State of Washington

Ethics Advisory Committee

Question

What action can be taken by the judges of a county individually or collectively, in the course of a contested election for county clerk?

Specifically, are any of the following acts unethical under the Code of Judicial Conduct:

A) Endorsing the opponent.

B) Without endorsing the opponent, may a judge publicly comment upon the performance of an incumbent and the effect of such performance upon the administration of justice?

C) May such comment, if permissible, be initiated by the judge (e.g., letter to the editor) or may the judge only respond to unsolicited inquiries by the news media?

D) If a judge may respond to news media inquiries, solicited or unsolicited, what limitations should the judge observe?

E) May a judge privately urge people the judge knows (or does not know) either to vote for the opponent or not to vote for the incumbent, and may this be done on the judge’s own initiative?

Answer

The Committee was asked to assume in considering this request 1) that the performance of a county clerk is unsatisfactory to the extent that it affects the administration of justice to a substantial degree; 2) that no action on the part of the judges will rectify the problem short of removal of the incumbent; and 3) that the judges’ action would take place during a contested election.

Overall, a judge must refrain from engaging in any political activities which are inappropriate to the judicial office.

A judge is prohibited by CJC Canon 7(A)(1)(b) from endorsing a candidate for county clerk. A judge, however, may publicly comment upon the performance of the incumbent and the effect of such performance upon the administration of justice (CJC Canon 7(A)(4)). The judge’s comments should be confined to statements about the mandated responsibilities and functions of the clerk’s office and not be directed at the person holding that office. The comments should not be initiated by the judge and should be limited to responses to unsolicited inquiries by the news media.

Although a judge may respond to unsolicited news media inquiries, the comments should not be personalized and should focus on the responsibilities of the clerk’s office. The comments should be accurate, factual, documented, non-emotional and avoid personalities and opinions.

If asked, a judge may privately express his or her opinion to persons the judge knows but should not urge those persons to vote for a particular candidate to the extent that it becomes campaigning on behalf of a non-judicial candidate.

Opinion 86-11

08/27/1986