A. Political Conduct in General.

     (1) A judge or a candidate* for public election* to judicial office shall not: 
  
           (a) act or hold himself or herself out as a leader or hold any office in a
         political organization*;

          (b) make speeches for a political organization or candidate or publicly
        endorse a candidate for public office;

          Commentary: A candidate does not publicly endorse another candidate for public
        office by having his name on the same ticket.
          
          (c) solicit funds for or pay an assessment or make a contribution to a

           political organization, or purchase tickets for political party dinners, or

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(a) In every year in which a general election is held in this State and at such other times as the Commission may deem appropriate, the Chair shall name three (3) members to a Special Committee on Judicial Election Campaign Intervention ("Special Committee") whose responsibility shall be to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The membership of such committee shall consist of the senior member of each of the three (3) categories of Commission membership if available, and if not, the next most senior member from that category. The Commission Director shall also serve as an ex-officio member. The objective of such committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority:

(b) Upon receipt of a complaint or otherwise receiving information facially indicating a violation by a judicial candidate of any provision of Canon 7 during the course of a campaign for judicial office, the Director shall immediately forward a copy of the same by facsimile and U.S. Mail to the Special Committee members and said Committee shall:

(c) All proceedings under this Rule shall be informal and nonadversarial, and the Special Committee shall act on all complaints within ten (10) days of receipt, either in person; by facsimile; by U.S. Mail; or by teleconference.

(d) Except as hereinabove specifically authorized, the proceedings of the Special Committee shall remain confidential as provided in Rule 20, and in no event, shall the Committee have the authority to institute disciplinary action against any candidate for judicial office, which power is specifically reserved to the full Commission under applicable rules.

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An inquiry has been made of the Commission concerning the propriety under Canon 7 of a judge accepting an invitation to attend a meeting sponsored by a political party for the purpose of reporting on and discussing pertinent matters relating to the judicial system.

It is our view that there would be no objection to a judge attending a meeting sponsored by a political party for the purpose of speaking on subjects concerning the judicial system.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A) 7(A)(l), 7(A)(2), 7(B)(1), 7(B)(2).

Cross reference to other relevant opinions for review: #23, #36, #81, #83, #108, #124, #165.]

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In response to a request for an opinion from the Commission by a candidate for election to fill a vacancy in a judicial office, the Commission has considered the provisions of Section (B)(1)(b) of Canon 7 which require that:

A candidate . . . for a judicial office . . . should prohibit public officials or employees subject to his direction or control from doing for him what he is prohibited from doing under this Canon...

The question propounded to the Commission addresses itself to whether this provision would prohibit, for example, a public official of a municipality from acting on a candidate's campaign finance committee under Section B(2) of Canon 7.

It is the opinion of the Commission that the provisions of Section B(1)(b) apply only to public officials or employees who are "subject to the candidate's direction and control"; and, hence, that the provisions of this section would not prohibit an individual from acting on the finance committee of a candidate for judicial office simply because that individual was a municipal officer not in any way subject to the control or supervision of the candidate.

It is difficult to envision how a public official or employee could be subject to the control of a candidate for judicial office who is not the incumbent. However, this section deals with not only the conduct of a non-incumbent but an incumbent as well, and undoubtedly this provision primarily directs itself to the situation where an incumbent judge running for re-election might use those under him and subject to his supervision and direction to carry on campaign activities that he would not be in a position to conduct.

[Pertinent Code of Judicial Conduct provisions: Canons 2(B), 7(B)(l), 7(B)(2). Cross reference to other relevant opinions for review: #5, #56, #58, #106.]

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A candidate for judicial office has inquired of the Commission whether it is required under the Code of Judicial Conduct (Canon 7(B)(2)) that he maintain a separate bank account and appoint a campaign committee for expenditures even though he will not accept contributions and the funds expended will be only his personal funds.

It is our opinion that in these circumstances the provisions of Canon 7(B)(2) do not apply.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B)(2). Cross reference to other relevant opinions for review: #7, #22, #41, #56, #85, #106, #123, #163.]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), and because time limits for campaign fund raising were deleted from Georgia's Code of Judicial Conduct in 1984.

An incumbent judge who had opposition in the primary has asked that the Commission advise him as to whether it is proper under the Code of Judicial Conduct (Canon 7(B)(2)) for a committee established by him to sponsor a dinner for the purpose of soliciting contributions to make up a campaign deficit.

It is the Commission's opinion that this is permissible, provided (a) the dinner is held and the solicitation is conducted prior to the General Election in November, 1976, and (b) the judge does not attend the dinner or otherwise participate in any way in the solicitation effort.

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver b. Bonner, 309 F.3d 1312 (11th Cir. 2002), and because time limits for campaign fund raising were deleted from Georgia's Code of Judicial Conduct in 1984.

An incumbent judge, who intends to qualify in his party primary in 1978, has established a campaign committee in accordance with Canon 7(B)(2). The committee desires to hold a supper to raise funds for the judge's qualifying fee and for other campaign expenses. In this connection, the judge has requested the Commission's advice with respect to the following questions:

(1) Would it be proper for the judge to attend the supper, if one is held?

(2) Can the money raised be used to pay his qualifying fee?

(3) When can such a supper be held?

(4) At such a supper, can speeches be made in support of his candidacy?

After reviewing Canon 7(B)(2), the Commission has concluded that these questions should be answered as follows:

(1) The judge should not attend such a supper or participate in any way in the arrangements for it. (A similar question was answered in Opinion No. 7 dated August 31, 1976. The Commission there stated that it would be proper for a campaign committee to sponsor a dinner for the purpose of soliciting contributions to make up a campaign deficit after a party primary if the dinner were held before the General Election and the judge did not attend or otherwise participate in any way in the solicitation effort.)

(2) Yes.

