Indiana Law Review Judicial Campaign Conduct Committees Barbara Reed* Roy A. Schotland 4 I. Where Judicial Campaign Conduct Committees Fit in the Overall Picture When all is said and debated about First Amendment limits on what regulation, if any, can be applied to judicial campaign conduct, three lessons stand out: A. Lesson One—Florida and Ohio 's Approach The initial First Amendment decision against a canon limiting judicial campaign conduct was by a Florida federal district judge, striking a canon provision that said "a candidate . . . should not make pledges or promises of conduct in office other than the faithful and impartial performance of his duties . . .[or] announce his views on disputed legal or political issues . . . ." 1 That decision relied on the simplistic mantra that once a State decides to elect judges, judicial elections must be like other elections: "[W]hen a state decides that its trial judges are to be popularly elected ... it must recognize the candidates' right to make campaign speeches and the concomitant right of the public to be informed about thejudicial candidates." 2 Subsequently, the stricken provision was revised. The same provision had been upheld six years earlier by an Ohio federal district court judge, and subsequently affirmed by the Sixth Circuit Court of Appeals. 3 These decisions were not even cited by the Florida federal judge. But that is only the beginning—and by far the lesser part of the lesson, which is: Florida and Ohio have done the most to preempt, and if necessary take steps against, inappropriate judicial campaign conduct. Their effort is described below. Given that Florida experienced a notable decision invalidating their effort to * Counsel and Policy Director, The Constitution Project. This Paper was prepared specifically for the Symposium on Judicial Campaign Conduct and the First Amendment. The views expressed in this Paper are those of the authors and do not necessarily reflect the views or opinions of the National Center for State Courts, the Joyce Foundation, or the Open Society Institute. Supported (in part) by a grant from the Program on Law & Society ofthe Open Society Institute, as well as a grant from the Joyce Foundation. ** Professor, Georgetown University Law Center. 1 . Fla. Code of Judicial Conduct Canon 7(BX 1 )(c) ( 1 994). 2. ACLU v. Fla. Bar, 744 F. Supp. 1094, 1097 (N.D. Fla. 1990) (emphasis in original). Neither party requested oral argument in this decision for a preliminary injunction, id. at 1095, and the Bar did not appeal the court's granting of a preliminary injunction barring the enforcement of Canon 7(B)(i)(c). Id. at 1 199. (A retrospective note: counsel for the Bar was Barry Richard, lead counsel for George W. Bush in Florida during 2000 election dispute.). In 1991, a permanent injunction against the Canon was issued. 3. Berger v. Supreme Court ofOhio, 598 F. Supp. 69(S.D. Ohio 1984), ajfd, 861 F.2d 719 (6th Cir. 1988). 782 INDIANA LAW REVIEW [Vol. 35:781 limit judicial campaign conduct, and Ohio experienced a completely opposite decision, it is striking that it is those two States that are unique in having substantial, structured efforts to pre-empt and prevent misconduct in judicial campaigns. 4 These two systems, in place since the mid-1990s, are a model for action. Moreover, the Florida experience shows that, whatever one's view of how the First Amendment affects attempts to limit inappropriate judicial campaign conduct, it does not stop effective, aggressive efforts. Florida's effort, begun in 1998, is carried out by the State's Judicial Ethics Advisory Committee ("JEAC") made up of ten judges (including a rotating chairperson) and one attorney, with staff support. The JEAC renders "advisory opinions to inquiringjudges [on] the propriety ofcontemplatedjudicial and non- judicial conduct." 5 Starting with the 1998 elections, the JEAC has performed two functions. For the 1998 and 2000 elections, it conducted campaign conduct forums in every circuit with a contestedjudicial election (fifteen forums in 1998, sixteen in 2000), for candidates and campaign consultants. Every forum is attended by the chief judge of the particular circuit and a high-ranking representative ofthe bar. Their "course" material—with a cover page declaring "Play by the Rules ... or else . . . ." 6 is already serving as a model for other States. 7 The JEAC's Election Practices Subcommittee provides quick responses to campaign questions; in addition to informal responses, opinions are posted promptly on a website. Moreover, the Florida Supreme Court, newly empowered by recent constitutional revision, last year removed ajudge from office because of his misconduct in a campaign. 8 Ohio's Supreme Court revised its canon in 1995 to start a two-part effort to limit inappropriate judicial campaign conduct. First, early in each campaign year, all judicial candidates are required to complete a two-hour course on campaign conduct and finance, to which "candidates are encouraged to bring campaign committee members and other volunteers."9 Second, the court's "rules 4. Nevada will have a similar effort active for 2002. And for recent action in Louisiana, Mississippi, and New York, see infra notes 35-36 and infra text accompanying notes 32-33. 