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

Committee welcomes Owensboro’s Martha Clark as newest member

Owensboro civic leader Martha Clark has been named to the Kentucky Judicial Campaign Conduct Committee, a private, nonprofit, non-partisan group that safeguards the integrity of the judiciary in Kentucky judicial elections.

“We are very happy to have someone of Martha Clark’s stature join us,” said Committee Chair Anthony Wilhoit of Versailles, former chief judge of the Kentucky Court of Appeals and executive director of the Legislative Ethics Commission. “With most Kentucky judgeships on the ballot next year, we are also happy to have all major areas of the state represented among our 15 members.”

Martha Clark

Clark said, “I’m proud to assist the committee in furthering its goal of maintaining the independence and integrity of Kentucky’s justice system.”

Clark, a retired CPA, is active in many civic organizations. She is a member of the Kentucky Humanities Council and the Owensboro Symphony board, and co-founded Impact 100 Owensboro, a group that encourages women to become involved and remain involved in local philanthropy. It has raised $3 million for Owensboro-area nonprofits. She recently retired as administrator of the John B. and Brownie Young Memorial Scholarship.

The Kentucky Judicial Campaign Conduct Committee was formed in 2005 because judges, lawyers and citizens had become concerned that judicial elections were becoming too much like executive and legislative elections, eroding the independence, image and integrity of the judiciary. The committee educates citizens about the nature of judicial offices and elections, encourages judicial candidates to run dignified campaigns and avoid making specific promises about how they might rule on any matter; and monitors judicial races, considers complaints of unethical campaigning and makes public statements when warranted.

The committee invites candidates to sign 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.” The committee then publicizes which candidates have signed the pledge, and, if it issues a statement criticizing campaigning by a candidate who has signed the pledge, that is noted.

The committee has a self-perpetuating board and has made an effort to include members from various walks of life and political viewpoints, including civic leaders, attorneys, non-lawyers and retired judges. Its bylaws require that no fewer than 30 percent nor more than 60 percent of the members be practicing members of the Kentucky bar.

In addition to Clark and Wilhoit, the committee members are Howard Roberts, Pikeville, vice chair; Al Cross, Frankfort, secretary; Charles Boteler, Louisville, treasurer; Jane H. Baker, Glasgow; Stephen C. Cawood, Pineville; Bill Cunningham, Kuttawa; Jon Fleischaker, Louisville; William Fortune, Lexington; Kate Hendrickson, Maysville; Marcia Milby Ridings, London; Cecile Schubert, Richmond; Kathy Walker, Prestonsburg; and Elaine Wilson, Somerset.

Candidates who have signed committee's agreement

Following is a list of candidates in the 2020 elections who signed the Committee's pledge to conduct their campaigns with dignity and integrity, in accordance with the state Code of Judicial Conduct, and to disavow advertising with false or misleading information or accusations that impugn the integrity of the judicial system or the integrity of a candidate, or that erode public trust and confidence in the independence and impartiality of the judiciary. A full list of candidates for judgeships is available at https://web.sos.ky.gov/electionmall/default.aspx. Primary elections for judgeships reduce the number of candidates to two for the general election.

Candidate, address and judgeship sought

Chris Harris, Forest Hills, justice, Supreme Court, 7th District

Jenny Marie Hines, Paducah, judge, Court of Appeals, 1st District

J. Chris McNeill, Paducah, judge, Court of Appeals, 1st District

Elizabeth Davis, Mount Sterling, circuit judge, 21st Circuit

Teresa Whitaker, Science Hill, circuit judge, 28th Circuit

Catherine S. Fuller, Benton, family court judge, 42nd Circuit

CANDIDATES DEFEATED IN PRIMARY
Jerry J. Cox, Mount Vernon, circuit judge, 28th Circuit
Daryl K. Day, Stanford, circuit judge, 28th Circuit
Ashton McKenzie, Salt Lick, judge, 21st Circuit
Stephen E. Neal, Mount Sterling, judge, 21st Circuit
C. Rene' Williams, Dixon, judge, Court of Appeals, 1st District

Committee asks 13 judicial candidates in six contested races on Nov. 5 ballot to sign fair-campaign pledge

The Kentucky Judicial Campaign Conduct Committee is mailing letters to the 13 candidates in contested races for nonpartisan judicial office in the Nov. 5 election, asking that they sign an agreement with the committee pledging to "conduct my campaign with dignity and integrity and in accordance with the Kentucky 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." The committee will post a list of those who have signed the pledge.