(3) Such a supper can be held no earlier than six months before the primary election, and no later than the date of the last contested primary or election in which the judge participates; nor should the supper be publicly announced nor tickets sold until after the beginning of the six month period before the primary election.

(4) Yes, subject to the answer to the first question above.

[Cross reference to other relevant opinions for review: #7, #41, #56, #85, #106.]

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WITHDRAWN: This Opinion is reversed and superseded by Opinion 36, and is further withdrawn to the extent that it conflicts with current Canon 7(b)(2).

The Commission has been asked for an advisory opinion concerning whether it would be a violation of the Code of Judicial Conduct for a judge to purchase a ticket to and attend the Democratic Party Jefferson Jackson Day Dinner.

Under the provisions of Canon 7(A)(1)(c), it is provided that "A judge . . . should not . . . solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions, except as authorized in subjection (a)(2)."

Subsection a(2) provides that "A judge holding an office filled by public election between competing candidates, or a candidate for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings on his own behalf when he is a candidate for election or reelection, identify himself as a member of a political party or organization."

Clearly, the provisions of Subsection A(1)(c) prohibit a judge from attending political gatherings or purchasing tickets for political party dinners, which, in the opinion of the Commission, would make it improper for a judge to purchase a ticket to or attend a function such as the Jefferson-Jackson Day Dinner.

It is the Commission's view that Subsection a(2) of the Canon applies only where there is a pending election in connection with which a judge has qualified for re-election.

[Cross reference to other relevant opinions for review: #1, #36, #81, #83, #108, #118, #124, #147, #165.]

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A retired Judge of the Court of Appeals of Georgia who does not hold Emeritus status, but who retired and received retirement benefits pursuant to Ga. Laws 1971, page 99 (Ga. Code Anno., Section 40-2535), has requested an advisory opinion from the Commission concerning whether it would constitute a violation of the Code of Judicial Conduct for such retired Judge to participate in or contribute to political campaigns of candidates for public office.

Canon 7 of the Code of Judicial Conduct provides:

A judge should refrain from political activity inappropriate to his judicial office.

The Code of Judicial Conduct further reads in part:

Compliance with Code of Judicial Conduct. Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All Judges should comply with this Code. . .

It is the view of the Commission that the Code of Judicial Conduct applies only to those persons who are authorized by law to perform judicial duties and who are properly commissioned according to law to perform such duties. It is the further view of the Commission that one who has retired from the Court of Appeals of Georgia pursuant to Ga. Laws 1971, page 99 et seq., does not hold "judicial office" as that term is used in Canon 7 of the Code, nor is he an "officer of the judicial system performing judicial functions" as that term is used in the portion of the Code requiring compliance therewith.

Accordingly, it is the opinion of the Commission that a person who has retired as a Judge from the Court of Appeals of Georgia under the provisions of Ga. Laws 1971, page 99 et seq. (Ga. Code Anno., Section 40-2535), is not required to comply with the Code of Judicial Conduct, unless he subsequently becomes a judge of a judicial system and is commissioned and authorized by law to perform judicial functions, or becomes a candidate for election to judicial office.

This opinion is not applicable to those persons holding Emeritus or Senior Judge status as provided by law.

[Pertinent Code of Judicial Conduct provisions: Canons 7(A)(1), Introduction To Compliance Provisions. Cross reference to other relevant opinions for review: #8, #111, #147.]

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NOTE: The 1973 Code of Judicial Conduct restrictions on family members of a judge were deleted by 1984 amendment.

The Commission has been requested to render an opinion concerning whether the wife of a candidate for judicial office should resign her position on a county political committee. Canons 7(A)(1)(a)(b), and (c) provide that:

(1) A Judge or a candidate for election to judicial office should not: (a) act as a leader or hold any office in a political organization; (b) make speeches for a political organization or candidate or publicly endorse a candidate for public office; (c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions, except as authorized in subsection A(2).

Canon 7(B)(1)(a) provides:

(1) A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election: (a) should maintain the dignity appropriate to judicial office, and should encourage members of his family to adhere to the same standards of political conduct that apply to him.

In view of the requirements of Canon 7(A)(l)(a), (b), and (c), and of Canon 7(B)(1)(a) the Commission concludes that the wife of a candidate for judicial office should not serve on a county political committee. It would not be appropriate for the candidate himself to do so, and under the Code of Judicial Conduct (Canon 7(B)), the candidate "should encourage members of his family to adhere to the same standards of political conduct that apply to him."

[Pertinent Code of Judicial Conduct provisions: Canons 7(A)(l), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #58, #147, #163, #191.]

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NOTE: Opinion No. 36 reverses the holding and authority of Opinion No. 23.

The Judicial Qualifications Commission has been requested to render an opinion as to whether a judge may join the Georgia Federation of Democratic Women, which is an affiliate of the Democratic Party of Georgia.

It is our opinion that the inquiry should be answered in the affirmative subject to certain qualifications.

The applicable Canon is Canon 7 which is divided into two sections, section a dealing with "Political Conduct in General," and section B, having to do with "Campaign Conduct."

Sections A(1)(a), (b), (c) spell out certain prohibited acts. In paragraph (a) it is provided that a judge should not act as a leader or hold any office in a political organization. In paragraph (b) it is stated that a judge shall not make speeches for a political organization or publicly endorse a candidate for public office. Finally, in paragraph (c) it is provided that a judge shall not solicit funds, pay an assessment or make any contributions to a political organization or candidate, attend political gatherings or purchase tickets for political party dinners, or other functions except as authorized in subsection A(2).

It thus appears that the prohibitions set forth in section 7(A)(1)(a) and (b) are strictly prohibited, but that the prohibitions set forth in 7(A)(1)(c) are qualified prohibitions and may be permissible under 7(A)(2). The latter section permits a judge "only insofar as permitted by law" to attend political gatherings, speak to such gatherings on his own behalf when he is a candidate for election or re-election, identify himself as a member of a political party, and contribute to a political party or organization.

