May a magistrate candidate participate in a local school debate?

Plain-English summary

A magistrate candidate asked whether joining a school debate would violate the then-current Code of Judicial Conduct. The local prosecutor had warned that the candidate should say little beyond a name, candidacy, and willingness to serve.

The Commission found that debate participation was not a per se Canon 5 violation and noted the provision allowing a candidate to speak to gatherings on the candidate’s behalf. It explained that the content of the candidate’s statements, including endorsements, pledges, commitments on likely cases, and misrepresentations, determines compliance. It urged attention to Canon 5 and suggested having the moderator read the applicable provisions to the audience.

In practice

The opinion distinguishes taking part in the debate from what the candidate says there. It applies the then-current Canon 5 limits to the candidate’s statements.

Common questions

Q: Is debate participation itself prohibited?

A: No. The Commission says it is not a per se Canon 5 violation.

Q: What determines whether statements violate the Code?

A: The opinion points to the limits on endorsements, pledges, commitments concerning likely matters, and knowing misrepresentations.

Q: What did the Commission say about the moderator?

A: It urged candidates to have the moderator read the relevant Canon 5 provisions to the audience.

Background and rules framework

Former Canon 5C(1)(b)(i) permitted a judicial candidate to speak at gatherings on the candidate’s behalf. The opinion also discusses the speech restrictions in Canon 5A and notes Republican Party of Minnesota v. White while stating the then-current Code remained in effect.

Citations and references

West Virginia Code of Judicial Conduct (former):

• Canon 5A(1), political activity.
• Canon 5A(3)(d)–(e), candidate statements and responses.
• Canon 5C(1)(a)(2) and 5C(1)(b)(i), party identification and speaking to gatherings.

Case cited:

• Republican Party of Minnesota v. White, 536 U.S. 765 (2002), judicial-campaign speech.

Other opinions cited:

• JIC Advisory Opinions 8/19/2005 and 3/24/2008, continuing force of the Code.

See also

• WV JIC Advisory Opinion 2014-04
• WV JIC Advisory Opinion 2013-08

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2012-20, redacted

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(804) 558-0169 ¢ FAX (304) 558-0831

October 25, 2012

Re: — JIC Advisory Opinion 2012-20.
Dear Magistrate

Your request for an advisory opinion was recently reviewed by the Judicial Investigation Commission. You indicated that you were invited to participate in a debate that would be held at a local school. You further state that the Prosecuting Attorney has rendered an opinion that involvement in the debate would “greatly risk violating Canon 5 [of the Code of Judicial Conduct] and [judicial] candidates should refrain from participating in such ‘debates’ other than to state their name, candidacy for the office and willingness to serve.” You want to know if you may participate in the debate.

Mere participation in a debate is not a per se violation of Canon 5 of the Code of Judicial Conduct. Indeed, Canon 5C(1)(b)(i) allows a candidate for judicial office to “speak to gatherings on his or her own behalf.”

A potential violation of Canon 5 depends only on what a judicial candidate says during the debate. Several provisions of Canon 5 set forth the parameters of what a candidate can and cannot say during a campaign. Canon 5A(1) states that a judge or a candidate for judicial office shall not publicly endorse or publicly oppose another candidate for public office, make speeches on behalf of a political organization or solicit funds for a political organization or candidate. Canon 5A({3)(d) states:

JIC Advisory Opinion 2012-20
October 25,2012
Page 2

A candidate for a judicial office shall not:

(i) Make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) Make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) Knowingly misrepresent the identity, qualifications, present positions or other fact concerning the candidate or an opponent.

Moreover, the Commentary states that “a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views.” The Commentary also notes that Section 5A(3)(d) does not prohibit a candidate from making pledges or promises respecting improvements in court administration. Canon SA(3)(e) allows a judicial candidate to “respond to personal attacks or attacks on [his/her] record as long as the response does not violate Section SA(3){d).” Lastly, Canon 5C(1){a)(2) allows a judicial candidate to identify himself or herself as a member of a political party.

Judicial candidates are strongly encouraged to follow the tenets of Canon 5 when speaking publicly at events such as debates. Candidates are also urged to have the moderator read the relevant provisions of Canon 5 to the audience so that it will know the limitations imposed on all who participate. The Commission is not unmindful of Republican Party of Minnesota v. White, 536 U.S. 765 (2002) in reaching this conclusion. However, we have consistently stated that “[t]he current code remains in effect until the State Supreme Court modifies or amends the code.” See JIC Advisory Opinions 8/19/2005 and 3/24/2008.

It is hoped that this opinion fully addresses the ethical issues which you have raised. If there is any further question regarding this matter do not hesitate to contact the Commission.

Sincerely,

Ze ANLV /Yr—-_

Ronald E. Wilson, Chairperson
Judicial Investigation Commission

REW/tat