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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re District Court Judge (3/10/2017) sp-7156

In Re District Court Judge (3/10/2017) sp-7156

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                           

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                             

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



In  the  Disciplinary  Matter  Involving  a                            )  

                                                                       )     Supreme  Court  No.  S-16032  

                                                                       )  

                                                                                                        

DISTRICT COURT JUDGE.                                                  )     ACJC File No. 2014-007  

                                                                       )  

                                                                                                  

                                                                       )     O P I N I O N  

                                                                       )  

                                                                                                                    

                                                                       )     No. 7156 - March 10, 2017  

                                                                       )  



                      O                                                                                             

                         riginal  Application  from  the  Alaska  Commission  on  

                                     

                      Judicial Conduct.  



                                                                                                               

                      Appearances:  Timothy A. McKeever and Stacey C. Stone,  

                                                                                                                           

                      Holmes Weddle & Barcott, P.C., Anchorage, for Petitioner.  

                                                                                                           

                      Marla  N.   Greenstein,   Alaska   Commission   on   Judicial  

                                                                                                                  

                      Conduct, Anchorage, and Jeffrey M. Feldman, Summit Law  

                                                                                        

                      Group PLLC, Seattle, Washington, for Respondent.  



                                                                                                             

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                            

                      and Carney, Justices.  



                                          

                      BOLGER, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      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  


----------------------- Page 2-----------------------

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'sadmonishment and dismisstheCommission'scomplaintagainstthejudge.                                                                                  



II.          FACTS AND PROCEEDINGS         



                                                                                                                 1  

                          The petitioner is a state district court judge.                                                                        

                                                                                                                     In a previous disciplinary  



                                                                                                                                                                  

matter,  the  Alaska  Commission  on  Judicial  Conduct  filed  a  recommendation  for  



                                                                                                                                               

discipline             against           the        judge.              We         adopted             the       Commission's                    disciplinary  



                                                                                                                                                        

recommendation.                         Based  on  the  same  misconduct,  the  Alaska  Judicial  Council  



                                                                                                                                                            

recommended that the judge not be retained in a subsequent election.  The judge sought  



                                                                                                                                                 

advice from counsel and chose not to mount his own retention campaign.  



                                                                                                                                                    

                          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 completecontrol  



                                          

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  



             1  

                                                                                                                                                     

                          This court has ordered thatthis matter be treated as confidential. Therefore,  

                                                                                                            

the judge is referred to throughout this opinion as "the judge."  



                                                                                  -2-                                                                                7156  


----------------------- Page 3-----------------------

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, but the                                                                                                                                                                                                                                                                                                                                                                                                       



judge "seemed a little confused as to who [he] was."                                                                                                                                                                                                                                                         The agent told the judge only that                                                                                                                                           



 he was "a fan of [the judge] and [they had] mutual friends."                                                                                                                                                                                                                                                                                             



                                                                              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                                                                                       

                                     2               The second  quote was attributed  to  the Commission  itself:                                                                                                                                                                                                                                                                                                              "An excellent  

  [sic]."                                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                        2                                     Judges cannot publicly endorse candidates for public office.                                                                                                                                                                                                                                                                                          Alaska Code
   



 Jud. Conduct Canon 5A(1)(b). The agent's team did not contact the other judge directly;
                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                                                                                                     (continued...)
  



                                                                                                                                                                                                                                                  -3-                                                                                                                                                                                                                                7156
  


----------------------- Page 4-----------------------

character and reputation."                         Both the mailer and the website stated that they were "Paid                                           



for by Friends of [the Judge]" and that the communications were "not authorized, paid                                                                       



                                                                 3  

for or approved by the candidate."                                  



                                                                                                                                                                  

                         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  



             2           (...continued)  



                                                                                        

they found the quote in an online publication.  



             3  

                                                                                                                                  

                         Under AS 15.13.135 an independent group must place this disclaimer on  

                                                                                                                     

published campaign materials "so that it is readily and easily discernible."  



                                                                               -4-                                                                        7156
  


----------------------- Page 5-----------------------

                                                    4  

 Code of Judicial Conduct.                             The Commission also asked the judge to "correct the public                                               



record in some manner to address the concerns raised."                                                          



                           The   Commission   denied   the   judge's   motion   for   reconsideration.     We  

                                                                                                  5  and now reverse the Commission's  

 granted the judge's original application for relief                                                                                            



 admonishment.  



III.          PRELIMINARY DISCUSSION  

                                                    



              A.           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  

                                                                                                                                                                    



notcontemplateour reviewofinformaladmonishments; (2)informal admonishments are  

                                                                                                                                                                       



 an important tool that will be compromised if they are subject to our review; and (3) an  

                                                                                                                                                                        



 informal  admonishment  is  not  a  sanction  and  therefore  not  a  formal  action  to  be  

                                                                                                                                                                       



reviewed.  We are not persuaded.  

