Committee becomes more concerned about partisanship in state Supreme Court race that is constitutionally nonpartisan

For more information, contact Vice Chair Howard Roberts at hroberts@upike.edu or Secretary Al Cross at al.cross@uky.edu.

The Kentucky Judicial Campaign Conduct Committee, which in August warned about partisanship in nonpartisan judicial elections, is freshly concerned because a candidate for a state Supreme Court seat has scheduled a day-long tour with the congressman whose district includes the entire Supreme Court district.

State Rep. Joseph Fischer has announced that he and U.S. Rep. Thomas Massie will make four stops in the 6th Supreme Court district Thursday, Nov. 3. All but three of the counties that are entirely in Massie’s district are also in the district in which Fischer is running. That district comprises Boone, Bracken, Campbell, Carroll, Gallatin, Grant, Kenton, Oldham, Owen, Pendleton, Shelby and Trimble counties.

Fischer’s announcement includes his campaign logo that identifies him as “the conservative Republican.” That identification was one of the reasons that the Committee issued a statement Aug. 10 saying that while judicial candidates have the First Amendment right to publicize their political affiliations and their records in public service, Fischer was placing too much emphasis on his partisan affiliation. Now he is doubling down on that, publicizing an upcoming tour of the district with the Republican who has represented the area in Congress for nearly 10 years.

We believe this further undermines the independence and integrity of the judiciary, which are essential elements of the American system of government. Unfortunately, many voters do not realize that Kentucky’s judicial elections are nonpartisan. When judicial campaigning becomes partisan, it can mislead voters into thinking they are voting in a partisan election. The objective of a nonpartisan election is to separate the judiciary from political entanglements.

The Kentucky Judicial Campaign Conduct Committee is a private, nonprofit, nonpartisan organization that was created to safeguard the integrity of the judiciary in Kentucky judicial elections. It was formed partly in response to court decisions that expanded the free-speech rights of judicial candidates, and the prospect of campaigns that would make nonpartisan judicial elections more like those for executive and legislative offices, which are mostly partisan.

The committee has focused its public statements on campaigns that used false or misleading information to persuade voters, and believes its work has discouraged such campaigning. Now it voices concern about partisanship, out of fear that this trend will undermine the independence of the judiciary, and thus undermine its integrity. Citizens should be able to expect their disputes that end up in court will be decided by an impartial tribunal that is not influenced by political affiliations.

One of our members, retired Supreme Court Justice Bill Cunningham, warned voters this summer that partisan campaigning for judicial seats “should put the voter on notice that there is a political group of people who have an interest in having one of their own as your judge.” We believe that when judicial candidates emphasize their affiliation with a political party, they erode long-held American principles of judicial independence and fairness. Politics is a necessary aspect of our system of government, but there’s a reason judicial elections are nonpartisan. Justice shouldn’t be political.

Committee makes statement regarding a complaint

The Kentucky Judicial Campaign Conduct Committee has issued the following statement.

This matter came before the committee as the result of a letter from Joe Bilby, a candidate for Franklin County circuit judge. Mr. Bilby alleges that incumbent Judge Phillip Shepherd stated in an advertisement that he would not accept political contributions from any political party or any elected official or their political action committees. Mr. Bilby states that Shepherd has in fact accepted contributions from “numerous” politicians “who do not hold office at the moment” and “at least one political candidate who is running for a partisan office in 2022.”

Judge Shepherd responds that he has received “over 1,100” donations to his campaign and that he works hard to identify contributions from political parties or elected officials and returns those, so identified, to the donors. He stated that he had overlooked the two contributions cited by Bilby, which were from “out of towners” who were not identified “in our review process.” He has now refunded those contributions.

Under the circumstances, it does not appear that Judge Shepherd’s advertisement is either false or misleading. Therefore, all concur that no further action by the committee is warranted.

Anthony M. Wilhoit
Chair

Committee cautions candidates about misleading or false third-party posts on their social-media platforms

A printed copy of this statement was mailed to all judicial candidates.

The Kentucky Judicial Campaign Conduct Committee, which has called out false and misleading campaigning by judicial candidates since 2006, is cautioning this year’s candidates that they are ultimately responsible for material posted on their social-media pages and should remove information that is false or misleading.

