Judicial Campaign Conduct Committee finds ad by Kentucky Supreme Court candidate falsely misrepresents the role of a judge, and his opponent made inaccurate and unsubstantiated claims

A claim by Letcher Circuit Judge Sam Wright in his campaign for the Kentucky Supreme Court is false and misrepresents the role of a judge or justice, the Kentucky Judicial Campaign Conduct Committee has found.

On a counter-complaint by Judge Wright, the committee found that his opponent, Court of Appeals Judge Janet Stumbo, made an inaccurate claim about her length of service, and that her campaign made a claim about Wright’s fund-raising that the committee was unable to substantiate.

The first complaint, by Stumbo’s campaign, was about a Wright commercial saying Stumbo “sided with criminals nearly 60 percent of the time” when she was on the Supreme Court. Wright told the committee that the figure “comes from the fact that Janet Stumbo voted in favor of the convicted criminal defendant in 59% of the published cases in which she voted during the last five years she was a justice of the Kentucky Supreme Court.  The published cases were used because those are the ones in which the court is establishing law or making precedent.”

In a letter to Wright, the committee said, “The ad fails to consider the number of unpublished criminal cases in which Janet Stumbo would have participated as a justice on the Supreme Court. The 60 percent figure may be significantly different if all criminal cases were considered.”

Beyond the question of numbers, the committee told Wright that judges and justices are supposed “to base decisions on the law and to not take sides.  Many convictions are reversed due to procedural, statutory or constitutional issues, and these decisions should not be represented as ‘siding with criminals.’ To say otherwise is to purposely mislead the electorate on the role of a judge or justice.”

The committee told Wright, “Our committee has determined in previous elections for the Kentucky Supreme Court that similar campaign ads making this type of allegation were improper, and we do so again. Your ad undermines the high standards by which judicial campaigns should be conducted.”

The committee reminded Wright, and reminds voters, that Kentucky’s nonpartisan judicial elections are different from those for executive or legislative offices. The committee believes campaigns for judicial office should uphold the integrity and impartiality of the judiciary. The committee asked Wright to “cease the use of this ad or similar advertising making this claim and refrain from using it in the remainder of the campaign.”

After being notified of the complaint against him, Wright filed two complaints against Stumbo, making several allegations. The committee concluded that two were worthy of examination: Stumbo’s claim in an ad that she has 25 years of experience as an appellate-court judge, “more than any other person in the history of this commonwealth,” and her campaign’s May 7 claim on its Facebook page that he was raising money by calling prospects and handing the phone to another person who requested a contribution to Wright’s campaign.

The committee found that Justice Donald Wintersheimer served on the Court of Appeals and Supreme Court for more than 29 years, more than Stumbo. It asked the Stumbo campaign for the source of its fund-raising allegation, and the campaign provided a name. However, that person did not substantiate the claim made by the campaign.

The Kentucky Judicial Campaign Conduct Committee is an independent, non-governmental, non-partisan group of interested citizens from all over Kentucky, with a mix of lawyers, non-lawyers, Democrats, Republicans and independents. Each year there is a judicial election, the committee offers candidates an agreement in which they pledge to run fair and dignified campaigns, and disavow false or misleading ads and other campaign tactics 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.” Only two of the 26 candidates seeking judicial office in Kentucky this fall did not sign the agreement: Ron Schwoeppe, who is running for a district judgeship in Louisville, and Judge Sam Wright.

Members of the committee are retired circuit judge Charles Boteler, Owensboro; retired Court of Appeals judge Tony Wilhoit, Versailles; Al Cross, Frankfort, secretary; Jon Fleischaker, Louisville, secretary; Jane Baker, Glasgow; Steve Cawood, Pineville; William Fortune, Lexington; Kate Hendrickson, Maysville; Spencer Noe, Lexington; Dennis Null, Mayfield; Marcia Milby Ridings, London; Howard Roberts, Pikeville; Bill Robinson, Covington; Cecile Schubert, Richmond; Kathy Walker, Paintsville; and Elaine Wilson, Somerset.