                                              



                           While it is true that AS 22.30.011 does not provide for supreme court  

                                                                                                                                                                  



                                                                                                      

review of the Commission's informal decisions,6  this is not the first time that a pre-                                                                             

                                                                               



              4            Specifically, the Commission found that the judge had violated Canons 1,                                                                      



 2A, 5A(3)(a), and 5A(3)(d)(iii).       



              5            See Alaska R. App. P. 404(a)(1).  

                                                                         



              6            The  Commission  addresses  judicial  complaints  through  an  informal  

                                                                                                                                                          

 investigation followed by an optional formal hearing. AS 22.30.011. If the Commission  

                                                                                                                                                    

 does  not  proceed  to  a  formal  hearing,  it  can  "exonerate  the  judge,  informally  and  

                                                                                                                                                                     

privately  admonish  the  judge,  or  recommend  counseling."                                                                 AS  22.30.011(b).                       An  

                                                                                                                                                                     

 informal private admonishment "becomes a final disposition 16 days after service on the  

                                                                                                                                                                       

judge" absent a request for reconsideration.  Alaska Jud. Conduct Comm'n R. 11(b)(2).  

                                                                                                                                                                              

While a formal hearing can lead to a disciplinary recommendation referred to this court,  

                                                                                                                                                                 

we have no express statutory role in disciplinary decisions that do not reach this stage.  

                                                                                                                                                                              

                                                                                                                                                  (continued...)  



                                                                                    -5-                                                                           7156
  


----------------------- Page 6-----------------------

                                                                                                       7  

recommendation decision has been reviewed by this court.                                                   We have also previously       



determined that our review was appropriate under similar circumstances in the attorney                                                   



discipline context.  In  Anderson v. Alaska Bar Ass'n                                       a complainant asked us to review       



the Bar Association's decision not to open an investigation into his grievance alleging  

                                     8   The Bar Rules did not provide for supreme court review of these  

attorney misconduct.                                                                                                                           



grievance-closing decisions, but we nonetheless concluded that such decisions "may,  

                                                                                                                                             

upon timely request of a complainant, be reviewed by this court."9                                                    We explained that  

                                                                                                                              



our conclusion was "based . . . on the presumption of reviewability pertaining to all final  

                                                                                                                                                



administrative orders, and the inherent authority of this court to regulate the practice of  

                                                                                                                                                    

law."10  



                       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  

                                                                                                                                        



            6          (...continued)  



                                        

See AS 22.30.011(b), (d).  



            7          In   a   prior   disciplinary   case   this   court   reviewed   and   upheld   the  

                                                                                                                                                

Commission's decision not to grant a motion to dismiss at the formal hearing stage  

                                                                                                                                              

before addressing the Commission's substantive disciplinary recommendation.  In re a  

                                                                                                                                                     

Judge (Judge II), 822 P.2d 1333, 1337, 1339 (Alaska 1991).  

                                                                                                           



            8          Anderson v. Alaska Bar Ass'n , 91 P.3d 271, 271-72 (Alaska 2004) (per  

                                                                                                                                                

curiam).  



            9          Id. at 272.  

                                  



            10         Id .; see also McGee v. Alaska Bar Ass'n, 353 P.3d 350, 351 (Alaska 2015).  

                                                                                                                                            



                                                                         -6-                                                                  7156
  


----------------------- Page 7-----------------------

                              11  

the   judiciary."                    We   conclude   that   we   may,   upon   timely   request,   review   the  



 Commission's imposition of an informal private admonishment.                                   



                          As with all original applications for relief, a grant of this review is "not a                                                

                                                                                                                            12     We  appreciate  the  

matter   of   right   but   of   sound   discretion   sparingly   exercised."                                                                                    



 importance of informal disciplinary tools and the Commission's expertise in handling  

                                                                                                                                                       



these  matters.                   Nonetheless,  an  informal  private  admonishment  can  become  an  

                                                                                                                                                                  

 aggravating factor in a future disciplinary matter,13  and Appellate Rule 404 is the only  

                                                                                                     

 avenue of relief for a judge who wishes to challenge such an admonishment.14   And the  

                                                                                                                                                                  



mere possibility of discretionary review should not impede the Commission's ability to  

                                                                                                                                                                    



 conduct informal investigations or affect the Commission's procedures.  