5. Pet. of the Comm. on Standards of Conduct for Judges, 327 So. 2d 5 (Fla. 1976). The committee name was changed to JEAC in 1997. Pet. of the Comm. on Standards of Judges, 698 So. 2d 834 (Fla. 1997). 6. See Appendix A, infra, for a few pages of their material. 7. For 2002, the JEAC is considering reducing the number offorums by regionalizing them. Also, it may hold the forums earlier than before. They were held in late July, immediately after the formal filing date for candidates, but that is too close to the September primary, which in fact is the final election for almost all judicial candidates, and it comes after some significant campaigning. 8. Inquiry re Matthew E. McMillan, 797 So. 2d 560 (Fla. 2001). Charges included "(1) making explicit campaign promises to favor the State and the police in court proceedings; (2) making explicit promises that he would side against the defense; (3) making unfounded attacks on an incumbent county judge; (4) making unfounded attacks on the local court system and local officials. . . ." Id. at 562. 9. Richard A. Dove, Judicial Campaign Conduct: Rules, Education, and Enforcement, 34 Loy. L.A. L. REV. 1447, 1456 (2001). Prepared for the December 2000 Chief Justices' Summit, 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 783 governing judicial discipline [include] expedited procedures for reviewing and resolvingjudicial campaign complaints." 10 Ofthe eleven actions that have gone through Ohio's process, seven resulted in either a preliminary finding or final order before the election, and the "slowest" action took five months after the misconduct occurred. 11 B. Lesson Two—Enforcement Is Rare Wholly apart from possible First Amendment hurdles that prevent or inhibit enforcement of canon provisions limiting campaign conduct, the unsavory fact is that although enforcement has been active in a handful of States (and localities), in many or most places enforcement is rare, and fear of enforcement is little or none. Moreover, much campaign conduct defies any view thatjudicial campaigns should be above the gutter, let alone different from other campaigns. Finally, what keeps mostjudicial campaigning different from other campaigning is a combination ofthe norms for such campaigns, which rest on the candidates' professionalism, respect for the bench, and concern to protect the public's respect for the bench and the fact that in so many campaigns, the norms are not tested by significant—or even any—competition. We may all point with alarm to problematic advertisements in 2000; 12 however, while earlier years were quieter, there were undeniable indications that the system was vulnerable. C. Last Lesson—Judicial Campaign Conduct Committees Bridge the Gap Campaign conduct oversight committees—some ofwhich are official, some quasi-official, and some unofficial committees of diverse community leaders—can make a major difference in curbing inappropriatejudicial campaign conduct. First, at the outset of campaigns, they can educate candidates about why judicial campaigns are different, and therefore what kinds of conduct are deemed inappropriate. Second, during campaigns, oversight committees can be available to respond to candidate requests for advice. They can receive complaints about conduct deemed inappropriate, or even take the initiative to try to discourage or stop such conduct. They can also reach out to non-candidate groups (political parties, political leaders and the variety ofcivic groups that may be active injudicial campaigns) to try to discourage advertising or other conduct that, in the view ofthe committee, is inappropriate. Finally, at any time, so long Dove's article provides all the information regarding the Ohio committees, as well as that for other States. 10. Id. at 1463. 11. Id. at 1 463-64. In addition to the expedited process, a complaint may go on the "normal track," with an investigation by the Supreme Court's disciplinary counsel. One matter was pursued by disciplinary counsel on that track after the complaint had been dismissed, post-election, by the candidates who had filed it. 12. See Anthony Champagne, Television Ads in Judicial Campaigns, 35 Ind. L. REV. 669 (2002). 784 INDIANA LAW REVIEW [Vol. 35:781 as they act only after fully fair process, they can present to the public their views of why certain conduct is inappropriate. A few such committees (for example, unofficial local ones, initiated by local bar associations) have been active for over a decade. 