It is to be noted that 7(A)(2) makes no exception to the prohibition of 7(A)(1)(c) concerning the solicitation of funds for a political organization or candidate so that such prohibitions should be considered as being generally impermissible acts and as falling in the same category as those acts listed in 7(A)(1)(a))and (b).

While it is also true that 7(A)(1)(c) proscribes a judge from paying "an assessment" or "making a contribution to a political organization," and 7(A)(2) speaks only of contributing to a political party or organization, we are of the opinion that no distinction should be made between an "assessment" and a "contribution." Both suggest the payment of funds to a political organization and there appears no logical reason why, if a judge may contribute to a political organization, he may not do so in the form of an assessment.

It is also true that while 7(A)(1)(c) speaks of his "purchase [of] tickets for political party dinners, or other functions," and 7(A)(2) does not address itself directly to such gatherings; nevertheless, it appears to us that to the extent of the applicability of 7(A)(2) to the judges of this state, the permissive acts set out in that subsection must necessarily permit the purchasing of tickets for political party dinners or other functions. This is a means whereby a judge in an elective office may identify himself with a political party, attend its political gatherings and make contributions to the party.

This leads to an inquiry as to what is the controlling factor that makes certain of the prohibitions stated in 7(A)(1)(c) nevertheless permissible under 7(A)(2). That answer appears to relate to and depend upon a proper construction of the provisions in 7(A)(2) permitting the acts therein listed "only insofar as permitted by law."

On the subject of the meaning of "only insofar as permitted by law," the Reporter's Notes to the Canons state that "The source for the permission, however, is not to be found in the Code; the judge or candidate must be able to establish that his conduct is permitted by the law of his jurisdiction. The applicable law may be statutory or common law; usually it will be found in the general statutes establishing standards of conduct for elective public officer."

The difficulty here encountered is whether the clause "only insofar as permitted by law" is to be construed as meaning that the specific acts set forth in 7(A)(2) must be specifically authorized by the law of this state or whether these acts are to be considered as permitted under the law of this state if there is no law which prohibits them.

In this state, with few exceptions, judges are elected by the people and in the process they may attain re-election to a judicial office through first an election held by a political party as a result of which the judge, if the successful candidate, becomes the party's nominee to be placed on the general election ballot. It would therefore follow that our laws expressly recognize that a judge in seeking re-election may do so through membership in a political organization, which to us necessarily implies that he would be permitted to identify himself as a member of that party, contribute to the financial needs of the party and solicit the support of the party and its members on his own behalf when he is a candidate for re-election. This conclusion would undoubtedly not be true where judges all attain re-election through non-partisan elections unless the described conduct was specifically authorized by law.

The provisions of Canon 7 are also applicable to "a candidate for election to judicial office." It might be said that since the prohibited conduct does not apply to a non-judge before he becomes a "candidate" for judicial office, that, likewise, the prohibition should not apply to a judge holding office until he becomes a "candidate" for re-election or election to some other judicial office. However, we cannot accept this as a reasonable interpretation of the Canon. A person who attains a judicial office becomes a judge and he does not lose that character simply because he is not at any given time a "candidate" for re-election or a "candidate" for election to some other judicial post. Once a judge, he remains a judge at all times while holding office. On the other hand, the Canon of necessity cannot apply to a non-judge seeking a judicial office until he becomes a "candidate."

It is not necessary that we comment here on when a person becomes a "candidate" for judicial office, but we consider it desirable to do so for guidance of those seeking election to a judicial office.

The foregoing conclusion concerning the application of the Canon to a judge, as distinguished from one seeking to become a judge would appear to give to a non-judge who is seeking election to a judicial post an advantage over a judge holding the office and to also give an advantage to a non-judge seeking a judicial post in opposition to a judge who seeks election to another judicial post (assuming in the process he retains the judgeship that he holds) in that at all times the judge is subject to the prohibitions of the Canon without respect to whether it might be said he is a "candidate" for re-election while the non-judge does not become subject to the Canon's proscriptions until he becomes a "candidate." The degree of advantage that the non-judge candidate has over the judge depends upon when it is to be considered that a non-judge becomes a "candidate." If the word "candidate" means only a person who has officially qualified in an election, then he would have a decided advantage since the judge because of his office alone is subject to the prohibitions, while the non-judge "candidate" would not be subject to the prohibitions until he qualifies as a "candidate." It is not unusual, but is in fact customary, that a substantial amount of important campaigning takes place for a considerable period of time before a person running for public office actually officially qualifies in the election. It would therefore seem that the word "candidate" insofar as it applies to a non-judge seeking election to an office, should be given a practical and not a technical meaning so that a non-judge should be considered a "candidate" at the point that the decision is made to seek election and when, pursuant to that decision, such non-judge who seeks to be elected as a judge begins, in any degree, to seek voter support whether done publicly or privately in furtherance of his intended qualification for election to the office. Thus, a non-judge candidate for a judicial post who at any time prior to an election acts to any degree contrary to the prohibition of the Canon should be able to establish that he was then in no sense, by acts or conduct, a "candidate" for the office within the meaning of that term as stated above.

Hence, we conclude that neither a judge holding office nor a non-judge candidate for a judicial office may act as a leader or hold any office in a political organization; make speeches for a political organization or candidate; publicly endorse a candidate for public office; solicit funds for a political organization, or solicit funds for or make a contribution to a candidate; but that a judge or a non-judge candidate for judicial office may attend political gatherings which are not held primarily for the benefit of specific candidates for office or which are not held as fund raising events for specific candidates or holders of elective offices; speak to such gatherings on his own behalf when he is a candidate for election or re-election, identify himself as a member of a political party and contribute to a political party or organization.