                                                                                                                     



                          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 address the statements of an independent campaign.  As the ultimate  

                                                                                                                                                        



             11           In re Hanson, 532 P.2d 303, 307 (Alaska 1975).                                                  See also  Alaska Const.  



 art. IV,  10 (stating that a judge "may be suspended, removed from office, retired, or                                               

 censured   by   the   supreme   court   upon   the   recommendation  of   the   [C]ommission"  

 (emphasis added)); Judge II, 822 P.2d at 1339;  In re a Judge  (Judge I  ), 788 P.2d 716,  

 722 (Alaska 1990).                     



             12           Alaska R. App. P. 404(a)(1).  

                                                               



             13           See  In  re  Dooley,  376  P.3d  1249,  1250-51  (Alaska  2016)  (listing  

                                                                                                                                                         

 "aggravating  or  mitigating  circumstances"  as  a  factor  when  determining  judicial  

                                                                                                                                                        

 sanctions); In re Estelle, 336 P.3d 692, 693, 697 (Alaska 2014) (adopting Commission's  

                                                                                                                                            

 disciplinary findings which included a decade-old informal private admonishment as an  

                                                                                                                                                                    

 aggravating circumstance).  

                         



             14           AS 22.30.011 makes no provision for direct appeal, which makes Alaska  

                                                                                                                                                          

R. App. P. 404 the sole recourse for supreme court review.  

                                                                                                    



                                                                                 -7-                                                                          7156
  


----------------------- Page 8-----------------------

 authority on matters of judicial discipline, we may "sparingly exercise[]" our discretion                                                                                                              



 to review and resolve these issues.                                     



                  B.               Standard Of Review                   



                                   "In judicial disciplinary proceedings, we conduct a de novo review of both                                                                                                         



                                                                                                                                                                      15  

 the alleged judicial misconduct and the recommended sanction."                                                                                                                                                  

                                                                                                                                                                            Although this matter  



                                                                                                                                                                                                                                    

 did not arise through the typical disciplinary process, we will apply those standards here.  



 IV.              DISCUSSION  



                                                                                                         

                  A.               Alaska Code Of Judicial Conduct  



                                                                                                                                                                                                             

                                   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  



                                           16  

                                                                                                                                                                                                                          

 of the judiciary"                               and "avoid impropriety and the appearance of impropriety in all the  



                                                 17  

                      

judge's activities."                                                                                                                                                                                            

                                                       In political activities a judicial candidate "shall maintain the dignity  



                                                                                                                                                                                                                       

 appropriate to  judicial office and  act in  a manner  consistent with the integrity  and  



                  15               In re Cummings                             , 211 P.3d 1136, 1138 (Alaska 2009).                                                               See also Judge II,  



 822    P.2d    1333,    1339    (Alaska    1991)   (reviewing    de    novo    "the    Commission's  

 determination that petitioner created an appearance of impropriety in violation of the                                                                                                                                  

 Code of Judicial Conduct").                                                The Commission asks us to review this matter under the                                                                                       

 deferential    standards    of    an    administrative    appeal.       Because    informal    private  

 admonishments are a form of judicial discipline, de novo review is consistent with prior                                                                                                                            

 case law.   



                  16               Alaska Code Jud. Conduct Canon 1.  

                                                                                                                             



                  17               Alaska Code Jud. Conduct Canon 2.  

                                                                                                                             



                                                                                                             -8-                                                                                                    7156
  


----------------------- Page 9-----------------------

                                                                18  

 independence of the judiciary."                                     He or she "shall not . . . knowingly misrepresent any                                              

 fact concerning the candidate or an opposing candidate for judicial office."                                                                           19  



                           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";20  "shall prohibit employees . . . who  

                                                                                                                                                                      



 serve at the pleasure of the candidate" from violating rules on the candidate's behalf and  

                                                                                                                                                                         



 "shall discourage  all other  employees .  . .  subject to  the candidate's direction and  

                                                                                                                                                                        

 control" fromcommitting the same violations;21 and "shall encourage [family members]  

                                                                                                                                                            



                                                                                                                          22  

to adhere to the same standards that apply 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."23  The  

                                                                                                                                                                         



 comments to Canon 5 provide one other reference to possible false and misleading  

                                                                                                                                                         



              18           Alaska Code Jud. Conduct Canon 5A(3)(a).                               



              19  

                                                                                                  

                           Alaska Code Jud. Conduct Canon 5A(3)(d)(iii).  



              20           Alaska Code Jud. Conduct Canon 5A(3)(c) (emphasis added).                                                       



              21           Alaska Code Jud. Conduct Canon 5A(3)(b) (emphasis added).  

                                                                                                                                           



              22           Alaska Code Jud. Conduct Canon 5A(3)(a) (emphasis added).                                                       



              23  

                                                                                                                                           

                           Alaska Code Jud. Conduct Canon 5A(1)(b) (emphasis added).  