The committee is an independent, nonpartisan group of lawyers, retired judges and other citizens. It receives complaints and issues statements when warranted. Its concern about social media was prompted by a complaint from state Court of Appeals Judge Susanne Cetrulo against her opponent in the Nov. 8 election, Robert Winter. Both live in Edgewood, in Kenton County.

Cetrulo complained to the committee about a comment on Winter’s personal page, below a reposting from his campaign page about a campaign event. The commenter wrote, “This ruling by KY Appeals Court Judge Susanne Cetrulo cements her pro-abortion standing,” and linked to a decision made by a three-judge panel of the court, of which Cetrulo was a member. She said it was “a post that is completely false” and “I have had no such case and this is very hurtful to me personally and as a candidate.” The original post is dated July 22 and her complaint was received July 29.

The decision cited by the commenter upheld an Anderson Family Court order supporting a parent’s desire to have his two children vaccinated over the objections of the other parent holding joint custody. The objecting parent cited her religious objection to vaccination on grounds that aborted fetal cells were used in the design and manufacture of the vaccines, while the other parent “believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist” and wanted to follow the pediatrician’s advice and CDC guidelines that the children be vaccinated. The family court judge said the children’s health and welfare outweighed the religious belief of one parent. It made no findings of fact on the question of fetal cells, and the Court of Appeals panel said unanimously, “We cannot say the family court's factual findings lacked the support of substantial evidence, and we cannot conclude that it made any legal error in reaching its decision.”

Regarding the abortion issue, Dr. Aleena Banerji, a member of the American College of Allergy, Asthma & Immunology Covid-19 Vaccine Task Force, told Healthline that fetal cells were obtained from elective abortions in the 1970s and 1980s and have been grown as cell lines in laboratories for 30 to 40 years to be used in vaccine research because viruses need human cells in which to replicate. Banerji said neither Pfizer nor Moderna used fetal cell lines in development or production of its coronavirus vaccines, so there are no fetal cells in the vaccine, but the companies did use the cells to make sure the vaccine worked before beginning clinical trials in humans. She said the Johnson & Johnson one-dose vaccine used a fetal cell line in development and manufacturing.

The Kentucky Judicial Campaign Conduct Committee believes that the characterization of the Court of Appeals ruling as a “pro-abortion decision” stretches the truth to the breaking point, and that the comment is at least misleading if not false.

“A candidate for public office may not have a legal duty to monitor what others put on his or her personal or campaign pages; however, he or she certainly has an ethical duty to ensure that those pages are not used to propagate false or misleading information. Failure to do so renders the candidate an abettor in the propagation of such information,” said retired Court of Appeals Judge Anthony Wilhoit, chairman of the committee.

We advised Mr. Winter of our opinion and gave him the opportunity to reply. He argued that he does not have the right to control comments on his Facebook pages, but he in fact does have that right, and the ability to do so; the cases he cited dealt with social-media accounts of public officials, not those of candidates. He also said that the state Canons of Judicial Conduct, which apply to judicial candidates, “prevent me from discussing cases that could be brought before me.” This case has already been disposed of by the Court of Appeals, but Winter said that “similar facts or issues” may come before the court and it might “be required to review past cases, like this one, in making a decision.” He said any action by him regarding the comment would amount to making his own comment on an issue that might come before the court. We do not see it that way. We believe that removing the comment would simply be a tacit acknowledgement that its truth or falsity are in dispute, and another option would be to add a comment expressly saying so.

Winter concluded, “Comments like this are made every day. There are many judicial decisions rendered on which reasonable minds may differ. Censoring statements we do not agree with is not the answer.”

That comment illustrates the difficulties that social media pose for campaigns and voters. In the case of Facebook, users can set their pages to allow comments only from friends, or friends of friends, or those approved by the owner of the page – or by anyone, as Winter’s pages allow. If a comment remains on the page, or is not disputed, the owner of the page may be endorsing it by implication, or readers of it may make that inference.