13 Then, starting in 1995 in Ohio, spreading in 1998, and with the trend strengthening since, official and other committees have emerged. We consider here the types of problems such committees can act upon; the three types of committees: official, quasi-official and unofficial; the strengths and weaknesses of each type, and the inherent weaknesses of all such efforts; concluding with recommendations for future action. II. The Problems on Which Such Committees Can Act So far, campaign conduct committees have dealt only with problematic advertisements, and that is bound to remain their main or sole focus. But as we note briefly below, committees should seriously consider the possibility of not ignoring problematic campaign finance conduct. Problematic ads fall into three main categories: factual misstatements; "signaling" and near-promises; and attack ads. At their most innocent, attack ads state accurate, but negative, facts about the opponent; at their most damaging, they assail judges for specific decisions in which they participated, or attack lawyers for specific clients they represented, and/or engage in misrepresentation or falsehood. Professor Champagne provides an unprecedented picture of judicial campaign ads, 14 and there seems little or no need for more examples ofcampaign conduct that almost all ofus would call undesirable, and many ofus seek to stop. However, while unquestionably 2000's judicial campaigns were dimensionally different from previous years, no one should think such conduct is new. 15 Judicial campaign conduct committees could also help preempt or discourage campaign finance practices that, though legal, are damaging deviations from the community's norms. Examples of the practices include: An incumbent is believed to be engaging in raising campaign funds in ways that may not be a provable violation of the ban on personal solicitation; a challenger, acting as if she will run for a nonjudicial office, begins fundraising before the period allowed for judicial campaign fundraising—and then announces her candidacy for a judicial race, offering to return funds to any contributor who wishes; and an incumbentjustice, in ajurisdiction which limits individual contributions but does 1 3 . See Roy A. Schotland, Elective Judges ' Campaign Financing: Are State Judges ' Robes the Emperor's Clothes ofAmerican Democracy?, 2 L.J. & POL. 57, 91-93 n.92, 128-29 (1985). 1 4. Champagne, supra note 1 2. 15. In addition to the 2000 elections' ads examined in Professor Champagne's paper, earlier horrors are noted in Schotland, supra note 13, at 66, 79-80, and in Choosing Justices: Reforming the Selection ofState Judges, in UNCERTAIN JUSTICE: POLITICS IN AMERICA'S COURTS 77, 1 1 -02 (2000). The 2000 campaigns are examined (mainly as to campaign finance) in Roy A. Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. REV. MICH. ST. U. DET. C.L. 849. 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 785 not impose any aggregate limit on law firms, raises an unprecedented proportion of his funds from a single firm, its members, employees and their spouses, and the firm's PAC. Moreover, the contributions are received just before the justice votes to review a verdict which awarded record damages, and the contributing firm had a one-third contingency interest in the matter. 16 No existing campaign conduct committee has taken on campaign finance problems. However, campaign contribution and spending patterns in judicial races should do more than merely abide by legal limits: candidates should adhere to the jurisdiction's norms or else be ready to account to the public for deviating from the norms. III. The Three Types of Committees; Their Powers, Procedures, and Members A. Official Committees Along with the official committees established in Florida and Ohio, 17 at least two other states have also adopted an official committee model. 7. Georgia's Approach.—In late 1997, Georgia's Judicial Qualifications Commission ("JQC"), the official body responsible for judicial discipline, adopted a rule establishing a three-person special committee to oversee campaign conduct (in Georgia, judges run in nonpartisan, contestable elections). This step reflected concern about a troublesome 1996 campaign for an intermediate appellate seat. The committee's members are, by rule, the senior member ofeach ofthe three categories ofJQC members: one private attorney, onejudge and one "lay person," plus the JQC's full-time director as an ex officio member. The initial members were the JQC's chairman, a lawyer, an intermediate appellate judge, and a prominent businessman. The committee's sole power is to issue statements. It may do so after an expedited but thorough process (ofcourse, affording to the candidate complained against an opportunity to respond), either upon complaint or on its own initiative. This procedure was upheld as constitutional by a federal district court in 2000, although the court also upheld a facial challenge to the particular provision in Georgia's canon. 18 16. This is a ninety-percent-literal statement of the conduct of two Ohio Supreme Court justices in 1998. They voted as the firm had hoped. The defendant's motion for recusal was never ruled upon. Wightman v. Consol. Rail Corp., 715 N.E.2d 546 (Ohio 1999), cert, denied, 529 U.S. 1012 (2000). The facts are set forth in Roy A. Schotland, Campaign Finance in Judicial Elections, 34 LOY. L.A. L. REV. 1489, 1503-04 (2001). 1 7. The Florida committee was established in 1998 and the Ohio committee in 1995. See supra Part LA. 1 8. The court upheld the system as one that "offers the constitutionally preferred cure ofmore speech. The Rule does not give the Special Committee the power to censor or prohibit speech, to impose fines or other criminal sanctions, or to institute or prosecute disciplinary actions. It only allows the Special Committee to make a public statement." Weaver v. Bonner, 1 14 F. Supp. 2d 786 INDIANA LAW REVIEW [Vol. 35:781 2. Nevada's Approach.