Home Table of Contents

Canon 4. A judge or candidate for judicial office shall not engage in political or campaign act...

Baldwin's Kentucky Revised Statutes AnnotatedRules of the Supreme CourtEffective: March 1, 2020

Baldwin's Kentucky Revised Statutes Annotated
Rules of the Supreme Court
IV Judicial Conduct Commission (Refs & Annos)
SCR 4.300. Kentucky Code of Judicial Conduct
Effective: March 1, 2020
Rules of the Supreme Court (SCR), Canon 4
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. this canon is to be interpreted consistent with the first amendment to the United States Constitution, other constitutional requirements, statutes, other court rules, and decisional law
Rule 4.1. Political and Campaign Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law,* or by Rules 4.2, 4.3, and 4.4, 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, except that a judge or judicial candidate* may purchase tickets to political gatherings for the judge or candidate and one guest, may attend political gatherings, and may speak to such gatherings on the judge's or candidate's own behalf;
(6) publicly identify himself or herself as a nominee of a political organization;
(7) seek, accept, or use endorsements from a political organization;
(8) personally solicit* or accept financial or in-kind campaign contributions other than through a campaign committee authorized by Rule 4.4;
(9) use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others;
(10) use court staff, facilities, or other court resources in a campaign for judicial office;
(11) knowingly,* or with reckless disregard for the truth, make any false statement of material fact;
(12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* in any court; or
(13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.
(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 paragraph (A).
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, taking into account Kentucky's non-partisan election of judges.
[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.
Participation in Political Activities
[3] 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. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations.
[4] Section 117 of the Kentucky Constitution requires that judges be elected on a nonpartisan basis; it forms the basis for “Kentucky's compelling interest in preventing judges from becoming (or being perceived as becoming) part of partisan political machines.” See Winter v. Wolnitzek, 834 F.3d 681, 691 (6th Cir. 2016). “Judges are not politicians, even when they come to the bench by way of the ballot. And a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1662 (2015).
Paragraph (A)(1)'s proscription against acting as a leader of a political organization furthers this compelling interest in diminishing reliance on political parties in judicial selection, and in preserving public confidence in judges, by removing judges and judicial candidates from involvement in the political campaigns of others. Acting as a leader involves “advanc[ing] the political agenda of the party in a less formal way [than holding an office] through proactive planning, organizing, directing, and controlling of party functions with the goal of achieving success for the political party. These less formalized, leader-without-title, positions would include, for example, acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title ....” Winter v. Wolnitzek, 482 S.W.3d 768, 777-78 (Ky. 2016). A judge or judicial candidate also is prohibited from hosting political events. In addition to fund raisers for other candidates, political events include events sponsored by or associated with political organizations.
[5] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. These Rules do not prohibit candidates from campaigning on their own behalf.
[6] Although members of the families of judges and judicial candidates* are free to engage in their own political activity, including running for public office, no “family exception” exists 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.
[7] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3).
[8] Paragraph A(4) does not prohibit a judge or judicial candidate from making contributions to his or her own campaign.
[9] A judge or judicial candidate “in purchasing tickets to political gatherings,” pursuant to paragraph A(5), should be careful that he or she does not create the impression that the purchase is solely a contribution to another candidate or political organization, which is prohibited, but, rather, is for the advancement of the judge or judicial candidate purchasing the ticket(s).
Campaign Conduct
[10] “States may regulate judicial elections differently than they regulate political elections ....” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1667 (2015). “Kentucky has a right to prevent candidates from identifying themselves as the nominee of a political party of a judicial seat.” Winter v. Wolnitzek, 834 F.3d 681, 689 (6th Cir. 2016). By prohibiting a judge or judicial candidate from seeking, accepting, or using endorsements from a political organization, paragraph (A)(7) is designed to further this right and the requirement in Section 117 of the Kentucky Constitution that judges be elected on a nonpartisan basis. A political organization's endorsement of a candidate is but slightly removed from the judge or candidate's nomination as the political organization's official candidate. Candidates remain free to announce their party affiliation but cannot render hollow the right of “citizens of the Commonwealth ... to vote for their judges in nonpartisan elections,” id., by seeking, accepting, or using endorsements of political organizations in their campaigns.
