National Ad Hoc Advisory Committee on …

                               National Ad Hoc Advisory Committee on
                                    Judicial Campaign Oversight
                                             300 Newport Avenue Williamsburg, VA 23185
                                                 (757) 253-2000 / FAX: (757) 220-0449

Members*
J. Mark White (Co-chair)
White Arnold & Dowd
P.C. (AL)                                         How Should Judicial Candidates Respond to Questionnaires?
William K. Weisenberg
(Co-chair)
                                                                     An Advisory Memorandum
Ohio State Bar Association                                                July 24, 2008
Belinda S. Barnes
Columbus Bar Association
                               The Current Scene:
(OH)
                                        "Questionnaires" from interest groups to candidates for election or reelection to the bench are
Bert Brandenburg
Justice at Stake Campaign      proliferating and becoming more pointed. Also more loaded, like the following paragraph, here quoting
(DC)                           from a 7/19/06 federal court decision in Kansas.
Cynthia Canary
Illinois Campaign for                  [The Questionnaire's] `Decline to Respond' option is accompanied by an asterisk, which reads:
Political Reform

Professor Anthony
                                       This response indicates that I would answer this question, but believe that I am or may be
Champagne                              prohibited from doing so by Kansas Canon of Judicial Conduct 5A(3)(I) and (ii), which forbids
University of Texas at                 judicial candidates from making "pledges or promises of conduct in office other than the faithful
Dallas
                                       and impartial performance of the duties of the office" or "statements that commit or appear to
Professor William Fortune              commit the candidate with respect to cases, controversies or issues that are likely to come before
University of Kentucky
College of Law
                                       the court." This response also indicates that I would answer this question, but believe that, if I
                                       did so, then I will or may be required to recuse myself as a judge in any proceeding concerning
Cynthia Gray                           this answer on account of Kansas Canon 3E(1), which requires a judge or judicial candidate to
American Judicature
Society (IL)
                                       recuse him or herself when "the judge's impartiality might reasonably be questioned . . . ."1

Professor Sherrilyn A. Ifill           An almost identical paragraph is used on every page of the Tennessee Family Action Council's
University of Maryland
School of Law                  June 2006 Questionnaire. A Georgia questionnaire (sent out in July) has a similar paragraph without the
                               treatment of recusal.
Craig A. Landy
Peckar & Abramson, P.C.
(NY)                                  NOTE that states in which candidates have declined to respond because of the Canons have
                               been subject to lawsuits.
William R. Quinlan
Quinlan & Carroll, Ltd.
(IL)                                   Of 64 Tennessee judges who received questionnaires, 25 sent letters declining to respond (some
                               citing Chief Justice John Roberts, and almost all giving biographic information), 35 did not respond, and
Barbara E. Reed
Ajijaak Consulting (NM)        3 gave limited responses (e.g., that Reagan and Rehnquist best represent their political or judicial
                               philosophy among the listed Presidents and Justices). The Tennesseans' letters
Professor Roy Schotland
Georgetown University
                               Declining to respond may be helpful. An Addendum provides excerpts from three of them. Tennessee,
Law Center (DC)                a few weeks later, voted on average 75 percent for retention of their 27 appellate judges.
Hon. Ben W. Studdard
State Court of Henry Co.
(GA)

Dr. Frances K. Zemans
Justice System Consultant
(IL)


*Affiliations are for
identification purposes
only
1
  From Kansas Judicial Watch v. Stout, Case 5:06-cv-04056-JAR-KGS (D.Ct. Kansas 7/19/06), at 5-6. Citations to other relevant
cases are available upon request.

Recommendations:

        There is no simple right answer on how to respond. This is true because of variations in local circumstances and
candidates' own preferences. Judicial candidates should research the law in their jurisdiction, consult with local judicial
campaign committees, and definitely confer with other candidates.

    1. Do not be rushed in deciding how to handle the questionnaire. Questionnaires often arrive only a few days before
    what the questionnaire states is the "due" date for responding. The Chief Justice of Tennessee opened his recent
    letter (declining to respond) noting that he had received the questionnaire on June 13; the due date was June 16. You
    should know that the response by all but a very few judges and candidates, has been either not responding at all or
    sending a letter like those in the Addendum. While this characterization is valid in general, we do not know or mean
    to presume about your jurisdiction. Some judges who have responded later said they were unaware that their
    responses would be made public, not merely as part of a tabulation. Generally, a judicial candidate should assume
    that any response to a questionnaire becomes part of a permanent file where statements made by the candidate can be
    used for years to come.

    2. Never use the pre-printed answers provided on the questionnaire. Candidates have greater First Amendment rights
    to discuss views post-White, but no case law, statute, rule or practice creates any obligation to discuss any issue.
    Even a well intentioned and well written response may be used in a way you do not agree with. Indeed, simplifying a
    legal or political issue to a "yes/no" answer is inconsistent with the judge's role--e.g., how the issue comes before the
    judges; what facts are proven and what law is applicable; and protecting the parties' due process rights.

