CANON 4

A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE*, INTEGRITY,* OR IMPARTIALITY* OF THE JUDICIARY.

RULE 4.1

Political and Campaign Activities of Judges and Judicial Candidates* in General

(A) Except as permitted in this Canon, a judge or a judicial candidate shall not:

(1) act as a leader in, or hold an office in, a political organization;*

(2) make speeches on behalf of a political organization;

(3) publicly endorse or oppose a candidate for any public office;

(4) solicit funds for, pay an assessment to, or make a contribution* to a political organization or a candidate for public office;

(5) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office;

(6) publicly identify himself or herself as a member of a political organization, except as necessary to vote in an election;

(7) seek, accept, or use endorsements from a political organization;

(8) use court staff or make excessive use of court facilities or other court resources in seeking judicial office;

(9) knowingly,* or with reckless disregard for the truth, make any false or misleading statement in seeking judicial office;

(10) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or

(11) make pledges, promises, or commitments other than the faithful, impartial and diligent performance of judicial duties.

(B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under this Canon.

COMMENT

GENERAL CONSIDERATIONS

[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates.

PARTICIPATION IN POLITICAL ACTIVITIES

[2] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence.

[3] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no “family exception” to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.

[4] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections.

STATEMENTS AND COMMENTS MADE DURING A CAMPAIGN FOR JUDICIAL OFFICE

[5]Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(9) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.

[6] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by third parties or the media. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate’s integrity or fitness for judicial office. As long as the candidate does not violate other provisions of this Canon, the candidate may make a factually accurate public response.

[7] Subject to the provisions of this Canon, a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her while seeking judicial office, although it is preferable for someone else to respond if the allegations relate to a pending case.

[8] Paragraph (A)(10) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter.

PLEDGES, PROMISES, OR COMMITMENTS

[9] The role of a judge is different from that of a legislator or executive branch official, even when the judge is subject to public election. Campaigns for judicial office must be conducted differently from campaigns for other offices.

[10] Paragraph (A)(11) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the judicial office.

[11] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result.

[12] A judicial candidate may make promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.

RULE 4.2

Political and Campaign Activities of Judges in Retention Elections

(A) A judge standing for retention shall act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary and shall encourage members of the judge’s family* to adhere to the same standards of conduct in support of the judge that apply to the judge.

(B) If a judge standing for retention has drawn public opposition, the judge may operate a campaign for office subject to the following limitations:

(1) The judge shall comply with all applicable election, election campaign, and election campaign fund-raising laws* and regulations ;

(2) The judge shall not directly solicit* or accept campaign funds or solicit public statements of support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support. Committees may solicit campaign contributions* and public statements of support from lawyers and non-lawyers. Surplus contributions held by the committee after the election shall be contributed without public attribution to the Utah Bar Foundation. Committees must not permit the use of campaign contributions for the private benefit of the judge or members of the judge’s family;

(3) The judge shall review and approve the content of all campaign statements and materials produced by his or her campaign committee before their dissemination;

(4) The judge may speak to public gatherings on the judge’s own behalf;

(5) The judge may respond to personal attacks or attacks on the judge’s record, provided the response is consistent with other provisions of this Rule; and

(6) When a party or lawyer who made a contribution of $50 or more to the judge’s campaign committee appears in a case, the judge shall disclose the contribution to the parties. The requirement to disclose shall continue from the time the judge forms a campaign committee until 180 days after the judge’s retention election. COMMENT

[1] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Judges are responsible for compliance with the requirements of election law and other applicable law and for the activities of their campaign committees.

[2] At the start of a campaign, the judge must instruct the campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law. Although lawyers and others who might appear before a retained judge are permitted to make campaign contributions, the judge should instruct his or her campaign committee to be especially cautious in connection with such contributions, so that they do not create grounds for disqualification if the judge is retained. See Rule 2.11.

COMMENT

RULE 4.3

Activities of Judges Who Become Candidates for Nonjudicial Office

(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law* to continue to hold judicial office.

(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code.

COMMENT

[1] In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office together with the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, dictate that a judge who wishes to run for such an office must resign upon becoming a candidate.

[2] The “resign to run” rule set forth in paragraph (A) ensures that a judge cannot use the judicial office to promote his or her candidacy and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the “resign to run” rule.