When must a judicial candidate disavow a false statement by an independent PAC?

Plain-English summary

The Commission clarified its earlier Opinion 2018-22 on attacks by independent political committees in judicial campaigns. It said mere awareness of third-party campaigning does not create a duty to monitor every statement.

For a false-statement disavowal duty, the statement must be factual rather than opinion, significant, actually false or materially misleading, and known by the candidate to be false. Once those criteria are met, the opinion calls for a timely press release to area news media and a prompt letter telling the PAC to stop the statement. The Commission also called for an objective, case-by-case assessment of the circumstances.

In practice

The opinion identifies a specific threshold for a candidate’s response to an independent group’s factual attack and describes the response after that threshold is met.

Common questions

Q: Does knowing a PAC is campaigning create a duty to monitor all its claims?

A: No. The Commission said awareness alone is insufficient.

Q: What kind of statement triggers disavowal?

A: A significant factual assertion that is actually false or materially misleading and whose falsity the candidate knows.

Q: How does the opinion say to respond?

A: Issue a timely release to area media and promptly tell the PAC in writing to stop the false statement.

Background and rules framework

The opinion revisits Rule 4.1(A)(9)-(11) and (B) and its earlier Opinion 2018-22. It cites In re District Court Judge for an objective reasonable-care test and In re Callaghan for a substantial-truth approach to minor inaccuracies.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 4.1(A)(9)-(11), (B) and Comment 8, independent campaign statements and judicial candidate conduct.

Cases:

• In re District Court Judge, 382 P.3d 480 (Alaska 2017), objective candidate-response test.
• In re Callaghan, 238 W. Va. 495, 796 S.E.2d 604 (2017), substantial truth.
• State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 480 S.E.2d 548 (1996), quoted substantial-truth rule.

Other opinions cited:

• JIC Advisory Opinion 2018-22, independent PAC campaign statements.

See also

• WV JIC Advisory Opinion 2019-18
• WV JIC Advisory Opinion 2020-14

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2019-15, 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
(304) 558-0169 • FAX (304) 558-0831

June 21, 2019

JIC ADVISORY OPINION 2019-15

Rule 2.13(c) of the Rules of Judicial Disciplinary Procedure gives the Judicial Investigation Commission the authmity to promulgate advisory opinions on ethical issues pe1taining to the Code of Judicial Conduct. The Rule provides that "[t]he Commission may render in writing such advisory opinion as it may deem approp1iate. Id.

In JIC Advisory Opinion 2018-22, issued on December 17, 2018, the Commission was asked, among other things, what a judicial candidate's obligations were if a third- party political action c01mnittee ("PAC") makes false or misleading statements about an opponent in a campaign. We held that judicial candidates must disavow attacks and request a third party or PAC to cease and desist: (1) any false or misleading statements made about opponents; (2) any statements that do not accurately reflect the duties and role of a judge; or (3) any statements that indicate that a judge or candidate is not neutral and detached but would be biased in favor of or against an individual, group or legal issue. In reaching these conclusions, the Commission relied on Rule 4.1 (A)(9), (10) and (11) and Rule 4.1 (B) of the Code of Judicial Conduct.

The purpose of this opinion is to provide some understanding of when and where the obligations to disavow and request the third-patty or PAC to cease and desist arise. Category Nos. (2) and (3) above are self-explanatory. With respect to Category No. (1), we do not believe that a judicial candidate is obligated to disavow every third-party or PAC misrepresentation. Indeed, Cmmnent [8] to Rule 4.1 (B) above states in pertinent pa1t " ... the candidate may disavow the attacks, and request the third party to cease and desist." However, C01mnent [8] should not be construed and we do not mean to suggest that a judicial candidate's failure to address a known third-patty or PAC misrepresentation would never violate the Code of Judicial Conduct. We believe that there are times "where a candidate must address an independent [third-pa1ty] statement in order to uphold judicial integrity and independence, avoid impropriety, or maintain dignity" In re District Court Judge, 382 P.3d 480, 486 (Alaska 2017).

A judicial candidate's awareness of the third-patty or PAC campaign, is not, in and of itself, enough to impose a duty to monitor and address the group's statements.

JIC Advisory Opinion 2019
June 2 1, 2019
Page 2 of2

Importantly, the Commission is of the view that the obligation to disavow is not triggered until the following criteria are met: (a) the statement must involve a fact and not an opinion; (b) the fact must be substantive and significant; (c) the misstatement must actually be false or a mate1ial misrepresentation; and (d) the judicial candidate has knowledge of the third-pmiy or PAC's factual statement and its falsity. Once the obligation to disavow is initiated, the Commission finds that the situation is resolved through the timely issuance of a press release to all area news media and a prompt letter to third-party PAC notifying it to immediately stop running the false statement in question.

Like the Court in District Court Judge, the Commission believes that an objective test should be applied to determine whether a judicial candidate's failure to address a false or misleading statement by a third-party or PAC creates a likely violation of the Code of Judicial Conduct. The test is as follows:

[W]e evaluate "whether the judge failed 'to use reasonable care to prevent objectively reasonable persons from believing an impropriety was afoot. "' This duty is "one of taking 'reasonable precautions' to avoid having 'a negative effect on the confidence of the thinking public in the administration of justice.'

Id.

Detennination should be made on a case by case basis after a careful review of the totality of the circumstances. As the State Supreme Comi noted:

The law .. . takes but one approach to the question of falsity, regardless of the fo1m of the communication. It overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the charge be justified. A statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.

In the Matter of Callaghan, 238 W. Va. 495, 518, 796 S.E.2d 604, 627 (2017), quoting Syl. Pt. 4, in part, State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548 (1996)

Sincerely,

The Honorable Alan D. Ivloats, Chairperson Judicial Investigation C01mnission
AMO/ tat