The Kentucky Canons of Judicial Conduct say that “a judge or judicial candidate shall not . . . knowingly, or with reckless disregard for the truth, make any false statement of material fact.” That is in Paragraph A of Canon 4.1. Paragraph B says, “A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph A.” In its comment on the canon, the Kentucky Supreme Court says, “When an independent third party has made unwarranted attacks on a candidate's opponent, the candidate may disavow the attacks, and request the third party to cease and desist.”

We believe “reasonable measures” for judicial candidates include monitoring of their social media pages for material that is false or misleading, and removal of such material. Comments on social-media posts may be a matter of opinion, but leaving them on a page can be seen as an implicit endorsement of that opinion. We believe judicial candidates should be aware of these risks, and that is why we are issuing this statement.

Committee makes statement about partisan campaigning in nonpartisan elections

For more information, contact Chair Anthony Wilhoit, 859-753-5599 or tony.wilhoit35@gmail.com  

The Kentucky Judicial Campaign Conduct Committee, which has monitored campaigns in nonpartisan judicial elections for 16 years, is concerned that such elections are becoming too partisan.

The committee is a private, nonprofit, nonpartisan organization that was created to safeguard the integrity of the judiciary in Kentucky judicial elections. It was formed partly in response to court decisions that expanded the First Amendment freedoms of judicial candidates, and the prospect of campaigns that made nonpartisan judicial elections more like those for executive and legislative offices, which are partisan.

The committee has focused its public statements on campaigns that used false or misleading information to persuade voters, and believes its work has discouraged such campaigning. Now it feels that judicial candidates who emphasize their partisan affiliation are leading voters to think of judicial elections as partisan, when they are not, and that this trend will undermine the independence and thus the integrity of the judiciary.

Section 117 of the Kentucky Constitution provides for the popular election of all Kentucky's state judges in non-partisan elections. Does a nonpartisan election require nonpartisan campaigns? No. Federal courts have ruled that nonpartisan elections cannot deny judicial candidates, or others, the rights of free speech and association.

Kentucky and most other states that select judges by popular election attempt to create safeguards that protect the independence and integrity of their judiciaries. A rule of the Supreme Court of Kentucky says “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” In its official comments on the rule, the Court says, “The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office should be conducted differently from campaigns for other offices. . . . Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence.”

Why should judicial elections be considered different from other elections? The touchstone of the judiciary is its independence and impartiality. Everyone in a free society should be able to expect their disputes that end up in court to be decided by an impartial tribunal that is not influenced by political affiliations.

It is natural for voters to want judges whose expressed views or associations (political parties or special interest groups) indicate the candidate is inclined to agree with the voter on how a particular issue should be resolved. When judicial candidates emphasize their affiliation with a political party, they erode long-held American principles of judicial independence and fairness.

One example

That is why we are concerned that the campaign logo on the website of state Rep. Joe Fischer for the Kentucky Supreme Court includes a bottom line identifying him as “the conservative Republican” in the race; that a June 29 post on his campaign Facebook page thanked the Oldham County Republican Party for its “generous support;” and that on July 21, the page shared a post by the Republican Party of Kentucky’s 4th District, quoting from a public-radio news story:

“Joe Fischer, a Republican legislator known for his anti-abortion and conservative stances, is taking on nine-year incumbent Supreme Court Justice Michelle Keller in the race. Fischer, of Fort Thomas, penned Kentucky’s ‘trigger law,’ which sought to automatically outlaw abortion in the state after the U.S. Supreme Court struck down Roe v. Wade. He also sponsored an amendment to the Kentucky constitution that would ensure no abortion rights are guaranteed in the state’s fundamental document. A former prosecutor and appellate judge, Keller was appointed to the northern Kentucky Supreme Court district in 2013 by Democratic Gov. Steve Beshear.” The story did not mention that Keller is registered to vote as an independent.

We believe candidates are responsible not only for their social-media posts, but for comments that remain on those posts. On a July 28 post by the Fischer campaign there is a comment by Bernard Kunkel: “Joe Fischer all the way. You must beat the pro-abort Andy Beshear loving Justice Michelle Keller.” Kunkel provides no evidence for this assertion, but in a similar post on another judicial campaign’s page, he cited a Court of Appeals decision that upheld an Anderson Family Court ruling for a parent who wanted his children vaccinated over the objections of the other parent, based on the use of aborted fetal cells. That is the subject of a complaint pending before the committee, which has advised the object of the complaint that it believes Kunkel’s characterization is misleading if not inaccurate.