    3. Consider responding with a letter. A letter is an opportunity to educate voters on the role of judges and judicial
    independence and impartiality--and about yourself! Candidates who reply with a letter are advised to request that the
    letter be distributed to members of the group sponsoring the questionnaire. You might release the letter, especially if
    the interest group attempts to portray you as non-responsive. Candidates' letters might express their concern that
    completing the questionnaire will mislead voters about the relevance of any judges' personal views and the relevance
    of the issues raised in the questionnaire to being a judge since so few cases concern such issues.

    4. Never use a judicial Canon to justify a decision not to respond. Since White, interest groups have successfully
    litigated (in four states, with two more pending) to strike down Canons that are read as prohibiting responses to their
    questionnaire, with recovery of costs and fees from the states.

    5. Distinguish general-interest, non-advocacy groups from special interest advocacy groups--and be consistent.
    There is a notable difference between, on the one hand, general-interest media and general interest non-advocacy
    groups that have a neutral claim on a response to their questionnaires. On the other hand, there are special interest
    advocacy groups that are likely to draft questionnaires so as to encourage a candidate to make a pledge, promise or
    commitment. Different general-interest, non-advocacy groups send out their own questionnaires, but in our
    experience they are as neutral and as aimed at obtaining sheer information as are the general news media
    questionnaires. Any questions from any source that encourage a candidate to make a pledge, promise or commitment
    should not be answered. Once you have decided on your general approach to questionnaires, apply it consistently so
    that you won't be accused of favoritism.
                                                  ADDENDUM

               Excerpts from 2006 Letters by Judges Declining to Answer the Questionnaire:

1. Judge John Everett Williams (Tennessee):
            . . . . I believe that Chief Justice John Roberts set the gold standard in ethical conduct during his
   confirmation hearing. As did Justice Roberts, I do not wish to hint or signal that I am predisposed to rule on any
   matter that may come before me as a judge. I have pledged to maintain the highest degree of ethical conduct.
            As a judge, my role is to interpret the law, not make it. My opinions reflect my strict adherence to the
   rule of law.
            It is my hope and desire that by maintaining the highest degree of ethical conduct, I promote public trust
   and confidence in the independence of the judiciary.

2. Judge Gary R. Wade (Tennessee):
             . . . .I am a great believer in the ethical canon of our profession which authorizes judges to engage in
   activities which promote respect for the administration of justice. On the theory that judges should make every
   effort to support worthy community causes as a part of that mission, I often lend support to a number of non-
   profit organizations with an educational, historic, or charitable purpose. For example, I am a founding member of
   the Friends of the Great Smoky Mountains National Park and have served as President of that organization since
   its inception in 1993. I am the immediate past President of both the Knoxville Zoo and the Walters State
   Community College Foundation. I support a number of other organizations, including the Sevier County Library
   Foundation, Boys and Girls Club of the Smoky Mountains, Safe Harbor Child Advocacy Center, and United Way
   of both Sevier and Knox Counties . . .

3. Judge Peter D. Webster (Florida):
            Although I am aware of the Florida Supreme Court Judicial Ethics Advisory Committee's very recent
   Opinion Number 06-18, for the reasons that follow, I respectfully decline to answer the questionnaire.
            I have been a judge for nearly 21 years, the first six on the circuit court in Jacksonville and Green Cove
   Springs and the last 15 on First District Court of Appeal in Tallahassee. In addition, I have been nominated twice
   for vacancies on the Florida Supreme Court and once for a vacancy on the United States District Court for the
   Northern District of Florida. As a result, I have spent a good portion of my life thinking about issues related to
   the judiciary. My experiences lead me to conclude without reservation that questionnaires such as that which I
   have received from your organization are ill-conceived. Over the long term, their impact cannot be anything but
   bad--bad for the judiciary as an institution; bad for the rule of law; and bad for the people of Florida.
            To the extent you desire to learn more about my personal or professional background, you may find such
   information on line at either our court's (www.IDCA.org) or The Florida Bar's (www.floridabar.org) web site, or
   in print in Who's Who in America. The best gauge of my judicial philosophy may be found in the opinions I have
   authored, which number several hundred.

4. Chief Justice Wallace B. Jefferson (Texas):
            I have completed answers to the 2006 Free Market Foundation Voters' Guide concerning judicial
   candidates. I have elected not to answer some of the questions. While I, of course, have opinions on many areas
   of substantive law, I have made it a practice to give litigants the opportunity to persuade me, based on the facts of
   their case and any developments in the law, that their position is meritorious. That "chance to persuade" is, in my
   view, a component of due process. Second, I would be subject to recusal were I to express an opinion on
   disputed legal issues before the case is actually decided by my Court. I have an obligation to minimize the areas
   in which recusal would be warranted so that I can be a participant, and not a spectator, in the administration of
   justice. With respect to particular questions, the answer to number 4 would depend on the circumstances. The
   areas about which you have inquired in questions 7, 8 and 9 (and to a degree, 5) involve decisions from the
   United States Supreme Court. It is irrelevant whether or not I believe them to have been "correctly decided."
   Under our constitutional form of government, those decisions (unless reversed or modified by the Supreme
   Court) control in both state and federal court regardless of any particular judge's view of their validity.
            Thank you for your interest in the courts. I am always encouraged when members of the public take a
   genuine interest in the judicial branch.