Candidates pledge to run dignified judicial campaigns

      The Kentucky Judicial Campaign Conduct Committee is pleased to announce that

24 of the 26 candidates seeking office in the judicial elections on Nov. 3 have signed a pledge to run fair and dignified campaigns.  They have signed a pledge to disavow false or misleading advertising and other campaign tactics 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.”

       Elections will be held for the state Supreme Court seat from most of Eastern Kentucky, a circuit judgeship in Calloway and Marshall counties, and a district judgeship in Jefferson County.

        Candidates may sign the agreement at any time. Those who have signed are:

7^th Supreme Court District (Boyd, Breathitt, Carter, Elliott, Floyd, Greenup, Harlan, Johnson, Knott, Lawrence, Letcher, Magoffin, Martin, Menifee, Montgomery, Morgan, Owsley, Perry, Pike, Powell, Rowan, and Wolfe counties): Janet Stumbo

42^nd Judicial Circuit: Jeff Edwards, Randall Hutchens and Jamie Jameson

30^th Judicial District, Division 4:

Daniel M. Alvarez

Judith Bartholomew

Andre L. Bergeron

Sandy Berman

Josephine L. Buckner

Dennis C. Burke

Dawn Elliot

R. A. Florio

James M. Green

Bob Heleringer

L. J. (Todd) Hollenbach IV

Danny Karem

Ellie Garcia Kerstetter

Michael Leibson

Ruth Lerner

Chuck Rogers

C. Fred Partin

J. P. Ward

Erin White

Benjamin F. Wyman

               Although Canon 5 of the Kentucky Code of Judicial Conduct sets a baseline for campaign conduct, the Committee believes candidates should strive to a level of conduct that reflects the dignity of the judicial office.

               Many of the tactics in partisan elections are inappropriate in non-partisan judicial campaigns and undermine the integrity of the judicial system. Kentucky’s courts rely on public confidence and support to maintain their legitimacy, and misleading campaigning destroys the basis of the judicial authority that helps hold our society together.

               The nonpartisan, nonprofit Kentucky Judicial Campaign Conduct Committee has no official authority, but each election year it offers a campaign agreement for all judicial candidates to sign. It may also make a public statement when it believes a candidate is campaigning inappropriately.

               The agreement’s preface says, “The actions of candidates for judicial office affect the integrity and independence of our judicial system, reflecting on both the Kentucky judicial system and the Commonwealth of Kentucky. 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.”

               By signing the pledge, candidates show a commitment to the decorum of the office they wish to hold. The Committee hopes that this agreement will encourage appropriate campaign practices that are more appealing and engaging to voters throughout the Commonwealth.

               Anyone who believes a judicial candidate is not campaigning appropriately may send the Committee a complaint in writing, preferably by email to Committee Chair Charles Boteler at charlesboteler@gmail.com. The Committee discourages anonymous complaints and is much less likely to act on such complaints.

Committee condemns campaign tactics of both candidates in Court of Appeals race

The Kentucky Judicial Campaign Conduct Committee is condemning the campaign tactics of both candidates for a seat on the state Court of Appeals.

The committee finds that the campaign of Judge Allison Jones of Prospect undermined the high standards by which judicial campaigns should be conducted, by saying she is running for re-election when she has never been elected, and by making scurrilous insinuations on social media that a reasonable person would read as references to her opponent. The Facebook post was made by the judge’s husband, Larry Jones, her campaign treasurer, and carried the campaign logo.

The committee also finds that the challenger in the 6^th District race, Justin Sanders of Covington, has also fallen short of the standards of judicial campaigning by implying that Judge Jones lives in Louisville, when she does not, and that he has misstated the role of a judge by saying that “Northern Kentuckians can best assure fair representation” by electing him to the court.

The first complaint in the race, against Judge Jones, was filed by Covington lawyer Robert E. Sanders, the father of candidate Justin Sanders. The second complaint was filed by Judge Jones against Justin Sanders.

Robert Sanders filed his complaint Oct. 30. He cited a Sept. 21 Facebook post by Larry Jones, the second through fourth paragraphs of which discussed Judge Jones’ opponent without using his name. The fifth paragraph began, “And the lies. Wow, the lies have started with personal attacks being spread throughout the communities. I do have a warning though: He who lives in a glass house should not cast stones. Allison does not want to go negative. It just isn’t her style. But whatever she might be forced to do will be backed up by documented proof.”

