BOLGER, Justice.
Following a disciplinary sanction, a judge was not recommended for retention by the Alaska Judicial Council. Although the judge chose not to campaign, an independent group supported his retention and campaigned on his behalf. After the election the Alaska Commission on Judicial Conduct filed a disciplinary complaint against the judge and later imposed an informal private admonishment on the judge because he did not publicly address allegedly misleading statements made by the independent group. Because the statements clearly originated with the independent group rather than the judge, and the judge had no knowledge of one statement, the judge had no duty to publicly address any of the statements. Accordingly, we reverse the Commission's admonishment and dismiss the Commission's complaint against the judge.
The petitioner is a state district court judge.
A close friend of the judge's wife learned about the Council's recommendation and decided to fund an independent campaign to support the judge's retention. She was careful not to share her decision with the judge or his wife. A few weeks before the election she hired a local agent and told him "to put a face to the name and tell folks about [the judge]'s background and experience." The agent registered an independent expenditure group called "Friends of [the Judge]," and his team produced mailers, billboards, social media advertisements, and a website for the campaign. The friend was the sole financial contributor, and the agent exercised nearly complete control over the campaign's messaging.
The judge was kept ignorant of the independent campaign, and the judge had no control over the campaign's activities. The friend stated that she "did not tell [the judge or his wife] of [her] plans, did not involve them in any way in any of the campaign activities, did not solicit or seek their input, and did not request their review or approval of the plans or any materials." Likewise, the agent said the judge had "no awareness or influence.... He didn't approve anything that we put out there." The agent did arrange to meet the judge in person and "snap[ ] a couple photographs" for the campaign,
Although the judge was aware that he had supporters, he was not aware that there was a campaign. The judge avoided campaigning himself but understood from his counsel that allowing an anonymous supporter to take his photograph would not be improper. He rejected all other requests, telling supporters who wanted to help that he was not involved in any campaigns.
Shortly after the election, the Commission initiated a complaint against the judge, alleging material misrepresentations in the items circulated by the campaign. The Commission later clarified that it was investigating the judge's duty to correct the independent campaign's alleged misrepresentations. The Commission focused its attention on three specific campaign items: a mailer, the website, and a social media advertisement.
The mailer and the website prominently featured two quotes regarding the judge which arose from the judge's previous disciplinary action. Both quotes appeared in the public record and were chosen by the agent's team. The first quote was attributed to another judge: "An excellent knowledge of the law ... Real skill at legal analysis [sic]."
The social media advertisement featured an image of the judge tied to a stake and surrounded by flames with the caption: "Witch Hunts are so 18th century." The agent's team had digitally altered the judge's facial expression, added the stake and flames, and come up with the concept and text. The "witch hunt" image was used only online.
The judge did not personally receive the mailer; he first learned about it four days before the election. He learned about the website two days before the election. The judge did not learn about the social media advertisement until well after the election.
After an informal investigation the Commission found that the two quotes falsely implied endorsements from the other judge and the Commission, that the advertisement falsely implied that the recommendation of non-retention was a "witch hunt," that the judge knew or had reason to know of the campaign's existence due to the photography session, that the judge had actual knowledge of the mailer before Election Day, and that the judge took no action to correct the campaign's misrepresentations despite this knowledge. Pursuant to AS 22.30.011(b), the Commission imposed an informal private admonishment on the judge after concluding that the judge's failure to publicly address the two quotes and the social media advertisement violated the Alaska Code of Judicial Conduct.
The Commission denied the judge's motion for reconsideration. We granted the judge's original application for relief
As a preliminary matter the Commission argues that we should not exercise our power of review over its informal private admonishments. The Commission makes three arguments: (1) the statute governing the Commission's disciplinary authority does not contemplate our review of informal admonishments; (2) informal admonishments are
While it is true that AS 22.30.011 does not provide for supreme court review of the Commission's informal decisions,
We apply similar reasoning here. The Commission's admonishment is a final disposition and thus presumed reviewable, and article IV, section 10 of the Alaska Constitution vests in this court "the ultimate authority in disciplinary matters affecting the judiciary."
As with all original applications for relief, a grant of this review is "not a matter of right but of sound discretion sparingly exercised."
Review may be particularly warranted where, as here, the disciplinary decision implicates an unsettled issue of Alaska law affecting judicial conduct. The judge raises a purely legal issue; he challenges the Commission's conclusion that he had a duty to publicly
"In judicial disciplinary proceedings, we conduct a de novo review of both the alleged judicial misconduct and the recommended sanction."
The fundamental issue in this case is whether a judge has a duty to publicly correct or repudiate the statements of independent supporters during an election.
