religion, national origin, sexual orientation or socioeconomic status, nor shall campaign communications invoke invidious stereotypes to suggest that age or disability, in and of themselves, constitutes a lack of competence or qualification.

6. 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.

7. 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.

Source: The Maryland Judicial Campaign Conduct Committee


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Copyright © 2014, University of Maryland Francis King Carey School of Law. All Rights Reserved