Would the Committee assess a judge’s proposed candidate endorsements against a constitutional challenge to Canon 5?

Plain-English summary

A circuit judge wanted to endorse a judicial candidate and another candidate publicly. He asked the Committee to evaluate the Code’s endorsement restriction in light of federal litigation concerning a Minnesota judicial-campaign rule.

The Committee declined to undertake constitutional interpretation. It said its guidelines barred opinions on issues of law and described its task as interpreting and applying Arkansas’s Code, not invalidating or rewriting it. The opinion quoted then-current Canon 5(A)(1)(b)’s public-endorsement restriction and left any change to the judiciary.

In practice

The opinion addresses the Committee’s authority to decide the constitutional challenge. It does not hold the Arkansas rule unconstitutional or change its text.

Common questions

Q: Did the Committee rule the endorsement ban unconstitutional?

A: No. It expressly declined that constitutional inquiry.

Q: Who did it identify as able to change the Code?

A: The opinion said that task rested with the judiciary and noted that the Arkansas Supreme Court could respond to federal decisions.

Background and rules framework

The opinion quotes Arkansas Code of Judicial Conduct Canon 5(A)(1)(b) and discusses the Committee’s procedural limit on addressing issues of law. It refers to federal litigation for the question posed, without deciding its effect on Arkansas’s Code.

Citations and references

• Arkansas Code of Judicial Conduct Canon 5(A)(1)(b).
• Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005), cited in the opinion.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2006-02/

Original opinion text

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

May 8, 2006

Circuit Judge Marion Humphrey

Sixth Judicial District, First Division

401 West Markham, Room 420

Little Rock, AR 72201

RE: Advisory Opinion 2006-02 CORRECTED OPINION

Dear Judge Humphrey:

You have asked this committee to examine Canon 5(A)(1)(b), which states that a judge shall not . . . “publicly endorse or publicly oppose another candidate for public office.” You state that you wish to publicly endorse a judicial candidate and another candidate in the May 2006 elections.

In particular, you ask us to evaluate the Canon in light of Republican Party of Minnesota vs.

White, 416 F.3d 738 (8th Cir. 2005) cert. denied by Dimick v. Republican Party of Minnesota,

126 S. Ct. 1165 (2006). That splintered opinion held other aspects of Minnesota’s Canon 5

(A)(1) unconstitutional. See David B. Bogard, The Lifting of Judicial Speech Restraint, 26 U.Ark Little Rock Law Review 1 (2003).

We respectfully decline to engage in that constitutional interpretation. Our guidelines expressly state: “The opinion shall not address issues of law. . .” Our task is to interpret the Code of Judicial Conduct and to apply it to factual patterns not previously considered. It is not our role to hold that a provision of the Code is unconstitutional. Nor is it our role to rewrite the Code. That task rests with the judiciary. See Kansas Judicial Ethics Advisory Panel Opinion JE 139 (April 17, 2006).

Further, the Arkansas Supreme Court has on occasion modified the Code without a formal request or without the opportunity for public comment. If so inclined, the Supreme Court may respond to the federal decisions.

For the committee,

Howard W. Brill