A judge or judicial candidate is not required to disavow an endorsement to avoid being deemed to have accepted it. A judge or judicial candidate uses an endorsement of a political organization when the judge or judicial candidate employs or displays the endorsement in oral, written, or electronic communication.
[11] Paragraph A(10) does not prohibit court staff from using their own time, while not being paid as court staff, to assist in a campaign for judicial office consistent with Part III of the Administrative Procedures of the Kentucky Court of Justice, Personnel Policies.
Statements and Comments Made during a Campaign for Judicial Office
[12] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(11) obligates candidates and their committees to refrain from making statements that are false, or that omit facts necessary to make the communication considered as a whole not materially false.
[13] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations made by opposing candidates, 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 paragraphs (A)(11), (A)(12), or (A)(13), the candidate may make a factually accurate public response. In addition, when an independent third party has made unwarranted attacks on a candidate's opponent, the candidate may disavow the attacks, and request the third party to cease and desist.
[14] Subject to paragraph (A)(12), a judicial candidate is permitted to respond directly to false, misleading, or unfair allegations made against him or her during a campaign, although someone else, preferably, should respond if the allegations relate to a pending case. The judicial candidate shall make every effort to ensure that any response regarding a pending case does not impair the fairness of the pending judicial proceedings.
[15] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair the fairness of pending 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 Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office
[16] 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 should be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 allow candidates to conduct campaigns that provide voters with sufficient information to permit them to distinguish between candidates and make informed electoral choices.
[17] Paragraph (A)(13) 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 judicial office.
[18] This Rule does not prohibit a judge or judicial candidate from expressing, during a campaign, general legal principles, so long as those statements would not reasonably be expected to affect the outcome or impair the fairness of a pending matter or to constitute a commitment to reach a particular result in pending or future matters. 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. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.
[19] In prohibiting issue-based commitments “inconsistent with the impartial performance of the adjudicative duties of judicial office,” Kentucky has a compelling interest in forbidding judges and candidates from showing bias in favor or against parties or classes of parties. See Winter v. Wolnitzek, 834 F.3d 681, 694-95 (6th Cir. 2016).
[20] A judicial candidate may make campaign 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.
[21] Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. Paragraph (A)(13) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates' responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate's independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.
Rule 4.2. Political and Campaign Activities of Judicial Candidates in Public Elections
(A) A judicial candidate* shall:
(1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary;
(2) comply with all applicable election, election campaign, and election campaign fund-raising laws and regulations;
(3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination; and
(4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1.
(B) A candidate for elective judicial office may, unless prohibited by law,*
(1) establish a campaign committee pursuant to the provisions of Rule 4.4; and
(2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature.
Comment
[1] The restrictions on political and campaign activities by judges and judicial candidates lose efficacy if their proxies engage in the prohibited conduct. Accordingly, judges and judicial candidates shall ensure that anyone speaking on behalf of or acting for the judge or judicial candidate, such as the judge or judicial candidate's Campaign Committee, campaign manager, or official proxy, not take any actions that the judge or judicial candidate is prohibited from doing. The judge or judicial candidate shall encourage members of the candidate's family* as well as friends and colleagues to adhere to the same standards of political conduct in support of the candidate as apply to the candidate. A judge or judicial candidate shall prohibit public officials or employees subject to the candidate's direction and control from doing for the candidate what the candidate is prohibited from doing under this Canon.