—In 1997, Nevada's Supreme Court established a Standing Committee on Judicial Ethics and Election Practices, which serves as the appellate body for judicial discipline cases, renders advisory opinions to j udges throughout the year, and adjudicates disputes between candidates, whether they are already judges or not. The Standing Committee has twenty-eight members, with fourjudges appointed by the court, twelve lawyers appointed by the state bar, and twelve "public members" appointed by the governor (but these twelve do not participate in the non-election advisory opinion process). They have strong staff support through the state bar's general counsel/executive director. The Committee divides into five-person panels to handle complaints. Initiated for the first time in 2002, and before candidates formally file for election, the Committee will provide "proactive and advance education ... to hold down complaints and avoid violations." B. Quasi-official Committees: Alabama, Michigan and South Dakota™ In February 1998, the Alabama Supreme Court appointed a twelve-person "Judicial Campaign Oversight Committee," all private citizens, including nonlawyers with reputations for the "utmost integrity." The twelve members were appointed by the Alabama Supreme Court, two other courts and the Circuit Judges' Association. The 1998 members included a homemaker, a businessman, two retired judges, an active judge, a member of the clergy, a mayor, a lawyer and former congressman, a farmer, a prosecutor, a public service leader, a campaign manager, and another lawyer (who was the chair of the court's Standing Committee on Rules of Conduct and Canons of Judicial Ethics). In 2000, the Committee was expanded to twenty-six members, all lawyers and judges appointed by the supreme court. In 1998, as a result of increased complaints throughout the 1996 campaign cycle, the Michigan bar 20 created five five-person regional panels, made up of lawyers and nonlawyers, to oversee campaign conduct issues; they offered all 1 337, 1 345-46 (N.D. Ga. 2000) (citations omitted). See also Robert M. O'Neil, The Canons in the Courts: Recent First Amendment Rulings, 35 IND. L. REV. 701, 705-07 (2002). 1 9. In February 1 998, the South Dakota Supreme Court ordered that candidates must complete a two-hour course on campaign practices, finance, and ethics sponsored and approved by the Judicial Qualifications Commission; (2) in every year with a circuit court election, a Special Committee on Judicial Election Campaign Intervention shall be created ... to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The committee consists of five persons: two former members of the JQC appointed by the JQC chair; two former members ofthe state bar's disciplinary board, appointed by its chair; and a retired judge or justice appointed by the chiefjustice. The members of the JQC and Special Committee, and their counsel and staff, have absolute immunity for acts in the course of duty. See Appendices toSDCL 12-9 and 16-1 A. 20. Michigan is a mandatory bar State. 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 787 candidates in contested judicial elections the opportunity to participate in the oversight program. 21 If a candidate did not participate, a panel could still investigate allegations of "false, misleading, unfair, unethical or illegal statements" and make public comment and/or refer the matter to the Attorney Grievance Commission or the Judicial Tenure Commission. In the 1998 primary elections for Michigan trial judges, there were 101 uncontested races and sixty-one contested races with 1 2 1 candidates, eighty-four ofwhom participated in the oversight program. Ofthe general election's ninety- four candidates, sixty-nine participated. During the primary, the panels reviewed only one inquiry, which resulted in the candidate's agreement to alter conduct. The general election produced six requests for action, four of which were dismissed and two that resulted in immediate agreements to alter conduct. Although the bar endorsed continuation of the panels for 2000, they were not continued. C. Unofficial Committees Unofficial committees have existed for more than a decade in some local ities and are currently employed in eighteen localities over five states. Moreover, North Carolina and Ohio have each, on single occasions, employed the unofficial committee model. In 1990 in North Carolina, a state bar association committee chairman formed a committee that sponsored debates on public television between statewide candidates, and also published 550,000 copies of a voters' pamphlet on judicial candidates (after raising nearly $50,000 to subsidize the pamphlet's creation) distributed shortly before the election in the main Sunday newspapers. The committee included former Chief Justice Rhoda Billings and a former justice, plus some twelve citizens who were diverse in gender, geography, ethnicity, and professions, but all of whom were leaders or representatives of notable community groups. The committee began its efforts at the end ofAugust and was ready to receive and respond to campaign complaints, but none were submitted (in fact, the only problematic conduct was by one of the state party chairmen). During 1992, a similar effort was initiated in Ohio by members of a Columbus campaign oversight group that had been functioning in Franklin County for several election cycles. The State Committee ofCitizens, chaired by 2 1 . For a valuable report, see Thomas K. Byerley, Judicial Campaign Ethics Experiment, Mich. B. J. 318 (March 1999). Byerley serves as regulation counsel for the Michigan State Bar, and notes that one major concern [leading to the effort] was that there was no prompt way to address allegedly improper campaign tactics. . . .