May an appointed incumbent judge use the word retain in a contested partisan-election campaign?
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This page answers the general question as of 1999. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The judge had been appointed to a seat and was running in a contested election for that seat. The question was whether campaign material could ask voters to “retain” the judge when New Mexico also held distinct judicial retention elections. The committee cited Rule 21-700's bans on misrepresenting a candidate's position or other material facts and on misleading advertising. Source: Opinion 99-07, pp. 1–2
The committee reasoned that an appointed incumbent who wins the partisan contest remains in office, and that the ballot distinguishes partisan elections from retention elections. It concluded that “retain” was not misleading for this candidate. Source: Opinion 99-07, p. 2
In practice
The opinion addresses this appointed incumbent's use of “retain” in a partisan election, subject to the Code's general restriction on misleading campaign material. Source: Opinion 99-07, pp. 1–2
Common questions
Q: Did the separate retention-election ballot make the word misleading?
A: The committee said no, because the ballot made the election types clear and an elected incumbent would remain in office. Source: Opinion 99-07, p. 2
Q: Did the opinion allow misleading election advertising generally?
A: No. It expressly applied Rule 21-700's restrictions on false or misleading candidate material. Source: Opinion 99-07, pp. 1–2
Background and rules framework
The committee applied then-current New Mexico Code of Judicial Conduct Rule 21-700 to advertising by a judicial candidate in a partisan contest. Source: Opinion 99-07, pp. 1–2
Citations and references
- New Mexico Code of Judicial Conduct Rule 21-700. Source: Opinion 99-07, pp. 1–2
See also
Source
- Landing page: New Mexico judicial advisory opinions
- Original PDF: Judicial Advisory Opinion 99-07
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
STATE OF NEW MEXICO
SECOND JUDICIAL DISTRICT
DIVISION IV
P-O. BOX 488
CHAMBERS OF
ALBUQUERQUE, NM 87103
FRANK H. ALLEN, JR.
(505) 841-7455
DISTRICT JUOGE
July 22, 1999
The Honorable
Re: Judicial Advisory Opinion 99-07
Dear Judge
You have requested an opinion from this committee as to whether an appointed judge running for office in a contested election for the seat to which the judge was appointed can use the word “retain” in association with campaign related literature.
Important to this question is the following section of 21-700 Elections and political activity.
B. Candidates for election to judicial office in partisan, non-partisan and retention elections including judges, lawyers and non-lawyers are permitted to participate in the electoral process, subject to the requirements that all candidates:
……
(4) shall not:
……
(d) misrepresent the candidate’s identity, qualifications, present position or other material fact;
…….
(6) may use advertising that does not contain any misleading contents, provided that the advertising is within the bounds of proper judicial decorum and does not, in non-partisan elections, contain any reference to the candidate's affiliation with a political party;
Therefore, the word "retain" may be used in political literature in a partisan election if it is not misleading and does not misrepresent the candidate' s identity , qualifications, present position or other material fact.
As we know in any election for the judiciary in New Mexico, we will have both partisan and retention elections on the same ballot. Is using the word "retain" in a partisan election by any incumbent judge confusing or misleading? Our committee does not believe so. An appointed judge running in a partisan election is retained in office if elected just as a judge running in a retention election is retained. The ballot clearly shows the difference between the two forms of elections for the judiciary. It is our opinion that the use of the word "retain" by an appointed judge in a partisan election is not misleading nor does it misrepresent the candidate's present position.
Very truly yours,
Frank H. Allen, Jr.
Chairman
Judicial Advisory Committee
FHA/mav
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