Of course, in doing those things that are permitted, a judge or non-judge candidate for judicial office is subject to the other requirements and prohibitions as set forth in 7(A)(3) and (4) and 7(B)(1)(a), (b), (c) and 7(B)(2) of the Code of Judicial Conduct.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 7(A)(l), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #l, #23, #58, #81, #83, #108, #118, #124, #147, #165.]

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NOTE: The Canon 7(A)(3) "resign to run provisions" of the 1973 Code of Judicial Conduct were eliminated in 1984.

The Judicial Qualifications Commission has been requested to render its opinion concerning the propriety, under the Code of Judicial Conduct, of a lawyer becoming a candidate for judicial office while holding the office of mayor of a municipality.

While Canon 7(A)(3) directs that:

A judge should resign his office when he becomes a candidate either in a party primary or in a general election for a non-judicial office . . .,

there is no express provision in the Code which specifically prohibits a person holding a non-judicial public office from at the same time being a candidate for a judicial office. However, Canon 7 applies both to judges and to candidates for judicial office and it is our view that if it would be improper for a judge to be a candidate for a non-judicial office, it would appear as a reasonable conclusion therefore that a person who is a candidate for judicial office should not hold a non-judicial office which it would be improper for him to hold in the event he is elected as judge.

The mayor of a city acts in an executive as well as in most cases a legislative capacity, and it would seem that it would be incompatible for a judge to hold such an office.

[Pertinent Code of Judicial Conduct provisions: Canons 1, 4(C), 5(G), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #26, #29, #118, #196.]

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NOTE: As of January 2004, Canon 7(B)(2) has been substantially revised.

The Judicial Qualifications Commission has been requested to render an opinion concerning whether a finance committee appointed by a candidate under Canon 7(B)(2) may appropriately raise funds with which to pay the qualifying fee of the candidate either in a primary or general election.

The Commission is of the opinion that this inquiry should be answered in the affirmative.

Under Canon 7(B)(2), it is provided:

A candidate, including an incumbent judge, for a Judicial office that is filled by public election between competing candidates should not himself solicit or accept campaign funds, or solicit publicly stated support, but he may establish committees of responsible persons to secure and manage the expenditure of funds for his campaign and to obtain public statements of support for his candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from lawyers. A candidate's committees may solicit funds for his campaign no earlier than six (6) months before a primary election and no later than the date of the last election in which he participates during the election year. A candidate should not use or permit the use of campaign contributions for the private benefit of himself or members of his family.

The rule makes no specific distinction between solicitation of funds for the payment of a candidate's qualifying fee and funds used for advertising, clerical and other expenses in connection with a campaign for election, and we find nothing in the statement of the rule which would justify implying any such distinction.

It is also the opinion of the Commission that it makes no difference whether the candidate is or is not an incumbent judge nor whether the candidate for whom the funds are being raised has at that time any announced opposition so long as the activities of the finance committee take place within the time frame set out in the rule.

Contributions should, of course, be reported under the requirements of the Campaign and Financial Disclosure Act found in Chapter 40-38 of the Code of Georgia Annotated.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B)(2). Cross reference to other relevant opinions for review: #7, #22, #56, #85, #106.]

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The Judicial Qualifications Commission has been requested to give an opinion with respect to the following questions:

1. May an incumbent judge use his official letterhead stationary and envelopes (paid for at his own expense) in his campaign for re-election?

2. May an incumbent judge refer to himself as judge in his campaign for re-election and advertising connected therewith?

3. May an incumbent judge use a photograph of himself seated at his bench wearing his judicial robe in his advertising for re-election?

In the opinion of the Commission, none of the foregoing political conduct is prohibited by Canon 7 or violates any of the other Canons of the Judicial Code. For that reason, each of the foregoing questions, is answered in the affirmative.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B). Cross reference to other relevant opinions for review: #56, #83, #90, #167.]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F3d. 1312 (11th Cir. 2002).

The Judicial Qualifications Commission has been requested to give an Opinion with respect to the following questions:

(1) May a candidate or judge's campaign committee solicit campaign funds from the general public?

(2) Is the sentence, "Such committees are not prohibited from soliciting campaign contributions and public support from lawyers.", a limitation on solicitation of funds and support or does it mean in addition to the general public?

In the opinion of the Commission, Canon 7(B)(2) prohibits candidates, including incumbent judges, from soliciting contributions, but established committees may solicit campaign funds on behalf of candidates from the general public.

The sentence referred to in the second question is not, in the opinion of the Commission, a limitation on solicitation of funds and support, but means they may solicit from lawyers in addition to the general public.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B). Cross reference to other relevant opinions for review: #4, #5, #7, #22, #41, #55, #83, #85, #90, #106, #120, #123, #163, #167.

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The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether a candidate for a judicial office can reimburse himself for campaign expenditures from surplus campaign contributions at the conclusion of the campaign without violating Canon 7.

Canon 7(B)(2) expressly states that:

(2)... Candidates, including incumbent judges, should not use or permit the use of campaign contributions for the private benefit of themselves or members of their families.

In the question propounded, it is suggested that a judge who reimburses himself from surplus campaign funds contributed by others cannot be said to be using them for his own benefit so long as the amount so appropriated does not exceed the amount of his own campaign expenditures.

Use of such surplus funds to repay a judicial candidate for nothing more than contingent up front advances and loans made by him to his campaign committee pending receipt of adequate campaign contributions would be permissible and would not, in the opinion of the Commission, constitute a violation of Canon 7.

At the same time, a judge should be conscious of the admonition of Canon 2 that "Judges should avoid impropriety and the appearance of impropriety in all their activities." For that reason, before using such surplus funds for such a purpose, a judge should take special care to be sure that existing documentation justifies this use and that the documentation is preserved and that all reporting requirements of the Campaign Financial Disclosure Act (O.C.G.A. § 21-5-1 et seq.) are fully complied with.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 2(B), 7(A), 7(B). Cross reference to other relevant opinions for review: #5, #22, #41, #56, #85.]