                                                                                     -9-                                                                             7156
  


----------------------- Page 10-----------------------

 election   statements,   in   the   specialized   situation   where   a   candidate   seeking   judicial  



 appointment has attorney supporters:                 



                            [A]  judge need not object when individual lawyers or groups                                                  

                            of lawyers decide to circulate a letter in support of [his or her]                                                  

                            candidacy.       However,    these    letters    must    not    contain  

                            [forbidden] promises or statements . . . , must not contain                                        

                            false statements, and, in general, must not violate any other                                                    

                            provision of the Code.                        [24]  



 Given that the Code contemplates attorney discipline for candidates who do not become  

                                                                                                                                                                   

judges,25  this example is best viewed as a special case addressing conduct by members  

                                                                                                                                                                



 of  the  legal  profession.                           Thus,  its  applicability  to  the  conduct  of  organizers  of  an  

                                                                                                                                                                             



 independent judicial campaign appears to be limited.  

                                                                                              



                            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  

                                                                                                                                                                           



              24            Alaska  Code  Jud.  Conduct  Canon  5B(2)  cmt.  



              25            See  Alaska  Code  Jud.  Conduct  Canon  5E.  



                                                                                     -10-                                                                                      7156  


----------------------- Page 11-----------------------

 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."26  Such a duty might also chill others' protected speech  



in violation of the U.S. and Alaska Constitutions.27  

                                                                                                                                                        



                                        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.28  

                                                                                                                                                                                



                                        Thus, inadditionto determiningwhether 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  

                                                                                                                                                                                                                                                     



                    26                 Alaska Code Jud. Conduct Canon 5A(3)(a).                                                              



                    27                 U.S.  Const.  amend.  I;  Alaska  Const.  art.  I,    5.                                                                                                       See  also  False  or  

                                                                                                                                                                                                                                                       

                                                                                                                  UDICIAL  CONDUCT  REPORTER, no. 2, 2016, at 1   

Misleading Campaign Statements, 38 J 

                                   

 (collecting cases addressing the First Amendment implications of prohibitions on false                                                                                                                                                          

 or misleading statements in judicial elections).                                                          



                    28                  For instance, the Indiana Supreme Court disciplined a candidate because,  

                                                                                                                                                                                                                                      

 inter alia, she did not seek correction of a newspaper article for which she had been  

                                                                                                                                                                                                                                                

interviewed  that  attributed  a  falsehood  about  her  opponent  to  her.                                                                                                                                             In  re  Davis,  

                                                                                                                                                                                                                                          

No. 24S00-1210-JD-610 (Ind. May 7, 2013).  

                                                                                                                                       



                                                                                                                          -11-                                                                                                                  7156
  


----------------------- Page 12-----------------------

test we evaluate "whether the judge failed 'to use reasonable care to prevent objectively                                                        

reasonable persons from believing an impropriety was afoot.' "                                                            29  This duty is "one of  



                                                                                                                                                                  

taking 'reasonable precautions' to avoid having 'a negative effect on the confidence of  



                                                                                                      30  

                                                                                                    

the thinking public in the administration of justice.' " 



             B.           Mailer And Website  

                                                   



                          The independent campaign producedamailer andawebsite containing two  

                                                                                                                                                               



prominent quotes. The Commission found that the quotes gave the false impression that  

                                                                                                                                                               



another judge and the Commission endorsed the judge's retention.  Both the mailer and  

                                                                                                                                                               



the website stated that they were "Paid for by Friends of [the Judge]" and that the  

                                                                                                                                                               



communications were "not authorized, paid for or approved by the candidate."   As  

                                                                                                                                                               

required by law, the disclaimer was placed so as to be "readily and easily discernible."31  

                                                                                                                                           



                                                                                                                                                                  

                          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  



             29          In re Johnstone                , 2 P.3d 1226, 1235 (Alaska 2000) (quoting                                          Judge II        , 822   



P.2d 1333, 1340 (Alaska 1991)).                   



             30          Judge I, 788 P.2d 716, 723 (Alaska 1990) (quoting In re Bonin, 378 N.E.2d  

                                                                                                                                                         

669, 682-83 (Mass. 1978)).  

                                       



             31          AS 15.13.135.  

                                  



                                                                               -12-                                                                         7156
  


----------------------- Page 13-----------------------

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.  

                                                                   



          C.        Social Media Advertisement  

                                           



                    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.  

                                  



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----------------------- Page 14-----------------------

V.       CONCLUSION  



                 Forthereasonsexplainedabove, weREVERSEtheCommission's informal  

                                                                                                      



private admonishment and DISMISS the Commission's complaint against the judge.  

                                                                                                       



                                                       -14-                                               7156
  

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