The contested races are:
Supreme Court (1st District): Shea Nickell vs. Whitney Westerfield
Court of Appeals (3rd District): Jacqueline Caldwell vs. Michael Caperton

7th Circuit Judge (Logan and Todd counties): Joe Hendricks vs. Joe Ross
22nd Circuit Judge (4th Division, Fayette County): Julie Muth Goodman vs. John Reynolds
35th Circuit Judge Family Court (Pike County): Kent Varney vs. Justin Cory Hamilton

46th District Judge (Breckinridge, Grayson, Meade): Bradley Butler, Zanda Myers and Beth Ratley

The letter to each candidate reads:

The Kentucky Judicial Campaign Conduct Committee is a private, non-partisan, non-governmental group created in 2005 to promote judicial elections that support a fair and independent Kentucky judiciary. The KJCCC has helped keep most Kentucky judicial campaigns fair and dignified for the last 14 years. We are not a government agency and have no power to discipline candidates who violate the Code of Judicial Conduct (SCR 4.300).

In January 2018, the Supreme Court of Kentucky amended the Code. New Canon 4 replaced old Canon 5, and Rule 4.1 was issued to conform to the requirements of Winter v. Wolnitzek, 186 F.Supp. 3d 673 (E.D.Ky. 2016). The rule describes what is, and is not, permitted in Kentucky judicial campaigns under the First Amendment, and the code’s preamble notes that judicial candidates are also governed by “general ethical standards.” The KJCCC’s standards reflect that fact, and are intended to keep nonpartisan judicial campaigns from becoming like partisan campaigns for executive or legislative office. We believe that has served the state and its judiciary well and is a hallmark of our system’s excellence.

The KJCCC asks that you campaign in a fair and dignified manner and that you refrain from:

1) making false or misleading statements;
2) making statements that indicate how you would rule in a pending case or type of case, or call into question the obligation to decide matters impartially and without pre-judgment;
3) campaigning as if the election is a partisan election. Judicial elections in Kentucky are non-partisan for a reason – to assure the public that the candidate will, if elected, treat everyone the same without regard to political affiliation. “The interest is not in preventing bias against parties; the interest is in preventing judges from being too involved in political machines.” (Winter v. Wolnitzek, p. 28; Rule 4.1 governs political activity.)
4) making personal attacks on an opponent. Judicial elections should be above such tactics, and, to the credit of judicial candidates over the years, we’ve seen very few attack ads. We also ask that you disavow personal, misleading of false attacks made by other parties.

We are enclosing a campaign pledge and the procedures by which complaints can be made. We will investigate complaints promptly and speak out (by press release or letter) to respond to what we believe is unfair campaigning. Send an email to KJCCC Secretary Al Cross and me (addresses above) if you believe you have been the victim of unfair campaigning. We have no power to discipline, only the power of persuasion.

We offer you our best wishes for a campaign that will enhance the reputation of the Court of Justice.

Sincerely,

Cecile Schubert
Vice Chair and acting Chair

Committee elects Noe chair, welcomes Cunningham

The Kentucky Judicial Campaign Conduct Committee, a nonprofit, non-stock corporation, conducted its annual meeting on Jan. 19 in Midway. It elected Spencer Noe of Lexington chair and president, re-elected other officers, and extended an invitation to retiring Supreme Court Justice Bill Cunningham of Kuttawa to join the committee. He accepted. Other committee members are listed here.

UPDATE: Noe has resigned from the committee, citing health reasons; Vice Chair Cecile Schubert is acting chair.