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A member of the Bar has asked several judges to send recommendation letters to a screening committee for judicial appointments, and the Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether a judge can write such a letter without violating the Canons of Judicial Conduct.

In Opinion No. 9, in responding to a closely similar question, attention was directed to Canon 2 which provides that:

Judges should avoid impropriety and the appearance of impropriety in all their activities.

and to the provision of paragraph B, thereof in particular, which provides in part that:

. . . Judges should not lend the prestige of their office to advance the private interests of others; nor should they convey or permit others to convey the impression that they are in a special position to influence them.

From this it is clear that, if the letters are sought primarily by reason of the prestige of the judicial office, then the requested letters of recommendation from members of the judiciary violate Canon 2 and would be inappropriate. On the other hand, if the letters are sought, not primarily for that reason, but because of the peculiar opportunity of those from whom such letters are being sought to know and to recommend the applicant, then such recommendations would not constitute a violation of Canon 2. For that reason, the letters of recommendation sought in this instance would not, in the opinion of the Commission, constitute a violation of Canon 2.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 2(B), 3(B)(4), 4(C). Cross reference to other relevant opinions for review: #9, #30, #64.]

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NOTE: The Canon 7(A)(3) "resign to run provisions" of the 1973 Code of Judicial Conduct were eliminated in 1984.

The Judicial Qualifications Commission has been asked for an advisory Opinion on the following:

1. As to whether an appointed Magistrate, serving under an elected Magistrate, is a county employee, governed by county policy; and

2. As to whether a magistrate, as described above, should resign or take a leave of absence upon qualifying as a candidate for Chief Magistrate or Judge of the Probate Court.

The first question raises a legal or political issue unrelated to the Code of Judicial Conduct and, for that reason, the Commission declines to render an Advisory Opinion on the subject. With respect to the second question, the Code of Judicial Conduct, as amended effective March 15, 1984, no longer contains any prohibition against a judge becoming a candidate for political office while retaining his judicial position. For that reason, this question must be answered in the negative so far as Canon 7 of the Code of Judicial Conduct is concerned.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 3(A). Cross reference to other relevant opinions for review: #29, #39, #118.]

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The Commission has been asked for an Advisory Opinion as to whether it would be inappropriate for a judge to contribute to and attend a dinner of the Anti-Defamation League of B'nai B'rith honoring the Speaker of the Georgia House of Representatives with the "Torch of Liberty Award."

Canon 5(B) provides in part as follows:

B. Civic and Charitable Activities. Judges may not participate in civic and charitable activities that reflect adversely upon their impartiality or interfere with the performance of their judicial duties. Judges may serve as officers, directors, trustees, or non-legal advisors of educational, religious, charitable, fraternal, or civic organizations not conducted for the economic or political advantage of their members, subject to the following limitations

. . .

(2) judges should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of their office for that purpose, but they may be listed as officers, directors, or trustees of such organizations. A judge should not be a speaker or the guest of honor at an organization's fund-raising events, but may attend such events.

Canon 7(A)(1)(c) in turn states that a judge should not "make a contribution to a political organization or purchase tickets for political party dinners or other functions, except as authorized in subsection A(2)," which is not herein applicable. The Speaker of the House is certainly a significant political figure and the dinner clearly has political overtones, nevertheless, the Anti-Defamation League is not a political party.

The Commission is of the opinion that it would not be inappropriate for the judge to attend the dinner, nor would it be inappropriate for him to contribute.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #36, #83, #108, #118, #124, #147, #165.]

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WITHDRAWN: This Opinion is superseded by current Canon 7(B)(1)(b), which expressly allows a judicial candidate to publicly stat his or her personal views on disputed issues, see Republican Party of Minnesota v. White, 536 U.S. 765 (2002), but prohibits judicial candidates from making statements that "commit the candidate with respect to issues likely to come before the court." Canon 7(B)(1)(b).

The Commission has been asked for an opinion:

(1) As to whether Canon 7(B)(1) which, by its terms, applies to ". . . candidates . . . for a judicial office that is filled either by public election or on the basis of a merit system election" applies to candidates for appointment to the position of Magistrate by Superior Court Judges or Chief Magistrates, either with or without a Bar or citizen screening process, and

(2) As to whether Canon 7(B)(1)(c) which prohibits a candidate from announcing his views on disputed legal or political questions, makes it inappropriate for a judicial candidate to answer questions requiring rulings on hypothetical cases or which would involve the exercise of judicial discretion.

As to the first question, Canon 7(B), by its terms, applies only to candidates in contested public elections and, for that reason, it would not apply to a candidate for judicial appointment. At the same time, such a candidate would be subject to all other provisions set out in the canons.

As to the second question, while Canon 4(B) expressly authorizes judges to speak concerning the law, the legal system and the administration of justice, it is always inappropriate for a judicial officer or a candidate to address or answer questions which are intended, or will have the effect of committing him with respect to questions which may come before him as a judge, and thereby deprive him of the impartiality with which it is necessary for him to perform his judicial duties.

[Pertinent Code of Judicial Conduct provisions: Canons l, 2(A), 3(A), 4(A), 5(A), 7(B). Cross reference to other relevant opinions for review: #28, #32, #61, #82, #97, #102, #207, #213. ]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver b. Bonner, 309 F3d 1312 (11th Cir. 2002).

The Judicial Qualifications Commission has been asked for an opinion as to whether a candidate for judicial office:

1. may be informed as to the name of contributors to his campaign, or

2. if the answer to the foregoing is not an unqualified affirmative, may the candidate be informed as to the identity of those contributors whose contributions must be reported by his campaign committee to the Secretary of State on the prescribed form, and

3. if either or both of the foregoing are answered in the affirmative, may the candidate be informed as to the amount of the contribution from each contributor whose identity is revealed to him,

4. if any of the foregoing questions are answered in the affirmative, is it appropriate for the candidate to send a written acknowledgement of the contribution to each contributor whose identity may properly be revealed to him?