[2] In acting pursuant to paragraph (B)(2), judicial candidates for public election remain subject to the provisions of Rule 4.1.
Rule 4.3. Activities of Applicants for Appointive Judicial Office
An applicant for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or organization.
Comment
[1] When seeking support or endorsement, or when communicating directly with an appointing or confirming authority, a candidate for appointive judicial office must not make any pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office. See Rule 4.1(A)(13).
Rule 4.4. Campaign Committees
(A) A judicial candidate* may establish a campaign committee to manage and conduct a campaign for the candidate, subject to the provisions of this Code. The candidate is responsible for taking reasonable measures to ensure that his or her campaign committee complies with applicable provisions of this Code and other applicable law.*
(B) A judicial candidate shall direct his or her campaign committee:
(1) to solicit and accept only such campaign contributions* as are permitted by law;
(2) not to solicitor accept contributions for a candidate's current campaign more than 200 days before the applicable primary or general election;
(3) not to solicit contributions after a general election (see KRS 121.150); and
(4) to comply with all applicable statutory requirements for disclosure, reporting, and divestiture of campaign contributions.
Comment
[1] Judicial candidates are prohibited from personally soliciting* campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(8); see also Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) (upholding ban on personal solicitation of campaign contributions by judges or judicial candidates). This Rule recognizes that judicial candidates must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.
[2] Campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.
[3] At the start of a campaign, the candidate must instruct the campaign committee to solicit or accept only such contributions as are in conformity with applicable law.
[4] By limiting the period in which a candidate's committee may solicit and accept contributions to 200 days prior to a primary or general election, Canon 4.4(B)(2) “is focused exclusively on the solicitation and receipt of money--the activities most likely to harm public confidence in the judiciary. Additionally, the regulation prohibits the solicitation and receipt of funds only during the period of time that most implicates the government's stated interests, recognizing that contributions that are not proximate in time to an election can increase the appearance of impropriety and the risk of actual bias.” O'Toole v. O'Connor, 802 F.3d 783, 789, 791-92 (6th Cir. 2015) (affirming denial of motion for preliminary injunction to bar enforcement of judicial canon imposing temporal restriction on when campaign committees can solicit and accept contributions in connection with claim that the canon violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment); see also Gable v. Patton, 142 F.3d 940, 950-51 (6th Cir. 1998) (holding that provision barring contributions by persons other than the candidate to his or her campaign during a 28-day window immediately prior to a gubernatorial election did not violate the First Amendment).
[5] The intent of the Rule is to permit the candidate's committee to solicit and accept campaign contributions during an election year (including the short time period in the immediately preceding year) without regard to whether a judge or judicial candidate actually has a primary election, since that fact is unknowable until the filing deadline in January. In addition, if a vacancy occurs in an election year after the time prescribed by statute for filing with an actual primary election, i.e, the filing deadline is in August with a general election in November, the 200-day limitation does not apply, and a committee may solicit and accept campaign contributions during that year, subject to the limitation in Rule 4.4(B)(3), provided the candidate has filed for election or filed statement of intent with the Kentucky Registry of Election Finance.
Rule 4.5. 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.
(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, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together 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.

Credits

Amended by Order 2018-17, eff. 10-29-18. Prior amendments eff. 3-22-18 (Order 2018-04); 1-1-16 (Order 2015-20), 2-18-13 (Order 2013-04), 12-15-10 (Order 2010-11), 2-16-06 (Order 2006-03), 9-15-05 (Order 2005-9), 1-1-05 (Order 2004-5), 2-1-00 (Order 99-1), 1-1-99 (Order 98-2), 11-1-95 (Order 95-1), 4-4-91, 1-1-87, 10-1-82, 7-1-81, 1-1-80, 7-1-79, 1-29-79, 6-1-78, 3-1-78, 2-22-78, 1-1-78; adopted eff. 1-1-78
Note: Former Rules of Appellate Procedure (RAP) were amended and redesignated as Rules of the Supreme Court (SCR) by Order of the Supreme Court effective January 1, 1978. Prior Rules of the Court of Appeals (RCA) had been redesignated as Rules of Appellate Procedure effective March 12, 1976.
Sup. Ct. Rules, Canon 4, KY ST S CT Canon 4
Current with amendments received through December 15, 2021.
End of Document