The sixth paragraph began “For instance, if it involves . . .” and went on to mention examples of misbehavior, both personal and criminal. Robert Sanders’s complaint said that Justin Sanders had never engaged in such behavior. The Jones campaign did not respond to the Sanders complaint in writing, but Larry Jones said in an oral reply to the Committee that he was not referring to Justin Sanders. The Committee finds that a reasonable person would understand the paragraph to be referring to the opposing candidate, because of the context, and that it was wholly inappropriate.

The Committee also finds that Judge Jones misled voters by asking them to “re-elect” her in campaign materials and a published statement. She was appointed to the court to fill a vacancy, is seeking election to the unexpired term, and has never been elected to public office.

The Sanders complaint also noted that Judge Jones had scheduled for election night a drawing for University of Kentucky basketball tickets among supporters who had promoted her candidacy in certain ways on Facebook. The Committee is concerned that such activity may undermine the integrity of the judiciary because state law says candidates shall not “become liable in any way for money or other thing of value, either directly or indirectly, to any person in consideration of the vote or financial or moral support of that person.” The Jones campaign said it canceled the drawing after receiving a copy of the Sanders complaint.

After it replied to the complaint, the Jones campaign filed one against Sanders, alleging that he has misled voters by attempting to portray Judge Jones as a resident of Louisville and/or Jefferson County, which is outside the district. Jones lives in the Oldham County portion of the city of Prospect.

The Sanders campaign said that it has never said Jones lives in Louisville, but has said that she practices law there. A newspaper column by Justin Sanders said in an Oct. 17 column in a Northern Kentucky newspaper, “My opponent spent the bulk of her career as a Louisville lawyer, rarely, if ever, practicing in the Sixth District.” Though Prospect is in the Louisville metropolitan area, the Committee finds that a reasonable reader of such statements could incorrectly conclude that Jones lives in Jefferson County.

The Jones complaint also alleged that Sanders has “stated and implied that he would place Northern Kentucky's interests above other geographic areas in ruling on cases.” Sanders wrote in the newspaper column, “The question, for example, of whether state funds should be used here to replace the Brent Spence Bridge, or on a competing project for Louisville, could end up before the Court of Appeals. How confident could one be in the fairness of its decision if Louisville had three judges on the court and Northern Kentucky had only one? Northern Kentuckians can best assure fair representation by electing a Northern Kentucky judge.”

The Kentucky constitution gives the court two judges from each of the seven districts, to ensure a diversity of backgrounds. The Sanders campaign argues that is a form of representation. However, the judges on appellate courts do not represent voters in the sense that legislative and executive officials do, and the Committee finds that using the word “representation” misrepresents the role of the courts and judges, which is to rule on the law and facts, not to represent interests. This is an important distinction to preserve in judicial campaigns.

Finally, the Committee believes that if a judicial campaign has a problem with actions of a competing campaign, and wants to complain to the Committee about it, such complaints should be filed promptly. Last-minute charges and counter-charges do little to uphold the integrity of the judiciary and the principle that judicial campaigns should be different from campaigns for legislative and executive office.

The Committee is an independent, non-governmental, non-profit, non-partisan group of interested citizens from all over Kentucky. It includes people from both political parties and various walks of life, including civic leaders, attorneys, non-lawyers and retired judges. The Committee encourages judicial candidates to sign a pledge to avoid false or misleading advertising and other campaign tactics 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. For more information, see http://kyjccc.blogspot.com.

Committee asks Court of Appeals candidate to stop advertising that it finds misleading

The Kentucky Judicial Campaign Conduct Committee has asked Kent Varney, a candidate for the state Court of Appeals, to stop using advertising that claims his opponent, Judge Janet Stumbo, has "sided with criminals 59 percent of the time."

In a letter to Varney, copied to the Stumbo campaign, the committee said, "The KJCCC finds that this assertion misrepresents the role of a judge or justice, which is to base decisions on the law and not take sides. Also, no context for the assertion is provided, so we find that the ad is misleading. Our committee determined in an election for the Kentucky Supreme Court in 2012 that a campaign ad making this type of allegation was improper, and we do so again. We conclude that this portion of your ad is misleading and undermines the high standards by which judicial campaigns should be conducted."

