Could an appointed incumbent South Dakota circuit judge ask voters to “retain” the judge in a campaign ad?

Short answer Yes. The Committee said “retain” accurately conveyed the incumbent circuit judge’s request to continue in office, while “reelect” could mislead because the judge had been appointed rather than elected.
Bar
JUDICIAL-SD
Issued
July 17, 2006

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This page answers the general question as of 2006. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

An appointed incumbent circuit court judge asked whether campaign material could use the word “retain.” The judge had not previously won an election, so the Committee agreed that “reelect” could mislead voters.

The Committee concluded that “retain” accurately described the incumbent's request to continue serving. It found that the proposed ad clearly identified a circuit court judge, so voters would not reasonably confuse the candidate with a Supreme Court justice facing a retention vote.

The analysis applied Canon 5A(3)(d)(ii)'s prohibition on knowing misrepresentations about a judicial candidate's identity, qualifications or current position.

Currency note

This 2006 opinion applied South Dakota's then-current Code of Judicial Conduct and, where cited, election statutes. Later changes may affect its analysis; verify the current sources before relying on it.

In practice

The opinion approved the described “retain” wording for this appointed incumbent because the ad identified the circuit court office and did not falsely claim prior election.

Common questions

Q: Why did the Committee distinguish “reelect”?

A: The judge had been appointed and had not been elected before, so that word could be misleading.

Q: Why was “retain” acceptable?

A: The Committee said the ad accurately described continuing as a circuit court judge and did not misidentify the office.

Background and rules framework

The Committee applied former South Dakota Code of Judicial Conduct Canon 5A(3)(d)(ii) on knowing campaign misrepresentations. It referred to the separate Supreme Court retention system in article V, section 7 of the South Dakota Constitution.

Citations and references

  • South Dakota Code of Judicial Conduct Canon 5A(3)(d)(ii).
  • S.D. Const. art. V, § 7.

See also

Source

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