Faughnan on Ethics Judicial (S)Election Ethics & Te 2014 Campaign by Brian S. Faughnan M


any questions surrounding the future of judicial selection in Tennessee remain unanswered as 2013 begins to wind to a close (or at least at the time this column was submitted


in October) – such questions include how the special Tennessee Supreme Court will rule on the challenge to constitutionality of the Tennessee Plan mounted by Nashville lawyer John Jay Hooker, whether the efforts at amending the Tennessee Constitution to establish what would largely be a blend of the federal approach and the Tennessee Plan will be successful, and whether the General Assembly (having left the process for filling judicial vacancies in a mess at the end of its last session) will attempt to pass legislation in advance of the 2014 ballot initiative on amending the Tennessee Constitution.


Another question – whether Governor Haslam has the power to fill judicial vacancies despite the demise of the Judicial


Nominating Commission – was answered (though not in a binding way) by the Tennessee Attorney General, who on October 9, 2013 opined that the Governor did have such power. AG Opinion 13- 76 involves some pretty significant mental gymnastics to get to a “yes” answer and, in addition to pushing the envelope of statutory construction on Tenn. Code Ann. § 17-4-113, ignores altogether the fact that a different statute (Tenn. Code Ann. § 17-4-118) applies to vacancies at the trial court level. Tus, whether filling vacancies over the next year or so will be a straightforward process or the stuff of contested litigation and uncertainty remains unclear. One aspect of the future is clear, however. Tere will be judicial


elections throughout all of Tennessee in August 2014: trial court judges will run in contested elections, and appellate judges and justices will stand for retention elections.


Tis octennial event


presents an important time for Tennessee lawyers to be reminded about the ethics issues raised by judicial campaigns and, particularly so, given that this is the first set of statewide judicial elections to take place since the 2012 overhaul of the Tennessee Code of Judicial Conduct (Tenn. Sup. Ct. R. 10). For lawyers who are actually running for judicial office, the most fundamental point to remember is that your conduct is governed not just by the attorney ethics rules, but also by the portions of Tenn. Sup. Ct. R. 10 applicable to judicial candidates – Rules of Judicial Conduct 4.1 - 4.4. (See Tenn. Sup. Ct. R. 8, RPC 8.2(b)). Most of these additional ethical restrictions, not surprisingly, revolve around issues of campaign speech, fundraising, and other political activity of judicial candidates. RJC 4.4(a) provides judicial candidates with the authority to establish campaign committees “to manage and conduct” their campaign while personally remaining responsible for ensuring the committee acts in compliance with the other ethics rules governing the candidate. Rule 4.4(b) requires a judicial candidate direct his/her campaign committee “to solicit and accept only” campaign contributions allowable by law, to only solicit and accept contributions during a tightly-defined time period, and “to comply


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with all applicable requirements for disclosure and divestiture of campaign contributions.”


RJC 4.1 identifies a series of activities that judicial candidates


are both generally prohibited from undertaking and required to “take reasonable measures to ensure” that others on their behalf do not undertake. Tese activities include: (1) holding office, leading, or making speeches on behalf of a political organization; (2) publicly endorsing or opposing any candidate for public office; (3) soliciting or making contributions to political organizations or candidates for office; (4) “personally” soliciting or accepting campaign contributions other than through the campaign committee mechanism permitted by RJC 4.4; (5) using campaign contributions for private benefit or using court resources for campaign purposes; (6) making any false or misleading statement knowingly or with reckless disregard for the truth; (7) making any statement “that would reasonably be expected to affect the outcome or impair the fairness of” any pending or impending court matters; and (8) as to cases, controversies, or issues likely to come before the court, making any “pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” More than one of the restrictions set out in RJC 4.1 are of such scope as to invite future First Amendment challenges, particularly given that a state’s decision to have their judges elected by the public brings with it the fact that campaign speech of public officials is long recognized as being core political speech for purposes of the protections afforded by the First Amendment, and applicable to the states by the Fourteenth Amendment. Yet, very few practicing lawyers or sitting judges, have any real interest in being the subject of disciplinary proceedings, so most judicial candidates will simply opt to comply with the prohibitions in RJC 4.1. RJC 4.2 is a more specific, and more tailored, rule applying only to judicial candidates in public elections – as opposed to judicial candidates for appointed positions.


(RJC 4.3 being the portion


of Canon 4 that applies only to judicial candidates for appointed positions.) RJC 4.2(b) authorizes the creation of a campaign committee consistent with RJC 4.4 during a proscribed time frame in relation to the date of the election in question. RJC 4.2(a) also explains that, regardless of whether a retention election or a partisan or nonpartisan contested election, judicial candidates must “act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary,” comply with all relevant election, campaign, and fundraising laws, and must “review and approve the content of all campaign statements and materials” either produced by the candidate or by an authorized campaign committee and take “reasonable measures to ensure” that other persons do not do for the candidate what the candidate cannot do. Finally, RJC 4.2(c) gives back some of the political rights that would otherwise be foreclosed by RJC 4.1’s general prohibitions.


Tis subsection indicates that


judicial candidates actually may purchase tickets for or attend political gatherings, may identify himself/herself as a member of a political party, and may contribute to political organizations or political candidates in an amount up to the limits provided by Tennessee law.


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