Judicial candidates have the First Amendment right to publicize their political affiliations and their records in public service, and some on our committee believe that unless the campaigning is misleading or inaccurate, they should be able to exercise this right without questioning or criticism from the committee – and that voters deserve to have information about the candidates.

A majority of the committee believes the First Amendment right to free speech is not compromised by speech questioning how that right is exercised, and that in this case, Fischer places too much emphasis on his partisan affiliation.

While he has every right to do that, we believe campaigning as the Republican candidate in a nonpartisan election undermines the independence and integrity of the judiciary. Not only can this mislead voters into thinking they are voting in a partisan election, it strengthens Fischer’s ties to his party. The primary objective of any political party is to gain and maintain power by electing its candidates. The objective of a nonpartisan election is to separate the judiciary from such entanglements.

A broader look

Looking more broadly at judicial elections in general, we might do well to remember the example Abraham Lincoln set when considering whom to appoint chief justice after the death of Chief Justice Roger Taney in 1864. As biographer David Herbert Donald describes, "The President wanted to name a man deeply versed in the law, rather than an ideologue or a theorist," or as Lincoln put it, "The function of courts is to decide cases, not principles." (Lincoln, p. 551.)

An equally important consideration in judicial selection is that the great majority of work that a judge does is not the stuff of headlines. This is even more reason voters should rely less on the political affiliations and political views of the prospective judge. Deciding issues of probate, evidence, personal injury, procedure, family law, and many other areas of law rarely will be affected by whether the judge is a Republican or a Democrat.

Far more important than party affiliation in judicial selection are such considerations as knowledge of the law, life experience, fairness, the ability to listen, the willingness to put aside possible prejudice and bias, patience, humility, and a firm commitment to the rule of law.

We have no perfect way to select our judges. In Kentucky voters have the challenge and responsibility to uphold the highest standards of judicial selection. This responsibility is best served by informed and objective determinations. We must not be sidetracked; We must keep our eyes on the ball.

Background information about the Kentucky Judicial Campaign Conduct Committee is at kyjccc.blogspot.com.

State judicial Ethics Committee issues opinion on contributions, endorsements, political parties and more

The Ethics Committee of the Kentucky Judiciary issued a formal opinion April 8 to a judicial candidate who was not identified in the opinion but asked several questions of potential importance about judicial campaign contributions, endorsements, political parties and more. No one asked the state Supreme Court to review the opinion within 30 days after it was issued, and it stands as guidance for candidates. The questions, answers and opinion follow.

May a judicial campaign committee solicit contributions from political action committees?
The Judicial Ethics Committee is not aware of any statute prohibiting a judicial candidate’s campaign committee from accepting money from a political action committee. Case law indicates accepting money from political action committees is permissible so long as the contribution falls within statutory limits. Dean v. Bondurant, 193 S.W.3d 744, 751 (Ky. 2006) (citing Adair v. State, Dept. of Educ., 474 Mich. 1027, 709 N.W.2d 567, 579-581 (2006), permitting PAC contributions to judicial campaigns.) The Kentucky Revised Statutes prohibit ANY candidate, judicial or otherwise, from making a promise of anything of value or making any commitment to vote for or against anything in return for campaign donations. KRS 121.055.

May a judicial campaign committee solicit endorsements from elected partisan officials?
No. New Code [of Judicial Conduct], Canon 4, Rule 4.1(A)(7); Judicial Ethics Opinion JE-66; Winter v. Wolnitzek, 834 F.3d 681, 691-692 (6th Cir. 2016), 

May a judicial campaign committee advertise endorsements from elected partisan officials?
No. New Code, Canon 4, Rule 4.1(A)(7); Judicial Ethics Opinion JE-66; Winter v. Wolnitzek, 834 F.3d 681, 691-692 (6th Cir. 2016). Listing partisan officials as endorsers of a judicial candidate renders hollow Kentucky’s Constitutional requirement of nonpartisan campaigns. New Code, Canon 4, Rule 4.1, Comment 10.

