W. Va. Code of Jud. Conduct R. 4.1

History

COMMENT General Conditions [1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges, judges-designate, and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges, judges-designate, and judicial candidates, taking into account the various methods of selecting judges. [2] When a person becomes a judge-designate or judicial candidate, this Canon becomes applicable to his or her conduct. Participation In Political Activities [3] Public confidence in the independence and impartiality of the judiciary is eroded if judges, judges-designate, or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations. [4] Paragraphs (A)(2) and (A)(3) prohibit judges, judges-designate, and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf. See Rule 4.2(B)(2). [5] Members of the families of judges, judges-designate, and judicial candidates are free to engage in their own political activity, including running for public office. Except for the spouse of the judge or judicial candidate as provided in paragraphs (A)(3) and (5): (1) there is no “family exception” to the prohibitions in paragraphs (A)(3) and (5) against a judge or candidate publicly endorsing candidates for public office and making contributions to a candidate for public office; (2) a judge, judge-designate, or judicial candidate must not become involved in, or publicly associated with a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity. The judge, judge-designate, or judicial candidate may attend events advancing the candidacy of the spouse, such as riding in a parade, attending an event at the family home, or displaying signs. A judge, judge-designate, or judicial candidate may appear in a photograph to be used in the spouse’s campaign for public office. However, a judge must not be depicted in judicial robes or provide authorization to be referred to as a judge, judge-designate, or judicial candidate in undertaking these activities, as this may suggest the prestige of judicial office is being misused. [6] Judges, judges-designate, and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3). Statements and Comments Made During a Campaign for Judicial Office [7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(9) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a while not materially misleading. [8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, third parties, or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not violate paragraphs (A)(9), (A)(10), or (A)(11), the candidate may make a factually accurate public response. [9] Subject to paragraph (A)(10), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although it is preferable for someone else to respond if the allegations relate to a pending case. [10] Paragraph (A)(10) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter. Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office [11] 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 must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices. [12] Paragraph (A)(11) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. [13] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views. [14] A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse. [15] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(11) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(11), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11. Clerk's Notes on Rule 4.1 Rule 4.1 and its Comments are based on the Model Code. The restrictions on partisan activities that are contained in Paragraphs (A)(5) through (7) of Rule 4.1 of the Model Code are not included because they are subject to invalidation under First Amendment principles. The general principle set out in Rule 4.1(A)(4) of the Model Code was modified and divided with the prohibition on making a contribution to a candidate for political office being moved to Rule 4.1(A)(5), and the subsequent provisions of the Model Code renumbered. This modification makes it easier to reconcile with the exceptions for active candidates that are contained in Rule 4.2. Rule 4.1was also modified to allow for the public endorsement of a spouse and added additional language to Rule 4.1(b) regarding false or misleading statements. A cross reference in Comment [4] is also eliminated because the referenced exception in Rule 4.2(B)(3) of the Model Code was not adopted. Rule 4.1(A)(8) is a modified version of Rule 4.1(A)(7) of the Model Code and prohibits requiring court staff to participate in a campaign instead of the blanket prohibition that is in the Model Code. This modification is consistent with the language of Rule 2.12(C). Finally, the Comments [5] and [8] were modified to comply with changes to the Rule and to provide additional guidance to judges and judicial candidates regarding the scope of public appearances.