May a currently serving appointed city judge call himself “Judge” in campaign advertising for circuit judge?

Plain-English summary

A part-time appointed city judge running for circuit judge asked whether campaign materials could call him “Judge.” The Committee concluded that he was a judge despite the part-time and appointed nature of his current office, so the title did not misstate his present position.

The Committee distinguished a statute governing the name printed on an election ballot from the Code’s rule on campaign advertising. It said the statute did not control the advertising question. It also said a former judge who was no longer serving could list prior positions but could not describe himself as currently “Judge” under the Code.

Common questions

Q: Does the answer depend on having won election to the present judicial office?

A: No. The Committee said the current city judge remained a judge even though appointed and part-time.

Q: Did the opinion decide what title appears on the ballot?

A: It noted Ark. Code Ann. 7-7-305 governed ballot names and treated campaign advertising as a separate question.

Background and rules framework

The Committee applied then-current Canon 5(A)(3)(d)(iii), which barred knowing misrepresentation of a candidate’s present position, and the Code’s continuing part-time judge application provision. It distinguished the separate ballot-name statute.

Citations and references

• Arkansas Code of Judicial Conduct Canon 5(A)(3)(d)(iii) and Application Section (B).
• Ark. Code Ann. 7-7-305.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-02-03/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

February 21, 2002

William W. Benton F. Wilson Bynum, Jr.

Attorney at Law Attorney at Law

P. O. Box 8926 P. O. Box 7268

Pine Bluff, AR 71611 Pine Bluff, AR 71611

James L. Williams, II James L. Hall

Attorney at Law Attorney at Law

P. O. Box 34085 P. O. Box 1492

Little Rock, AR 72203 Pine Bluff, AR 71611

RE: Advisory Opinion # 2002-03

Gentlemen:

This committee has been asked whether a judicial candidate for Circuit Judge may describe himself in his campaign materials, advertisements and public statements as "Judge", when he has served for the past six years as a part time city judge. The position of city judge is an appointive, rather than elective position.

The Code of Judicial Conduct views a city judge as a Continuing Part-time Judge, who is required to comply with most provisions of the Code. See Application Section (B). The Code bars a judicial candidate from knowingly misrepresenting "the identity, qualifications, present position or other facts concerning the candidate or an opponent." Canon 5(A)(3)(d)(iii). Regardless of whether the candidate is appointed or elected, full time or part time, he is a judge. Accordingly, we conclude that the Code does not bar him from describing himself as a "City Judge" or a "Judge" in the campaign. The term does not misrepresent his present position. It does not suggest he is an incumbent; it does not urge his re-election.

We are aware of Ark. Code Ann. 7-7-305 which states that a person may use the prefix "Judge" in an election for a judgeship only if the person is currently serving in a judicial position to which the person has been elected. However, that statute prescribes the name that will be used on the election ballot. The statute does not purport to control campaign advertising by judicial candidates.

We understand the potential elective disadvantage to other judicial candidates who may have been judges in the past, perhaps even to elective positions. But because they are not presently serving as a judge, the Code bars them from calling themselves "Judge." However, the Code permits them to list their prior positions and their qualifications.

The Supreme Court could amend the language of the Code or the comments to it. Likewise, the Supreme Court could provide consistency by amending the Code provisions on campaign advertising to correspond to the statute on ballot names. But it has not yet done so.

As we have stated in prior opinions, our task is not to rewrite the Code, but to interpret its clear language. We conclude that under the language of the Code it is not misleading for a city judge to describe himself or herself as "Judge" in his campaign advertising.

Very truly yours,

Howard W. Brill

For the Committee