Amended Canon 7(B)(2) now provides in pertinent part as follows:

(2) Candidates, for a judicial office should not solicit campaign funds, or solicit publicly stated support, or be present at a function while solicitations of campaign funds on their behalf are conducted, but they may establish committees of responsible persons to secure and manage the expenditure of funds for their campaigns and to obtain public statements of support for their candidacies.

The stated purpose of this canon is to require that judicial candidates remain personally aloof from the direct solicitation of campaign contributions but no further restrictions are imposed and all campaign committees are required by law to file public financial disclosure reports stating the names of all contributors and the amounts contributed. (O.C.G.A. §§ 21-5-1 et. seq.) For that reason each of the questions submitted must be answered in the affirmative.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B)(2). Cross reference to other relevant opinions for review: #5, #7, #22, #41, #56, #106, #123, #163.].

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WITHDRAWN: This Opinion is withdrawn to the extent that the answer given to question number 5 below conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F3d 1312 (11th Cir. 2002).

The Judicial Qualifications Commission has been asked for an Advisory Opinion with respect to the following questions:

1. Is it appropriate and permissible for a candidate for a non-partisan judicial office to have in their political literature information concerning their political party affiliation and offices they have held in partisan organizations?

2. Is it permissible and appropriate for a candidate for a non-partisan judicial office to attend partisan political functions seeking the support / endorsement of these organizations?

3. Is it appropriate and permissible for the campaign committee of a candidate of a non-partisan judicial office to send letters to registered voters identifying the candidate's past political party affiliation and offices he has held and services he has performed for that political party, and additionally to point out the past voting record of the candidate and his opponents in the past partisan primaries?

4. Is it appropriate and permissible in a letter from the campaign committee of a candidate for a nonpartisan judicial office to the registered voters to indicate the information contained in Question Number Three above and to additionally represent that the person is qualified not only because of his experience, training and ability, but also because of his political party affiliations?

5. Is it appropriate for candidates in a nonpartisan judicial election, to attend fund raisers for candidates involved in partisan non-judicial elections?

6. What is the remedy, if any, concerning impermissible conduct of a candidate for a judicial office?

Canon 7(A)(2) provides as follows:

(2) A judge holding an office filled by public election between competing candidates, or a candidate for such office, may attend political gatherings and speak to such gatherings on his or her own behalf when he or she is a candidate for election or reelection.

The Code of Judicial Conduct contains no other provisions or restrictions relevant to the questions asked and, for that reason, Question 1 must be answered in the affirmative.

Question 2 must also be answered in the affirmative insofar as the candidate seeks the vote and support of the individuals present, but in the negative insofar as the candidate seeks the endorsement of a political party in a non-partisan election.

Question 3 must be answered in the affirmative even though the facts to be stated may well have a partisan political significance.

Question 4, however, must be answered in the negative because here the candidate is not only stating record facts, but is urging his qualification and election by reason of his party affiliation which constitutes a clear violation of the non-partisan basis of the election process itself.

As to Question 5, the candidate is not prohibited from attending the fund raiser provided he does not solicit or contribute in any way.

As to Question 6, if the impermissible conduct of the candidate amounts to a violation of the Code of Judicial Conduct, a complaint may be filed with this Commission. The availability of any other remedies is a legal question which it is not the province of this Commission to answer.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B). Cross reference to other relevant opinions for review: #55, #56, #83, #167, #214.]

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WITHDRAWN: This Opinion is superseded to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F3d. 1312 (11th Cir. 2002).

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether it is appropriate for a candidate for a judicial office to:

(1) recruit members for his or her campaign committee;

(2) set fund-raising goals for the committee and inform the committee of this goal; and

(3) set specific fund-raising goals for each member of the committee and inform each member as to the amount of his or her specific goal.

Canon 7(B)(2) provides in part as follows:

(2) Candidates, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not solicit campaign funds, but they may establish committees of responsible persons to secure and manage the expenditure of funds for their campaigns and to obtain public statements of support for their candidacies. . . .

From this, it is clear that it is not inappropriate for a candidate for a judicial office to select members of a campaign committee, and the first question must be answered in the affirmative. Neither would it be inappropriate for the candidate to discuss with the committee the magnitude of campaign financial requirements and to, thereby, establish goals for the campaign committee, so long as these discussions do not themselves involve solicitation or coercion, which is clearly prohibited by the Canon.

On the other hand, for the judge to take over the allocation of fund-raising responsibility and set specific fund-raising responsibility for each member of the committee would appear to be per se coercive and a direct participation in the solicitation process and, therefore, inappropriate. For that reason, the third question must be answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B)(2). Cross reference to other relevant opinions for review: #4, #5, #7, #22, #41, #56, #85, #123, #163.]

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An Advisory Opinion has been requested as to whether a judge can offer himself or herself as a delegate, uncommitted to any candidate, to participate in a political convention.

Canon 7 provides in part as follows:

A. Political Conduct in General.

(1) A judge or candidate for election to judicial office should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office.

For that reason, the foregoing question must be answered in the negative both because, as a delegate, the judge would hold an office in a political organization and because, even though initially uncommitted, the ultimate result of his participation as a delegate would be commitment to the party nominee.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #58, #36, #81, #83, #118, #124, #147, #165.]

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NOTE: The Canon 7(A)(3), "resign to run provisions" of the 1973 Code of Judicial Conduct were eliminated in 1984.

