Toward Meaningful Judicial Elections: a Case for Reform of Canon 7

• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 1FALL 1993

COMMENTS

Toward Meaningful Judicial Elections: A Case for Reform of Canon 7

Michele Radosevich(fn*)

I. Introduction

Recent judicial elections in Washington have produced several surprises. In 1990, a then-unknown Charles Johnson upset Chief Justice Keith Callow.(fn1) In 1992, two King County Superior Court candidates who received high bar ratings lost to opponents who received poor ones.(fn2) Looking at these outcomes, some judges and attorneys have publicly questioned the ability of voters to choose good judges.(fn3)

These observers would tend to agree with the voters in some other cases, however. The same voters who elected Johnson rejected the bid of former governor John Spellman for a seat on the supreme court. They retained a recently appointed justice from Spokane, Richard Guy.(fn4) Guy's reputation within legal circles was excellent, but his name was hardly a household word.(fn5) Why did the voters choose the person with the longest list of credentials in this latter case, while they skipped over those persons in the former cases?

This Comment suggests that while voters sometime value credentials differently than the legal establishment, more often the answer lies in the quantity and quality of information available to the voters. Voters cannot make wise choices between candidates unless they know how the candidates differ from each other. Justice Guy had a simple message incorporating such a difference: elect a judge, not a politician. The voters apparently heeded the message. Most winning campaigns, whether judicial or partisan, are those that have a coherent message built on differences between the candidates. Identifying differences is easier for partisan candidates, however, than for judicial ones. Not only do judges not differentiate themselves by partisan labels, but they also impose on themselves a strict limit on discussing differences.

This self-imposed restriction is Canon 7 of the Washington Code of Judicial Conduct,(fn6) which regulates political activity by judges and judicial candidates.(fn7) To promote impartiality, Canon 7 greatly restricts what judges may discuss during campaigns. It specifically prohibits judges from talking about their views on disputed legal or political issues.(fn8) Without either partisan labels or issues to distinguish one candidate from another, voters are left with such things as gender or name familiarity.

Even sophisticated voters become confused. Former State Attorney General Ken Eikenberry, himself a candidate for governor in 1992, confessed to being "clueless when it came to some of the county judges."(fn9) To cure voter confusion, however, we do not need to change the electoral system to an appointed one. Instead, we need to change Canon 7 so voters can gain information about the qualifications and views of judicial candidates and make the electoral system work. This Comment argues that elections can give us good judges who are both accountable to the voters and able to decide cases impartially. To accomplish this, we must, in the words of one local media commentator, "take off the muzzle and allow judges to discuss issues."(fn10)

But before one can propose change, one should understand the present system and the purposes it was designed to serve. Part II of this Comment examines Canon 7 and the balance it strikes between accountability and impartiality. Part III explores how the Canon has been interpreted in Washington case law and ethics opinions and how those interpretations have kept information about judges out of the electoral process.

Part IV argues that Canon 7 should be changed because it undermines the accountability that the framers of the Washington Constitution intended to achieve through elections. Elections were so important to the framers of both the state and federal constitutions that they sought to specially protect political speech. Part V argues that the Canon contravenes the First Amendment of the U.S. Constitution and its corresponding state provision.

Part VI examines the judicial electorate, the sources of voter information, and the expectations of voters. This part concludes that Canon 7 should be changed because it is premised on faulty assumptions about voters.

Washington is not alone in trying to balance accountability and impartiality. Part VTI of this Comment demonstrates that other states have chosen canons with fewer restrictions on campaign speech and have not seen negative results. Finally, Part VIII suggests a proposal for change.

II. Canon 7

Canon 7 of the Washington Code of Judicial Conduct regulates the political activities of judges and judicial candidates.(fn11)

It is divided into two parts. The first part seeks to restrict political activity generally by (1) restricting relationships with political organizations, (2) requiring judges to resign if they run for nonjudicial office, and (3) prohibiting speeches, fundraisers, and other political activities except on behalf of measures to improve the law, the legal system, or the administration of justice.(fn12)

The second part, which is at issue here, regulates campaign speech. Judicial candidates are prohibited from publicly stating their views on legal or political issues, making pledges of conduct in office, and are required to maintain the dignity appropriate to judicial office.(fn13)

Washington's Canon 7 is almost identical to the Model Code of Judicial Conduct approved by the American Bar Association (ABA) in 1972, which has been adopted in all but three states.(fn14) The Model Code was formulated by the Special Committee on Standards of Judicial Conduct chaired by retired Justice Roger Traynor of the California Supreme Court.(fn15) The fourteen member committee, of which half were judges, worked for two and a half years and went through thirteen drafts prior to reaching a final product.(fn16)

The introduction to Canon 7 states that "[t]he fundamental need for impartiality and the appearance of impartiality of judges dictates that limits be placed on the political conduct of judges and candidates for judicial office."(fn17) However, the commentary to Canon 7A(2) admits that "the tensions between the demands of political reality and the necessity that a judge be impartial . . . became fully evident to the Committee when it began considering the standards to apply to a candidate."(fn18) The commentary speaks of compromise between the goal of impartiality and political necessity, but the tone is grudging: "As long as the system of electing judges is continued, the compromises must be made, but they should be recognized as such."(fn19) It is worth noting that the Committee's goal was singular: impartiality.(fn20) Political considerations were seen as an obstacle to achieving this goal, rather than as an independent and competing goal of accountability to the voters.(fn21) The Committee appeared to want a purer world, in which the judicial branch of government would be less subject to majoritarian influences.

The enforcement of Canon 7 in Washington is delegated to the Judicial Conduct Commission, which consists of six public members appointed by the governor, two attorney members selected by the Washington State Bar Association (WSBA), and three judges, one each selected by the district, superior, and appellate court judges.(fn22) The Commission investigates allegations of judicial misconduct, holds hearings, and imposes sanctions up to and including censure.(fn23) The Commission may also recommend to the supreme court the suspension or removal of a judge.(fn24) Judges seeking advice about Canon 7 or any other canon may request an opinion from the Ethics Advisory Committee set up by the supreme court to issue formal advisory opinions.(fn25)

Candidates for judicial office who are not judges are subject to disciplinary proceedings by the state bar association for Canon 7 violations in the same manner that any attorney may be disciplined for violations of the Washington Rules of Professional Conduct.(fn26) Attorney candidates are directed to the state bar association for advice about the canons, which is often provided informally.(fn27)

III. The Canon Interpreted

The heat of a political campaign has generated some interesting questions for the courts and other bodies charged with interpreting and enforcing Canon 7. Their interpretations have tended to narrow the scope of permissible speech.

The Canon affects candidates' speech in three ways: First, it requires that campaign speech be truthful and dignified.(fn28) Second, it prohibits pledges and promises of conduct in office.(fn29) And third, it bars candidates from discussing their views on disputed legal and political questions.(fn30)

The Washington Supreme Court has held that the dignity requirement prohibits candidates from questioning the integrity of their opponents. In In re Kaiser,(fn31) District Court Judge Kaiser attacked his opponent for receiving campaign contributions from DWI defense attorneys and suggested that his opponent would not be tough on DWIs.(fn32) The court said that Kaiser's statements called into question "the integrity and impartiality of the judiciary."(fn33) The court here seems to confuse Kaiser's criticism of one judicial candidate with criticism of the whole judicial system. One has to question whether the...