Is it permissible if the officials are listed as holding their partisan office titles?
No. New Code, Canon 4, Rule 4.1(A)(7); Judicial Ethics Opinion JE-66, Winter v. Wolnitzek, 834 F.3d 681, 691-692 (U.S. 6th Circuit 2016). Listing partisan officials as endorsers of a judicial candidate renders hollow Kentucky’s Constitutional requirement of nonpartisan campaigns. New Code, Canon 4, Rule 4.1, Comment 10.

Is it permissible to simply list the individuals' names so long as the corresponding partisan office is not listed?
Kentucky’s Judicial elections are nonpartisan by Constitutional mandate, Ky. Constitution Section 117, and previous Kentucky authority has barred judicial candidates from listing current partisan officials as endorsers of their campaign without creating an exception for accepting an endorsement so long the official’s title was not attached. Judicial Ethics Opinion JE-66.

May a judicial campaign committee’s advertising include symbols closely associated with a political party in its advertising (i.e., Democratic donkey and Republican elephant)?
No. Both federal and state case law have held previously that a judicial candidate may “announce” during his or her campaign his or her membership in a partisan political party. Winter v. Wolnitzek, 834 F.3d 681, 688-689 (6th Cir. 2016); Winter v. Wolnitzek, S.W.3d 768 (Ky. 2016). Nowhere in this case law, however, does it state that a judicial candidate is free to “render hollow” Kentucky’s Constitutional requirement that judicial campaigns be nonpartisan. Ky. Const. Section 117; New Code, Rule 4, Rule 4.1, Comment 10.

May a judicial candidate’s campaign committee advertise a candidate’s policy positions without stating how the candidate would commit to ruling if faced with the issue on the bench?
Yes. The United States Supreme Court has clearly stated that a judicial candidate may announce his or her legal and political views so long as that judicial candidate does not commit to ruling a particular way. Republican Party of Minnesota v. White, 535 U.S. 923, 122 S.Ct. 1229, 152 L.Ed.2d 205 (2002). The New Code also states this rule: Canon 4, Rule Rule 4.1(A)(13).

May a judicial campaign committee state that a former legislator turned judicial candidate sponsored legislation on a major policy during their tenure as a legislator?
Once an individual becomes a judicial candidate, that individual is bound by the same rules that bind all judicial candidates. SCR 3.130(8.2)(b). Without knowing what legislation the candidate refers to, it is impossible to say more.

May a judicial campaign committee advise voters of the political party the candidate belongs to in a mass advertisement such as on its logos or through a direct statement by the candidate?
Unless the Committee misunderstands this question, it has been answered above. A judicial candidate may announce his political affiliation but he or she may not do so in such a way to make hollow Kentucky’s Constitutional requirement that judicial elections be nonpartisan. Ky. Const. Section 117; New Code, Canon 4, Rule 4.1, Comment 10.

OPINION

SECTION I. The Judicial Ethics Committee is not aware of any statute that prohibits a judicial candidate from accepting money from a political action committee. Additionally, Kentucky Supreme Court case law indicates that accepting money from a political action committee is permissible so long as the contribution falls within statutory limits. Dean v. Bondurant, 193 S.W.3d 744, 751 (Ky. 2006), (citing Adair v. State Dept. of Educ., 474 Mich. 1027, 709 N.W.2d 567-581 (2006), permitting PAC contributions to Judicial campaigns.) Soliciting money from any person, natural or otherwise, however, is prohibited if such support is obtained by promising anything of value or committing the candidate to take any particular action once that candidate is elected. KRS 122.055.

SECTION II. The New Code specifically prohibits a judicial candidate’s campaign committee from seeking, accepting or using an endorsement from a partisan political official. Rule 4.1(A)(7); Judicial Ethics Opinion JE-66, Question 1; Winter v. Wolnitzek, 834 F.3d 681, 691-692 (6th Cir. 2016). As stated in JE-66, an endorsement from a public official for a judicial candidate is essentially an endorsement from the judicial candidate for that public official. The Sixth Circuit recognized in Winter v. Wolnitzek that endorsements are most often made on a quid pro quo basis and Kentucky has a compelling interest in keeping its judicial candidates from being unable to (and being perceived as being unable to) be fair and impartial in a case that involved one official who had endorsed the judge and one who had not. By keeping its judicial candidates “above the partisan fray” and out of the world in which political favors are exchanged, Kentucky furthers its Constitutional mandate of nonpartisan campaigns (Ky. Const. Section 117) in addition to its compelling interest in preserving the integrity and impartiality as well as the appearance of same in its judicial officers. Id.at 691-692. 

