Cite as PDC Interpretation No. 00-03
Under what circumstances may elected district and municipal court judges wear their robes in campaign literature, given the prohibitions in RCW 42.17A.555 on the use of public facilities in campaigns?[1]
Under what circumstances may district and municipal court judges use courtrooms in campaign literature, given the prohibitions in RCW 42.17A.555?
Robes
According to the Administrative Office of the Courts, in performing court business, district court judges may wear robes purchased at public expense, or may purchase their own robes with private funds.[1] They may wear their robes to perform duties outside the courtroom, such as officiating at weddings. The Public Disclosure Commission has been advised that there are no local policies governing the use of robes by district or municipal court judges. Copies of official photos of judges wearing their robes may be available to the media and the public in some jurisdictions; in other jurisdictions, the judges may incur the costs of producing the photographs. It has come to the Commission's attention that these district court judges may use photographs of themselves, wearing their robes, in campaign literature.
The Commission enforces the election and campaign reporting requirements in chapter 42.17A RCW. RCW 42.17A.555 forbids the use of public offices and agency facilities in campaigns, and reads in part as follows:
No elective official nor any employee of his or her office nor any person appointed to or employed by any public office or agency may use or authorize the use of any of the facilities of a public office or agency, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition.
This statute generally prohibits the use of public property for campaigns for most elected officials. The State Ethics Law at RCW 42.52.180 applies to state officers and employees and also prohibits the use of state resources for political campaigns. RCW 42.52.010(18) defines "state officer" to include judges of the superior court, judges of the court of appeals, and justices of the supreme court. The State Commission on Judicial Conduct has authority to enforce RCW 42.52 against those judges subject to that act, pursuant to RCW 42.52.370.
Therefore, with respect to judges, RCW 42.17A.555 applies only to the remaining levels of judges, and they are district court judges and municipal court judges.
Judges at all levels are subject to the Code of Judicial Conduct (CJC), including Canon 4, which limits political activities of judges, and Canon 1 at CJC 1.3, which prohibits judges from abusing their positions to advance their personal interests. Under the courts' General Rule 10, the Supreme Court Chief Justice also appoints an Ethics Advisory Committee, which is designated as the body to give advice with respect to the application of the Code of Judicial Conduct to the officials of the judicial branch. The Ethics Advisory Committee issued Opinion No. 88-3 that reads as follows.
Question:
May a district court judge, who is running for a superior court position, be pictured in campaign literature in a judicial role if the caption of the picture indicates that the judge is a district court judge?
Answer:
It is proper under CJC Canon 7(b)(1)(c) and (d) [2] for a district court judge, who is running for a superior court position, to be pictured in campaign literature in a judicial robe so long as the caption of the picture indicates that the judge is a district court judge, since this disclosure of the district court judge position would prevent the material from being misleading or misconstrued.[3]
The Commission is also aware of other authorities providing that it is common and appropriate for judges to wear their judicial robes in campaign literature, even when there are state laws limiting the use of public property for campaigns, so long as the pictures are not misleading and the picture's caption indicates the offices and dates served. See, for example, Judicial Conduct Reporter (Spring 1984).
The Commission recognizes that the intent of chapter 42.17A RCW is to maintain public confidence in government at all levels, including during election campaigns. The Commission also recognizes that certain activities of the judiciary have traditionally had oversight by that separate branch of government. Reading RCW 42.17A.555 together with the Ethics Advisory Opinion, the Commission concludes that Opinion No. 88-3 is consistent with the goal of RCW 42.17A.555, which is to provide independent oversight on the limits of the use of public facilities and property in campaigns such as for district court judge. The Ethics Advisory Committee, the Commission on Judicial Conduct, and the courts provide that oversight on the use of judicial robes in campaigns. For consistency purposes for all levels of judges, the Commission will defer to the interpretation in Opinion 88-3 for the use of robes in campaign literature for judges subject to RCW 42.17A.555, which would include district court judges.[4] The Commission will also apply this interpretation to any campaigns involving municipal court judges.
Courtrooms
The Commission's regulation at WAC 390-05-271(2) provides in pertinent part that:
RCW 42.17A.555 does not prevent a public office or agency from (a) making facilities available on a nondiscriminatory, equal access basis for political uses"
The Commission concludes that it is not a violation of RCW 42.17A.555 for judicial candidates to use the courtroom for depictions in campaign advertising literature so long as the facility is available to all persons on a non-discriminatory, equal-access basis. This includes being photographed on the bench.
See also: PDC Interpretation 04-02 Guidelines for Local Government Agencies in Election Campaigns for analysis regarding use of local government facilities generally.
[1] Information on purchase of robes for municipal court judges was not obtained, however, for the purposes of this interpretation it will be presumed that some robes are purchased with public funds and some with private funds. Staff note: In June 2012, staff obtained additional information indicating that most district and municipal court judges do not purchase their own robes.
[2] The comment to this opinion states: "The Supreme Court adopted a new Code of Judicial Conduct effective January 1, 2011. In addition to reviewing the ethics advisory opinions, the following should be noted: CJC 4.1(A)(10), CJC 4.1 Comment [7]." The opinion is available at www.courts.wa.gov/ethics.
[3] The Ethics Advisory Committee has also issued opinions regarding judicial campaigns generally and the applicability of the reporting requirements of former chapter 42.17 RCW (Opinion No. 98-10); the use of public resources with respect to endorsements and job titles (Opinion No. 93-9); the use of court personnel in campaigns (Opinion 86-9); and, activities by judges regarding local bond issues (Opinion No. 93-32). RCW 42.17 was recodified to RCW 42.17A effective January 1, 2012. In addition, Opinion No. 94-10 concerns campaigns and the use of public facilities by judicial officers subject to RCW 42.52. These opinions, and others addressing judicial election campaigns, are available at www.courts.wa.gov/ethics.
[4] Readers should also be advised of RCW 42.17A.335 regarding political advertising and electioneering communications.
[1] This interpretation does not address any of the campaign finance and reporting requirements for judicial candidates and campaigns, which are otherwise still required under chapter 42.17A RCW.