State of Washington

Ethics Advisory Committee

STATE OF WASHINGTON

ETHICS OPINION 16-03

Question

Upon the retirement of a sitting Superior Court judge, the Governor fills the vacant seat by appointment. In the subsequent retention election for the judge appointed to fill the vacancy, may a challenging candidate for that seat state, in communications to potential voters, that he or she is running to replace the retired judge or fill the position vacated by the retired judge without indicating there is an appointed incumbent judge already in the position?

Answer

CJC 4.1(A)(10) prohibits a judicial candidate from “knowingly, or with reckless disregard for the truth, mak[ing] any false or misleading statement.” Comment [7] to CJC 4.1(A) explains: judicial candidates must be “scrupulously fair and accurate in all statements made by them and by their campaign committees.” The CJC specifically mandates that candidates and their committees refrain from making statements that are “false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.” CJC 4.1(A)(10). Comment [2] to CJC 4.1(A) states how “[w]hen a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.” 

CJC 4.2(A)(1) requires a judicial candidate to “[a]ct at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.” Integrity is defined by the Code as “probity, fairness, honesty, uprightness, and soundness of character.”

Washington law directs the Governor to appoint a judge to hold a vacant Superior Court office until the election and qualification of a judge at the next general election:

If a vacancy occurs in the office of judge of the superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term.

Wash. Const. Art. IV, § 5. Accord RCW 2.08.010. A technical reading of the above might suggest that only the election “fills the vacancy.” However, such a reading ignores the reality that the person appointed to hold the office is, in fact, serving as a judge and filling the vacancy until someone is elected and qualified. The vacancy is filled first by the appointed judge for a period of time, then by the elected and qualified judge. During those two periods, the office is “held” and cannot reasonably be deemed “vacant.”

Likewise, a candidate for election to hold the judicial office for the unexpired term cannot reasonably be said to be running to “replace” the judge who created the vacancy. The elected judge replaces the appointed judge, not the judge who created the vacancy.

Representations from a judicial candidate, or their campaign, that create an impression that a judicial seat is vacant after an appointment, or that the candidate is running to replace the judge who created the vacancy, would violate CJC 4.1(A)(10) and 4.2(A)(1). Similarly, any representations regarding the circumstances that required the appointment and election would violate these provisions if omitted facts make the communication – when considered as a whole – materially misleading as to the status of the judicial office. 

Under CJC 4.1(A)(10), such statements or omissions are false and misleading, are not scrupulously accurate, and omit facts necessary to make the communication not materially misleading. Under CJC 4.2(A)(1), such statements or omissions lack integrity in that they are not fair or honest.  

Opinion 16-03

04/29/2016