[A]n "aggrieved" candidate could only file a complaint [and] the investigations . . . took considerable time Even if a candidate violated ethics rules during the campaign, many times no discipline was ultimately imposed .... As with any experimental program, lessons were learned .... Id. at 318, 319. 788 INDIANA LAW REVIEW [Vol. 35:781 a former federal district judge, had the same goals as the North Carolina effort noted above. However, the State Committee ofCitizens collapsed after it failed to secure agreement from supreme court candidates on limiting campaign contributions and spending—each candidate was willing to limit one but not the other. In 1985 in Columbus, Ohio, the county bar president initiated an oversight committee oflawyers and nonlawyers. The committee succeeded in stopping one advertisement that stated, "Elect Judge X" although X had never been a judge, and another ad that attacked a candidate for having represented a particular criminal defendant. The committee chairman was the local Catholic bishop, who had been a lawyer earlier in his career. The committee, now known locally as the "Bishop's Committee," still exists, with eleven members appointed by the county bar president (with the consent ofthe bar's board of governors). Of the eleven members, three must be nonlawyers, and not more than five may be from one political party. Before taking any action or releasing any statement, the committee must have seven votes in favor of such a course. Cleveland and Youngstown have recently begun similar efforts. In addition, San Mateo County, California, has had such a committee since approximately 1980; 22 similar committees can be found in Santa Clara County, California, and King County (Seattle), Washington. In Florida, the Miami-Dade bar association has an active committee. Five other Florida counties have committees ofwhich we learned only at the completion ofthis Paper: Broward, Escambia-Santa Rosa, Orange, Palm Beach, and Volusia. 23 New York moved dramatically on this matter in 2001 . New York's pioneer is the Erie County (Buffalo) bar, which around 1985 started a committee ofthree board members plus the board's chairman. Each member serves for three years. An effort is made to appoint lawyers with a background in professional ethics or judicial campaigns. And in 2000, the Monroe County (Rochester) bar resumed an effort it had made in the mid-1980s; the committee consists of several bar officers. 24 D. Two Additional Factors L WhatSome Committees Have Done.—After Alabama's 1 998 election, the Judicial Campaign Oversight Committee submitted a full report to the court, noting its outreach efforts which brought candidates together (many opponents had not met before); that most candidates signed pledges; 25 and that it responded to 350 inquiries and referred about ten complaints to the state bar or judicial inquiry commission. "A nicer election," the Birmingham News editorialized on November 9, 1998. "Overall ... it was a much cleaner campaign than in 22. For the entire San Mateo plan, see Schotland, supra note 13, at 91-93. 23 . Information on whom to contact in all six counties can be provided by the authors ofthis Article. 24. See infra text accompanying notes 32-33. 25. See infra Part II.D.2. 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 789 previous years."' In 2000, an enlarged committee received about thirty complaints or inquiries; however, they did not submit a report. Strikingly, although five supreme court seats were contested with such intensity that over $13 million was spent, and a major litigation arose over one campaign ad, Alabama was dramatically more decorous than Illinois, Michigan, and Ohio, which had similar hotly-contested races. 27 2. Candidate Pledges.-—Many committees of all three types ask candidates to sign pledges. Michigan's 1998 state bar effort secured pledges from nearly seventy percent of the primary election candidates and seventy-three percent in the general election. 