The Commission has been asked for an Advisory Opinion with respect to the following questions:

1. As to whether the Solicitor of a State Court must resign before becoming a candidate for Judge of that Court, as to which the answer is no.*

2. As to whether the Chairman of a County Democratic Committee and Vice President of the Georgia Association of Democratic County Chairman, and member of the State Committee of the Democratic Party, must resign from these positions upon becoming a candidate for judicial office, as to which the answer is yes, in view of the provisions of Canon 7(A)(l)(a) which provides as follows:

(1) A judge or a candidate for election to judicial office should not: (a) act as a leader or hold any office in a political organization.

*But, Art. 2, Sec. 2, Par. 5 of the Constitution provides that the office of any elected official shall be declared vacant upon such official qualifying for another elective office which begins more than 30 days prior to the expiration of such official's present term of office.

[Pertinent Code of Judicial Conduct provisions: Canons 1, 4(A), 5(C), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #26, #29, #36, #39, #58, #83, #108, #118, #124, #147, #165.]

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WITHDRAWN: This Opinion is withdrawn to the extent that the answer to question number 3 below conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

The Commission has been asked for an Advisory Opinion with respect to the following questions:

1. As to whether a person who has entered a nolo plea to a charge of malpractice in office and has been sentenced to one year probation is eligible to run for the office of Chief Magistrate, as to which the answer is no by virtue of the provisions of O.C.G.A. § 21-2-8.

2. As to whether a person can be employed as a deputy sheriff and run for Chief Magistrate at the same time, as to which the answer is yes, notwithstanding Opinion No. 39 of the Commission, which was superseded by amended Canon 7, as set out in the revised Code of Judicial Conduct adopted by the Supreme Court, effective March 15, 1984, and

3. As to whether it is a violation of Canon 7 for a candidate for Chief Magistrate to distribute cards saying, "Volunteers Needed," "Campaign Donations Appreciated," as to which the answer is yes by virtue of the provisions of Canon 7(B)(2).

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 2(B), 7(A), 7(B). Cross reference to other relevant opinions for review: #39, #56, #59, #147.]

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The Commission has been asked for an Advisory Opinion as to whether a pro hac judge may act as treasurer of the campaign committee formed to help re-elect another judge.

This question must be answered in the negative in view of the provisions of Canon 7(A)(1) which provides as follows:

A. Political Conduct in General.

(1) A judge or a candidate for election to judicial office should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or purchase tickets for political party dinners, or other functions, except as authorized in subsection A(2).

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(A)(1). Cross reference to other relevant opinions for review: #5, #7, #22, #41, #56, #58, #85, #106, #123, #163.]

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An opinion is requested as to whether it is appropriate for a judge who is in the second year of a four year term and plans to run for re-election, or for another judicial office at the expiration of his term

l. to attend a fund-raising event for a partisan, non-judicial candidate, provided he complies with the restrictions of Opinion No. 83 and Canon 5(B)(2) and the purpose of his attendance is to encourage individuals to vote for him in the future election; and

2. to attend an "appreciation dinner" for a friend who is retiring from the General Assembly, provided he complies with these restrictions imposed by Opinion No. 83; and

3. as to whether the judge is "a candidate for election or re-election" within the meaning of subsection A(2) of Canon 7 of the Georgia Code of Judicial Conduct.

Canon 7(A)(2) provides:

(2) A judge holding an office filled by public election between competing candidates, or a candidate for such office, may attend political gatherings and speak to such gatherings on his or her own behalf when he or she is a candidate for election or re-election.

If a Judge or a candidate has made the decision to run for election or re-election to public office, he is "a candidate for election or re-election" within the meaning of sub-section A(2) of the foregoing Canon and, if he is acting on his own behalf, pursuant to this purpose, questions one and two must be answered in the affirmative.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(l), 7(A)(2), 7(B)(1)(c). Cross reference to other relevant opinions for review: #1, #23, #36, #83, #108, #118, #147, #165, #208.]

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The Commission has been asked for an opinion as to whether a judge can serve as a member of the Executive Committee of the Democratic Party of a County. While this question has not been directly addressed, Canon 7(A)(1)(a) provides:

(1) A Judge or candidate for election to judicial office should not:

(a) Act as a leader or hold any office in a political organization; . . .

and, in Opinion No. 118, this Commission has held that a judge cannot serve as a member of the State Committee of The Democratic Party. For the same reason, a judge cannot serve as a member of a County Executive Committee of the Democratic party. As such, he would be both a leader and an office holder in a political organization in clear violation of the foregoing Canon.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(l), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #36, #58, #81, #83, #108, #118, #124, #147, #165.]

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The Judicial Qualifications Commission has been asked for an Advisory Opinion as to whether the mere designation, Democrat or Republican, of a candidate for the office of Probate Court Judge, most of whom are prevented by law from offering for election as nonpartisan candidates, is inappropriate.

This question is answered in the negative - it is not an inappropriate political activity. In Opinion No. 90, this Commission concluded that, even in a nonpartisan election it was not inappropriate for candidates to state their political party affiliation and offices they had held in partisan organizations and the same is true in a partisan election.

The candidates may also attend partisan political functions and seek the support / endorsement of these organizations, but the candidates may not, in either a partisan or a non-partisan election, represent that they are qualified, or better qualified, because of their political party affiliations.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #36, #58, #83, #90, #108, #124, #165, #167.]

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The Commission has been asked for an Advisory Opinion as to whether it is improper or unethical for a judge to make a personal financial contribution to a candidate for political office in a partisan race.

Canon 7 provides in part:

A. Political Conduct in General

(1) A judge or candidate for election to Judicial office should not:

(a) as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or purchase tickets for political party dinners, or other functions, except as authorized in Subsection A(2).

From this it follows that a judge is not prohibited from making a private personal contribution to a candidate for political office in a partisan race so long as it is done in such a way as not to constitute, or appear to be, a public endorsement of the candidate. However, a judge can make no contribution, either in cash or in kind, which might give the appearance of a public endorsement in violation of the prohibition of the Canon.

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #36, #81, #83, #108, #118, #124, #147, #165, #191, #203.]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver V. Bonner, 309 F.3d 1312 (11th Cir. 2002).