Committee tells candidates they should consciously avoid campaigning that may mislead voters

The committee received a complaint in early October from a judicial candidate, alleging misleading campaigning by the other candidate in the race.

One concern expressed was that the other candidate's claim of a certain amount of “legal experience” included time in law-related activities before admission to the bar. The other concern was that the lack of the words “vote” or “elect” on some campaign materials with the title of the office being sought may create the incorrect impression that the candidate already holds that office.

Some committee members were concerned about one issue, others were concerned about the other, and some were concerned about both, but there was no overall consensus among the committee members. The committee did not feel that the matter called for a press release, but told the candidates in a letter that its main concern is that judicial candidates consciously avoid campaigning that may mislead voters.

Most judicial candidates on May 22 primary ballots sign committee's proffered pledge to campaign fairly

Each election year the Committee asks judicial candidates to sign a pledge that they will conduct their campaigns in accordance with the Kentucky Code of Judicial Conduct, and disavow advertising that uses false or misleading information that impugns the integrity of a candidate or the judicial system, or that erodes public trust and confident in the independence and impartiality of the judiciary.

Most of the candidates who are opposed in the May 22 primary have signed the pledge. Primaries are held in judicial races with three or more candidates, sending the top two vote-getters to the Nov. 6 general election. The primary-ballot candidates signing the pledge are listed below, with the number of candidates in the race if more than three. This list has been updated since the original April 26 posting, and will continue to be updated if more candidates on primary ballots submit agreements. Candidates who do NOT appear on the primary ballot are not listed; this list will be updated for the general election.

JUSTICE OF THE SUPREME COURT, Third District
Debra Hembree Lambert, Burnside
David Tapp, Somerset
JUDGE OF THE COURT of APPEALS, Seventh District, unexpired term (six candidates)
David Barber, Morehead
Kevin Sinnette, Ashland
Gene Smallwood, Whitesburg
Larry Thompson, Pikeville
CIRCUIT JUDGE, Family Court, unexpired term, 16th Circuit, 5th Division
Pete Roush, Covington
Terri King Schoborg, Covington
CIRCUIT JUDGE, Family Court, unexpired term, 22nd Circuit, 1st Division (four candidates)
Gregory Napier, Lexington
Nam Nguyen, Lexington
Eileen O'Brien, Lexington
CIRCUIT JUDGE, Family Court, unexpired term, 30th Circuit, 4th Division (four candidates)
Bryan Gatewood, Fisherville
Lauren Adams Ogden, Louisville
Shelley Santry, Louisville
DISTRICT JUDGE
6th District, 3rd Division
Daniel M. "Nick" Burlew, Owensboro
Misty Miller, Maceo
11th District, 2nd Division (five candidates)
Jude Hagan, Lebanon
Dawn McCauley, Lebanon
Jeremy Ancil Wood, Campbellsville
30th District, 3rd Division
Tracy Davis, Louisville
Jim Green, Prospect
30th District, 6th Division
Sean Delahanty, Louisville
Alex Gaddis, Louisville
30th District, 9th Division (four candidates)
Danny Alvarez, Louisville
Andre Bergeron, Louisville
Karen Faulkner, Louisville
33rd District (six candidates)
B. Cody Goehring, Hazard
Becky Williams Patterson, Hazard
Teresa Combs Reed, Hazard
Sheila Clemons Stoffel, Hazard
35th District, 1st Division (four candidates)
Joe Jett Friend, Pikeville
Amber Hunt Sisco, Pikeville
Robert F. Wright, Pikeville
35th District, 2nd Division (five candidates)

Tommy Chamberlin, Pikeville

Andrew Tyler Friend, Pikeville

Justin Cory Hamilton, Pikeville

39th District

Billy Oliver, Campton

Jarett Rose, Stanton

51st District, 2nd Division (four candidates)

David Curlin, Henderson

Leslie Newman, Henderson

Greg Sutton, Henderson

54th District, Division 2

Angela Greene, Union

Marcia Thomas, Petersburg