28 The Alabama and the Columbus citizens' committees have very detailed pledges; the latter even defines how the phrases "jury trial experience," "trial experience," "litigation experience," "appellate experience," and "administrative hearing experience" may be used in campaign literature. The Santa Clara bar committee's pledge simply asks candidates to agree to abide by the bar's Judicial Election Campaign Code of Ethics, which contains specific guidelines. The New York bar committees all use pledges; Seattle's pledge is a perfunctory paragraph. Nevada does not use a pledge. Obviously, committees using pledges believe them to be helpful. One ofthe authors recommends the use of pledges, the other feels the need for more information on how they are used. One major benefit ofusing pledges is that it presents a benchmark against which the voting public may measure candidate conduct as the campaign progresses; it provides an opportunity to hold candidates' feet to the fire ifthey fail to comply. A major criticism cited by opponents of pledges is that they may be perceived as coercive, preventing candidates from campaigning according to their own preferences. IV. Strengths and Weaknesses of Each Committee Type An inherent strength ofany type ofcampaign oversight committee described here is that if inappropriate judicial campaign conduct occurs, the voters will hear from diverse, respected, knowledgeable, and neutral people. Indeed, the committee's mere existence is likely to help inhibit improper conduct; and ifany does occur, committee members can give the public an informed, detached analysis. An inherent weakness in these committees is the tendency that people willing to undertake responsibility for such an effort, may tend to have unrealistically high aspirations for what constitutes proper conduct. This weakness can be met 26. Editorial, A Nicer Election in Judicial Races, No Repeat of J 996 's Tacky Campaign, Birmingham News, Nov. 9, 1998, at 6A. 27. However, one supreme court candidate in 2000, Lyn Stuart, let voters know that she had sentenced two convicted murderers to death, that she had a ninety-one percent conviction rate in DUI cases, that she had a twenty year record in fighting crime as both a prosecutor and judge and that "she respects law enforcement." 28. See Byerley, supra note 2 1 , at 3 1 9. 790 INDIANA LAW REVIEW [Vol. 35:781 by a well-structured appointment process. We recognize that the inherent strength of these committees will, for some people, seem insufficient unless it includes the power to stop improper conduct. However, the existence of such committees is an essential step toward protecting long-standing values that are not merely fundamental but are also crucial to allowing our state courts to continue to render justice—specifically, judicial independence and accountability. Official committees have the advantage of durability, resources, and the potency that comes with the potential for official sanctions for misconduct. However, those undeniable advantages are outweighed by two factors that are inseparable from the advantages. One is the certainty that official action is limited by requirements of the First Amendment and due process. Unofficial action, of course, also must be procedurally fair, but unofficial action is free of constitutional limits. 29 The second advantage of unofficial committees is the greater credibility that comes with a diverse membership in a voluntary body—members who are selected precisely because they are respected and neutral voices. 30 In the unofficial context, such members are more likely to be regarded as respected and neutral, rather than as purely political appointees charged with protecting favorites. On balance, we favor unofficial committees for this role. Conclusion Three recent events, taken together, constitute the strongest possible recommendation for bar associations to initiate campaign conduct committees. The December 2000 Summit of State Chief Justices recommended that: "Non-governmental monitoring groups should be established to encourage fair and ethical judicial campaigns." 31 As a direct result, in March 2001, New York's Administrative Board of the Courts adopted a new rule that all judicial candidates (lawyers and judges) have the same campaign conduct 29. Even official action is reviewed more favorably if it chooses "the constitutionally preferred cure of more speech." See Weaver v. Bonner, 1 14 F. Supp. 2d 1337, 1345 (N.D. Ga. 2000). 30. In an Ohio Supreme Court election in 2000, the U.S. and Ohio Chambers ofCommerce ran what became the most controversial television ads of2000's unprecedentedly heated campaigns. A press conference to attack the attack ads was held by the state bar's president. There is no reason to question that individual's reputation for integrity, but we note that as a member of a large law firm, he happened to have as partners the then-president of the Trial Lawyers' Association and a partner who was then a member of the official state election commission, where he was active in trying to have the commission act against those same ads. We believe that media efforts, and discussions aimed at making it unnecessary to "go public," are likely to be more effective if conducted by a panel of diverse community leaders whose efforts cannot easily be dismissed as those of insiders whose agenda is to protect themselves and their colleagues. 3 1 . Summit on Improving Judicial Selection, Call To Action, 34 LOY. L.A. L. REV. 1352, 1356 (2001) [hereinafter Call To Action]. 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 79 responsibilities. 