The Alaska Code of Judicial Conduct contains no such express duty. The Code provides broad guidance: A judge shall "uphold the integrity and independence of the judiciary"
Although Canon 5 of the Alaska Code of Judicial Conduct, the canon governing political activities, primarily focuses on a judge's or candidate's own behavior, several provisions address the judge's or candidate's duties with respect to agents and family members. In this context a candidate's duty is strongest when the candidate has the most control: A judicial candidate "shall not authorize or permit any person to take actions forbidden to the candidate";
Consistent with this idea, Canon 5 places no express duty on a judge or candidate to address false or misleading election statements outside of his or her control. The Code permits rather than requires a judge to correct falsehoods about a judicial candidate: "[W]hen false information concerning a judicial candidate is made public, a judge or candidate having knowledge of contrary facts may make the facts public."
Given that the Code contemplates attorney discipline for candidates who do not become judges,
The judge argues that nothing in the canons requires him to "correct or repudiate" false representations made by people not under his control. The judge refers to the Alaska Code of Judicial Conduct, noting that the Code imposes lesser duties when an actor is outside the judge's control and that the word "may" in Canon 5 is clear in permitting rather than requiring a judge to correct false information. He argues that by definition, a judicial candidate cannot have control over an independent expenditure campaign. The judge also observes that, as a practical matter, it is unclear how a judicial candidate should "publicly address" the statements and conduct of an independent campaign, especially given the media's focus on several hotly contested races during this particular election cycle.
The Commission argues that the Code implies a duty "to publicly address statements by a third party retention election campaign that the public would reasonably associate with the judge and give rise to an appearance of impropriety." This test suggests a two-step analysis: first, whether the judge would be reasonably associated with the campaign; second, whether the statements and the association would give rise to an appearance of impropriety. The Commission argues that "deliberate ignorance of campaign activities made in the judge's name should not be condoned."
We agree with the judge's argument that a judicial candidate's awareness of an independent campaign is not, by itself, enough to impose a duty to monitor and address the campaign's statements. Such a duty might force the candidate to wade into the fray, creating tension with the candidate's obligation to "maintain the dignity appropriate to judicial office."
But we do not suggest that a judicial candidate's failure to address a known third party misrepresentation would never violate a canon. There may be situations where a candidate must address an independent statement in order to uphold judicial integrity and independence, avoid impropriety, or maintain dignity.
Thus, in addition to determining whether the judicial candidate has violated another canon outright, we will refer to our objective test under Canon 2 when determining whether a judicial candidate's failure to address a false or misleading statement by an independent supporter creates an appearance of impropriety. Under this test we evaluate "whether the judge failed `to use reasonable care to prevent objectively reasonable persons from believing an impropriety was afoot.'"
The independent campaign produced a mailer and a website containing two prominent
We conclude that the judge had no duty to publicly address the quotes or these materials. We reject the Commission's conclusion that the judge knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii); the record contains no evidence suggesting that the judge had knowledge of the mailers before they were distributed, let alone involvement or control in the selection of the quotes. We see no appearance of impropriety in violation of Canon 2; because the campaign materials are clearly attributed to the "Friends of [the Judge]" group and clearly disclaim the judge's involvement, a reasonable person would not believe that the judge had produced the materials or was linked to the campaign. And because the materials were produced by an independent expenditure group, the judge would have had no ability to stop the group from publishing the materials even if he had been aware of their contents. The judge should not be disciplined for his failure to publicly address election materials that were clearly attributed to an independent group.
The independent campaign also produced a social media advertisement featuring an image of the judge tied to a stake with the caption, "Witch Hunts are so 18th century." The Commission stated that the image was "inappropriate to the dignity appropriate to judicial office." The judge agrees that the image was "clearly inappropriate" and that the independent group should not have used the image. However, the judge maintains that he did not see the image until well after the election.
We conclude that the judge had no duty to publicly address the image. There is nothing in the record to contradict his claim that he had no knowledge of the advertisement until well after the election; therefore he could not have knowingly misrepresented facts in violation of Canon 5A(3)(d)(iii). We also see no appearance of impropriety; a reasonable person viewing the ad would not believe that the judge had authorized the image or was involved in its production merely because he was the image's subject. And because the judge did not learn about the image until months after the election, he could not have taken any steps to avoid such an appearance and accordingly could not have violated Canon 2. The judge's consent to be photographed did not give rise to a duty to seek out and monitor an independent campaign he could not legally control, let alone a duty to stop any independent group from publishing any image. The judge should not be admonished for his failure to publicly address a social media image which he had no duty to address and which he did not even know about until months after the election.
For the reasons explained above, we REVERSE the Commission's informal private admonishment and DISMISS the Commission's complaint against the judge.
