Restoring Civility to Judicial Contested Elections

In the last ten years, contested judicial elections in Maryland and across the nation have become increasingly contentious, tarnished by incivility and partisanship. Incumbent judges face heightened acrimony from challengers who, in some instances, strenuously criticize sitting judges' records. Contested elections exacerbate and undermine the public's already low confidence in our Judiciary, so a movement is underway nationally, and in Maryland, to restore civility to contested judicial elections.

On May 1, the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, created the Maryland Judicial Campaign Conduct Committee (MDJCCC) to promote civility and dignity in the conduct of contested elections for Maryland's circuit court judges and restore respect to the state's Judiciary. MDJCCC, a diverse, bi-partisan citizens' committee co-chaired by former United States Attorneys George Beall and Stephen H. Sachs, is launching an extensive public education campaign to educate voters about judicial elections. MDJCCC has developed standards for the conduct of contested judicial elections and is asking all candidates to subscribe to them and pledge to honor them in writing, in an effort to restore civility, integrity and legitimacy of the bench.

Background
Twenty years ago, contested judicial elections started appearing on the radar screen across the U.S. They grew increasingly expensive, hitting the seven-digit mark in the late '80s when a judicial candidate for the Texas Supreme Court raised and spent one million dollars, recalls University of Maryland School of Law Professor Sherrilyn A. Ifill, a judicial elections expert who serves as Vice-Chair of MDJCCC. As fewer judicial candidates ran unopposed, these contests grew more contentious.

In 2002, the escalating incivility and political contentiousness in judicial elections was compounded when the Supreme Court of the United States, in Republican Party of Minnesota v. White, 536 U.S. 765, struck down restrictions on candidate speech that prevent judicial candidates from announcing their views on legal and political issues on first amendment grounds. The canon failed the strict scrutiny test to prove that the announce clause was narrowly tailored to sufficiently serve the compelling state interest of preserving the judiciary's impartiality and the appearance of impartiality.

Traditionally, judges stayed out of the political fray. Required to be impartial, they did not want to compromise themselves with statements made in political campaigns. "Before White, announce clauses maintaining candidates running for judicial office should not announce their views on contested legal questions were still in place in a number of states," explains Ifill.

"This at least tempered some candidates' responses, as well as their willingness to engage in discussions about legal issues that might or might not come before the court," Ifill adds. "However, White removed announce clauses and self-censorship on the part of many candidates and "opened up the field for candidates to feel emboldened to challenge incumbent judges on a number of issues."

In light of this ruling, the National Center for State Courts (NCSC) implemented educational programs on state election laws, judicial canons and rules of professional conduct and sanctions for violations for all judicial candidates in 2004. It also recommended that states reexamine "their canons of judicial conduct, rules of professional conduct and state and federal laws regarding judicial campaign activity to ensure the proper balance of fair elections with the right to free speech."

"Several Maryland canons needed to be re-examined in the context of White," states Rebecca Saybolt Bainum, MJDCCC Staff Associate. In an attempt to accommodate the ruling in White, the Maryland Judicial Ethics Committee and the Rules Committee of the Court of Appeals incorporated into Canon 5 of the Maryland Code of Judicial Conduct and Rule 8.2 of the Rules of Professional Conduct changes promoting the free exercise of speech in judicial campaigns.

White lends legitimacy for more open and robust debate in contested elections between Maryland judicial candidates. "In Maryland, judges and judicial candidates can now say what their views are," notes Ifill. "White has emboldened and elevated contentious dialogues in recent state campaigns."

MDJCCC
NCSC also encouraged states to adopt new forms of judicial campaign-oversight and to date, 23 have obliged. Maryland is one of 12 states that have created Judicial Campaign Conduct Committees. MDJCCC is a volunteer, diverse, representative and bi-partisan group of Maryland citizens with no formal authority. Its mission is to preserve the Judiciary's reputation for fairness and impartiality and generate public respect for a judge's role, integrity and objectivity.

MDJCCC's credo is simple: judicial elections are different. Its thrust is to insure, through public education, that Maryland judicial elections are conducted in a civil manner. Through public education, MDJCCC hopes to convey the message that "judges represent the law. Judges have a unique role so judicial candidates must be held to a higher standard than candidates for other elective offices.

Judges must not only be unbiased and impartial but must avoid any appearance of bias or partiality. Judicial candidates should not support any political or ideological agenda. "Although Maryland incumbents are bound by judicial ethics not to be partial, they are permitted to respond to questions about their records. They are clearly within bounds to respond to questions," stresses Ifill. "They must maintain impartiality and maintain the dignity of the office."

To promote civility in judicial contested elections across the state, MDJCCC has developed Standards for the Conduct of Contested Judicial Elections to "level the playing field," explains Bainum. MDJCCC is encouraging all judicial candidates, challengers and incumbents, to honor them (see sidebar).

Civility and dignity are reflected in these standards. "We have established standards to accompany the conversation that happens in judicial campaigns that is reflective of the ways in which judicial elections are different from other elections," declares Ifill. "It's about how you speak and how you say what you say. MDJCCC is trying to hold the line in some sense. We recognize the Supreme Court's supremacy in the White case and we recognize that candidates need to talk about something in elections. MDJCCC wants to help educate the public and judicial candidates and re-emphasize the reality that judicial elections are different."

MDJCCC is asking all candidates, challengers and incumbents, to subscribe to these Standards and pledge, in writing, to abide by them in their campaigns. MDJCCC plans to publicly identify candidates who have agreed to this pledge. The Committee will review all complaints alleging violations and, where appropriate, will make further inquiry to determine whether the challenged conduct comports with the letter and the spirit of the Standards. Finally, MDJCCC will makes its findings public and refer specific allegations to the Judicial Ethics Committee of the Attorney Grievance Commission.

"We hope all candidates will agree to abide by the standards and will maintain dignity," concludes Ifill. "The reality is that the judicial system derives its legitimacy from the public's confidence. It is the public's sense of the bench's legitimacy that gives the rule of law its power. Everybody suffers if there is an erosion of public confidence in the law."

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Publications : Bar Bulletin: May 2006