The Floyd County Times published a story on the matter, which can be read here. For a copy of the letter, click here.

Committee finds no evidence, takes no action on complaint about anonymous website attacking a judge; discourages candidates' involvement in such entities

The Kentucky Judicial Campaign Conduct Committee recently received a complaint from a judicial candidate alleging improper campaign activity on the part of an opponent which involved the creation and maintenance of a website, or the creation of an email with a link to the site.

In accordance with our rules of procedure, our committee inquired of the candidate against whom the complaint was made. After fully considering the response, in which the candidate denied any involvement, and being unable to determine ownership of the website because it is hosted on a commercial server, the KJCCC has insufficient evidence to support a finding that the respondent had any knowledge of the creation and maintenance of the website.

Since the committee finds no evidence of improper campaign activity on the part of a judicial candidate, it is not disclosing the names of either party in this complaint. Both candidates signed a Campaign Agreement with the Committee pledging to campaign according to the Kentucky Code of Judicial Conduct and disavow advertising that uses false or misleading information or accusations to impugn the integrity of a candidate, or erode public trust and confidence in the independence and impartiality of the judiciary.

Since the complaint is a matter of first impression for the committee, we do take this opportunity to discourage strongly any attempt by judicial candidates to be involved anonymously in the use of entities that are represented as independent but are connected to the candidate. While fully supportive of free and open elections, the KJCCC urges judicial candidates to conduct campaigns that are committed to upholding the integrity of the judiciary.

The KJCCC is an independent, non-profit, non-partisan group of interested citizens from all over Kentucky. It includes people from both political parties and various walks of life, including civic leaders, attorneys, non-lawyers and retired judges. The committee encourages judicial candidates to sign a pledge to avoid false or misleading advertising and other campaign tactics 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. A list of members is here.

Committee asks candidates to safeguard courts' integrity, voters to realize judicial elections are different

By Charles Boteler
Chair and President, KJCCC

    Almost 40 years ago, with bipartisan support, Kentuckians amended our constitution to create a unified statewide court system with non-partisan judicial elections, ending a system in which judicial candidates ran under political-party labels. In 2014 Kentucky will elect all of its district, circuit, and Court of Appeals judges. In addition, four justices of the Kentucky Supreme Court will be elected.

   The Kentucky Judicial Campaign Conduct Committee was organized in 2006 as a private group to monitor judicial elections to ensure as best possible that our judges are selected fairly and in a manner that promotes the values of democracy and a free and independent judiciary.

   For the most part, Kentucky has avoided the bitter, overly politicized, and expensive judicial elections which occasionally have marred judicial selection in some other states, most recently Tennessee.

   In this election year the KJCCC makes two requests. First, we ask all judicial candidates to campaign in such a way that their campaigns positively support a court system that will be able to resolve, fairly and in accordance with the rule of law, the various disputes that will require litigation. Though some kinds of campaign activity may be constitutionally permissible, we ask candidates to refrain from the kinds of campaigning that sully the election process and even more importantly call into question the effectiveness and impartiality of our courts.

   Second, we urge Kentucky voters to insist that judicial candidates wage campaigns that focus on the issues relevant to the selection of a judiciary best equipped to function as an independent and competent court system. Judicial elections are different and Kentucky will be served best by judges free to evaluate fairly the evidence and legal issues in all cases that might come before them.

   Kentucky has selected its judges by popular election since the adoption of its third constitution in 1850. Popular election works best when candidates are committed to fair campaigns, and voters are committed equally to informed decision-making.

    In this important election year, the Kentucky Judicial Campaign Conduct Committee pledges it will assist in its role as a private monitoring group dedicated to promoting the values of a well-functioning, independent judiciary, dedicated to the rule of law.

Charles Boteler of Owensboro, a retired circuit judge, is president and chair of the Kentucky Judicial Campaign Conduct Committee Inc., a private, nonprofit, nonpartisan group organized to safeguard the integrity of the judiciary in Kentucky's judicial elections.