SECTION III, A judicial candidate may not advertise the endorsement or endorsements made by partisan public officials. The reason is that judicial elections are nonpartisan according to Ky. Const. Section 117. The New Code, Canon 4, Rule 4.1, Comment 10, provides that the endorsement of a judicial candidate by a partisan public official is almost the same as that judicial candidate campaigning as the official nominee of a particular party. Kentucky case law holds that a judicial candidate may not campaign as the official nominee of a partisan party. Winter v. Wolnitzek, 482 S.W.3d 768 (Ky. 2016). While a judicial candidate may “announce” his membership in a particular party, Republican Party of Minnesota v. White, 535 U.S. 923, 122 S. Ct. 1229, 152 L.Ed.2d 205 (2002); Winter v. Wolntizek, 834 F.3d 681, 688-689 (6th Cir. 2016); judicial candidates are not permitted to “render hollow” Kentucky’s Constitutional commitment to nonpartisan judicial campaigns. Ky.Const. Section 117; New Code, Canon 4, Rule 4.1, Comment 10. Advertising the endorsement of a partisan public official would interject an impermissible partisan character into a judicial election and cross this line. It makes no difference if the public official is listed with the title of his office or not. Past Kentucky authority has not made an exception on this basis. Judicial Ethics Opinion JE-66, Question 1. Rather the distinction is made on whether the public official is presently holding public office or not. Past public officials may be listed as endorsing a judicial candidate along with the title of their former office (Judicial Ethics Opinion JE-113).  This same reasoning requires that a judicial candidate not employ partisan symbols in his campaign literature such as the “elephant” for the Republican Party or the “donkey” for the Democratic Party. Using such symbols interjects an impermissible partisan character into a judicial campaign to the extent that it “renders hollow” the intended nonpartisan rule. New Code, Canon 4, Rule 4.1, Comment 10. This is also why judicial candidates are not permitted to include their partisan affiliation in mass mailings to potential supporters.

SECTION IV. It is well established that a judicial candidate may announce his or her personal beliefs regarding various legal and political issues so long as the candidate does not commit to rule in a particular way should the question come before him or her in court. New Code, Canon 4, Rule 4.1(A)(13). The United States Supreme Court imposed this requirement in the case of Republican Party of Minnesota v. White, 535 U.S. 923, 122 S.Ct. 1229, 152 L.Ed.2d 205 (2002). To the extent a judicial candidate would be permitted to advertise as part of his or her campaign that the candidate had supported a particular piece of legislation is difficult to say without knowing what legislation the candidate refers to. The fact that a judicial candidate, as a legislator, had supported certain legislation, would be a matter of public record. At the same time, once an individual becomes a judicial candidate, he or she is bound by the same rules that bind all judicial candidates. SCR 3.130(8.2)(b).

Please be aware that opinions issued by or on behalf of the Committee are restricted to the content and the scope of the Canons of Judicial Ethics and legal authority interpreting the Canons, and the fact situation on which an opinion is based may be affected by other laws or regulations. Persons contacting the Judicial Ethics Committee are strongly encouraged to seek counsel of their own choosing to determine any unintended legal consequences of any opinion given by the Committee or some of its members. Additionally, all judges and judicial candidates need to know that they have the right to obtain review by the Kentucky Supreme Court of any formal opinion issued by the Judicial Ethics Committee on motion filed in compliance with SCR 4.130(4), and all formal and informal opinions issued by the Judicial Ethics Committee are subject to review by the Kentucky Supreme Court on its own motion at any time. SCR 4.130(4). 

Very truly yours,
Irv Maze, Chair and Judge, Court of Appeals
The Ethics Committee of the Kentucky Judiciary

cc: The Honorable C. Rene’ Williams, Judge, Circuit Court; The Honorable Jeffrey Scott Lawless, Judge, District Court ;Donald H. Combs, Esq. and Vice Chair; Jean Collier, Executive Secretary