32 The Board also formally endorsed the establishment and maintenance by statewide and local bar associations ofjudicial election campaign practices committees that, as part ofthe bar associations' process ofevaluating candidates forjudicial office, request candidates to provide written commitments that they will campaign in accordance with the requirements of the Code . . . applicable case law and ethics opinions. . . . Further, the Board urged the chiefjudge and chief administrative judge to meet with bar representatives. In June 2001, Chief Administrative Judge Jonathan Lippman announced this effort, and by October, when the New YorkLawJournal placed on its front page an article about a meeting ofjudges and bar officials, several counties had started new committees, joining the existing committees in Erie and Monroe Counties.33 In one judicial district, each county has a local committee (most were founded recently), and also has a delegate on a district- wide "super-committee" to address problems in district-wide races that cross county lines. Similarly, in April 2000, Louisiana's Supreme Court named an Ad Hoc Committee to Study the Creation of a Judicial Campaign Oversight Committee. Co-chaired by Chief Justice Pascal Calogero and retired Judge Graydon Kitchens, the Committee met with Alabama lawyer Mark White, who had spearheaded the Alabama effort, and held a public hearing. In 2001, the Committee recommended creation of a permanent oversight committee, to "benefit the citizens of Louisiana by: (1) Serving as a resource forjudges and judicial candidates; (2) Educating judges and judicial candidates about ethical campaign conduct; and (3) Helping deter unethical judicial campaign conduct." 34 In March 2002, the Louisiana Supreme Court established such a committee on the Alabama model. 35 And in April 2002, the Mississippi Supreme Court also acted, establishing a committee on the Georgia model. 36 Fully recognizing that of course the right course of action varies to fit each jurisdiction, and particularly, that special steps may be needed for statewide elections, we urge the following action regarding the creation and work of 32. See Appendix B, infra. 33. John Caher, Judicial Election Reform Sought in Campaign for Bench: State Joins National Pushfor Greater Civility, 226 N.Y. L.J. 1 (2001). The other two counties that already had committees are Monroe (Rochester) and Onondaga. One of the leaders of these new movements is Craig Landy, head of the New York County Lawyers' Association and an active participant at the Summit. The New York State Bar Association, headed by Steven Krane, is spearheading efforts at the county level to establish oversight committees, and will act as a clearinghouse for these efforts. Copies ofeach bar's basic materials are available from the authors. 34. Ad Hoc Comm. to Study the Creation of a Judicial Campaign Oversight Comm., Report to the Supreme Court of Louisiana 3 (2000). Copies of that report can be obtained from the authors. 35. La. Sup. Ct. R. 35. 36. In re Miss. Code ofJudicial Conduct, 2002 Miss. LEXIS 1 24, Canon 5(E), 5(F) and cmt. 792 INDIANA LAW REVIEW [Vol .35:781 judicial campaign oversight committees. First, while we believe the need for such committees is acute and the contribution that these committees can bring is large, we also believe that, on balance, such committees will be more effective ifthey are unofficial rather than official. Any committee must be fair and deliberate, but unofficial committees cannot be sued (which sometimes is done for publicity) on constitutional grounds. 37 Second, bar associations, as the most naturally interested bodies, should take steps to establish campaign conduct committees. Such steps should be taken as early as possible prior to the commencement of an election year so that the committee will be in place, and able to begin its work, before campaigns (including primaries) begin. Whether or not a committee is established for statewide elections, state bar associations should, as in New York, serve as central sources for information on the applicable rules of conduct. Similarly, the National Center for State Courts should serve as a central source of information. By compiling and sharing their different experiences in creating judicial campaign oversight committees, bar associations can only be better served in their efforts to further the work of such committees. Third, such committees must have by-laws describing their functions and membership, and prescribing procedures (including their approach to confidentiality). The National Center for State Courts should serve as a clearinghouse for "best-practice" examples. Finally, a number offactors should be considered when creating committees. As an initial matter, while the initiative to create such committees comes naturally from bar associations, the committee's balance and credibility will be far greater ifthe committee includes non-lawyers. In the words of the Alabama Supreme Court's order creating such a body, committees should comprise ofpersons who have reputations in the community for the "utmost integrity," and who are diverse community organization leaders or representatives. There should be at least as many non-lawyer committee members as lawyers, with co-chairs or the members choosing a chair.38 Additionally, given that the purpose of the committee is to encourage 37. Such committees should distinguish themselves from any other unofficial groups that may hold themselves out as "campaign ethics committees," but are parts ofgroups pursuing substantive agendas, e.g., special interest groups, including the business lobby, organized labor, religious and social policy groups, etc. 38. New Jersey has no judicial elections, but to meet widespread concerns about its judicial selection process—in which, in operation, senators have a veto over nominations from their own district—one senator has established the Morris County Selection Committee to identify and screen candidates for the bench. That committee has five non-lawyers chosen by the county's two senators, five attorneys chosen by the county bar, and a chair chosen by the committee members. This process has worked very well. See Robert J. Martin, Reinforcing New Jersey *s Bench: Power Toolsfor Remodeling Senatorial Courtesy and Refinishing Judicial Selection and Retention, 53 RUTGERS L. REV. 1, 63- 69 (2000). In May 2001 , the state bar recommended such committees for all counties. New Jersey State Bar Assoc., Improving the Judicial Selection Process 10 (2000). 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 793 appropriate conduct injudicial campaigns, the committee should decide whether its mission is limited to advertisements, statements and similar matters, or includes campaign finance practices; and what forms of action it may take. Likewise, the committee or its creators should determine whether it possesses the power to initiate a discussion about what it deems inappropriate action, or only to act upon an external complaint. Educating candidates and campaign staff would also be beneficial; the National Center for State Courts could serve as a clearinghouse for curricula. In addition to education for candidates and campaign staff, it would be valuable for members to maintain contact with leaders of civic organizations (and in some States, political parties) that may participate injudicial campaigns. Similarly, asking candidates to sign pledges, as many committees do, is recommended by one of the authors, while the other feels the need for more information on how they are used. "Hotlines" to provide campaign advice exist in several jurisdictions, and were recommended by the 2000 Summit. 39 Finally, experience makes clear that during the weeks immediately before an election, it may be necessary to have a "rapid response" panel or executive committee on call to respond to immediate campaign concerns. In sum, as the other papers presented at this Symposium make abundantly clear, the problems associated with inappropriate statements and conduct during judicial elections are unlikely to abate anytime soon. Bench and bar leaders across the country are beingjoined by a growing chorus ofmembers ofthe media and the public in demands that something be done. As an initial step that requires relatively little yet holds great promise, the authors endorse the use of judicial campaign conduct committees as a means of long-term improvement. 39. Call To Action, supra note 3 1 , at 1 355-56. 794 INDIANA LAW REVIEW [Vol. 35:781 V w I/> 3 d T3 c e o e U Eo c o CuO s ee o Q. E c o U « IS <2 c V T3 g 3 !-9 o S o O t/1 u E es 09 g H o 3 io •a V) 60 S V 3 *"» 3 =3 S 5 S °us » 55 8 HI s «ouw O i 2 o s o I Q. ft 1 If C/i .2, £3 .S o. — o (5 u c £ o i c ft) <*-. > o M •G ft) o c •a E ft) i> E E £o o > U — > e exe< ouns« ional (for pline •a 3 o V rector is th r./general c e Constitut ommission dicial disci "5 *g § E % ft) H E c/5 -3 '-5 & U .2, > IE J5 O ta S <•> *™ — 5. » 2 c sis «J U II 2 2 O \3 £ 8 11 E H 6S1.2 u z % 3 1 § <> .2 S Q. «n O ,S? .3 r > < 5 1) 11 "2 5 O Is B >> s ft>ft>^S8EeSe">"oE'3«9-« 00 c .. O v> > J- 3 •fi 8 s 8 S -S > E 6 SOT3 J) B C S & E '5b „. 2 o o « 00 U) 03 8 o s •o * 2 £ b- s "I J5 1 1 M I '2 S •- "a— ft) C o 8 § X a: o CJ "O •a I. Si & .t: .2 S w 'c «> ra C*5 U u s & «r 2 b-c « 2 I ij U M (9 § Ih .E *g S c E u a ft. 5> "3 s S s 5 a> « 3 cj S w> o i/T .S ° s ** S .1 8.§ 3 "= 3 "O T3 o a O I & T3 i3 -3 8 3 .2? o. 2 "En 5 « G t) E c •3 IB 3 o o Tl Q, en ft) .2 1 ft) a 3 3 O ft) ft) E (J ft) i t) i 9 §o _s a: o « QJ £^ .S ^5 -S 1 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 795 2 o o 5 23 < A 2 o Ex. 1/3 o .2 3 o S cd U I CD a a, 796 INDIANA LAW REVIEW [Vol. 35:781 O o s o d o o s o 13 •*— > u J2 2 4> u o > O o u o x> • l-H 1-4 o s o &0 ctf (/> S 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 797 O 3 T> A O U «^H 0* • »-* Q • »-* • T3 CO 3 >-> <4H 0> 1o CD CO • JBMf T> ctf Jo OU i w CO (U o g 6 Eo js x Mh +3• *** +3W £ £ ctf O 3 fa »N 2 *§* & o a a >*;: o o •43 o o Q. P O H 798 INDIANA LAW REVIEW [Vol. 35:781 cd o•H m 43 o a o Ph < "5 c a o S o U en O en s § en G O eft & O CZ) Vh SL-8^ ex o o s .1 •s § C.S o g .a o> Q ^3 cd a &> +-> 3 ? O 0) k^ D 3 *3 a en *0 O O J* H o en o o •S fe ° I I I > o o O H CO o f ™ e o CO a S-4 X3 o 3 O CO 800 INDIANA LAW REVIEW [Vol. 35:781 > (A O C © Q H 43 8 fli 1/3 4^ O CZ3 O o o Oh M O o a o £ O 3 Q 2002] JUDICIAL CAMPAIGN CONDUCT COMMITTEES 801 a o U 13 o w o U H "S £ 3 .© • * «*H ^ p—I -d Pi •pN C — DA o> <*! O o Ph *C On © S3 o en a> >* 5p 4D fd * ? +3 CD • cd en cd cu .2 ^ 3 =. O <=* cd M *>*» *rt Cd CD u £ « £ ^ # o o 'o *3 ^5 CO '^> cd ^ w .2 -1—1 1> § .2 £ .3 = .9 > ^ ^ 43 c3 8 o T3 8 a ^ O 4h *& .3 ^ 1CO P s>-^ On CM in r\ C/3 « C5 >*> ^ 3 1 3 • ^) J k. cd St •^ fa S