The Judicial Qualifications Commission has been asked for an Advisory Opinion as to the following:

Does a campaign committee composed solely of the spouse of a judicial candidate comply with the provisions of Canon 7(B)(2)?

Canon 7(B)(2) provides in part as follows:

(2) Candidates, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not solicit campaign funds, . . . but they may establish committees of responsible persons to secure and manage the expenditure of funds for their campaigns and to obtain public statements of support for their candidacies . . . .

From this, it is clear that it is not inappropriate for a candidate for a judicial office to select the members of his or her campaign committee. It is equally clear that this Canon envisions a committee composed of more than one responsible person whose primary purpose is to secure and expend campaign funds. However, since the candidate herself is expressly prohibited from soliciting campaign funds, it would be inappropriate for her husband to do so under the guise of a one-person campaign committee.

In addition, because Opinion No. 106 views the allocation of fund-raising responsibility and the setting of specific fund-raising responsibility for members of the committee as per se coercive and a direct participation in the solicitation process, it would seem to be highly improbable for violations not to occur under the circumstances presented. At least, a Canon 2 appearance of impropriety is likely, and for all these reasons, the question must be answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B)(2). Cross reference to other relevant opinions for review: #5, #7, #22, #41, #56, #58, #85, #106, #123, #163.]

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The Commission has been asked for an Advisory Opinion with respect to the following questions:

l. May a judge or candidate for a judicial position continue to serve or be elected by the voters or the committee to a county Democratic or Republican committee, if he or she is not an officer on that committee?

2. May a judge or candidate for a judicial position be elected as a delegate to a district, state or national convention?

The issues raised by these questions are controlled by Canon 7(A)(1) which provides:

A. Political Conduct in General.

(1) A judge or candidate for election to judicial office should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office.

These issues have previously been dealt with in Opinion Nos. 58 and 108, respectively.

In Opinion No. 58, the Commission concluded that it would not constitute a violation of Canon 7 for a Superior Court Judge's secretary, who had been a member and secretary of the County Democratic Executive Committee for many years, to serve in that capacity, unless it was undertaken or conducted on behalf of the judge or he undertook to influence or control her activity as a member of said Committee. However, after noting the express prohibition of Canon 7(B)(1)(b), the Commission further held: "A judge cannot permit any secretary, or any other employee, to become a member of, or to act for him as a member of, a County Democratic Executive Committee."

Implicit in this Opinion is the principle that a judge should not serve on a county political committee. In addition, Opinion No. 129 expressly concludes that a judge should not serve as a member of a county executive committee of the Democratic Party for the reason that as such he would be both a leader and office holder in a political organization in violation of Canon 7(A)(1). Finally, Opinion No. 118 holds that a judge cannot serve as a member of the State Committee of the Democratic Party. For these reasons, question 1 must be answered in the negative.

Question 2 is controlled by Opinion 108 which expressly requires a negative answer both because, as a delegate, the judge would hold an office in a political organization, and because, even if initially uncommitted, the ultimate result of his participation as a delegate would be commitment to the party nominee in violation of Canon 7(A)(1)(a) and (b).

[Pertinent Code of Judicial Conduct provisions: Canons 4(A), 5(C), 7(A)(1), 7(A)(2), 7(B)(1), 7(B)(2). Cross reference to other relevant opinions for review: #1, #23, #36, #58, #81, #83, #108, #118, #124, #129, #147, #203, #208.]

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NOTE: Former Canon 7(B)(1)(c) has been withdrawn, and replaced by Canon 7(B)(1)(c), which states that judicial candidates "shall not use or participate in the publication of a false statement of fact concerning themselves or their candidates, or concerning any opposing candidate or candidacy, with knowledge of the statement's falsity or with reckless disregard for the statement's truth or falsity." Subject to this narrowing qualification, the Opinion below still stands under the current Canon.

Opinions are requested with respect to the following questions:

(1) May the presiding judge of a State Court use the title "Judge" before his name in literature and advertisements in a campaign for Judge of the Superior Court?

(2) May any "Lower Court Part-Time Judge" refer to himself as "Judge" in a campaign for election and advertising connected therewith in a campaign for the Superior Court Bench?

(3) If the answer to number two is affirmative would the "Lower Court Part-Time Judge" be required to specify the "Lower Court Part-Time" Judge position which he holds whenever he refers to himself as a "Judge" in a campaign for election and advertising connected therewith to the Superior Court Bench?

(4) Must any "Lower Court Part-Time Judge," if he chooses to refer to himself as a "Judge" in his campaign for election and advertising connected therewith, clearly state that he is not currently a Judge on the bench in the Superior Court?

(5) May any "Lower Court Part-Time Judge" use a photograph of himself seated at his bench wearing his judicial robe in his advertising and campaign for the Superior Court bench?

These issues have been previously addressed in Opinion No. 55 with respect to an incumbent judge seeking re-election to the same office. In this instance, the facts presented involve a lower court part-time judge who is not an incumbent in the office to which he aspires. Nevertheless, the individual seeking election is in fact a judge and, accordingly, may properly refer to himself as such in political advertising so long as the judicial position which he currently holds is clearly specified therein and such advertisements are not otherwise misleading.

Accordingly, questions 1, 2, 3 and 5 are answered in the affirmative and question 4 is answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canons 2(A), 7(B). Cross reference to other relevant opinions for review: #55, #56, #83, #90, #211, #212.]

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An opinion is requested concerning the continuing viability of Opinion No. 141 in light of the requirements of Georgia's campaign disclosure laws as set forth in the Ethics in Government Act, O.C.G.A. §§ 21-5-1, et seq. In substance, this act requires that all campaign contributions in excess of $101.00 be reported to specified state election officials and permanently maintained for public inspection in the office of the Secretary of State.

These provisions are not addressed in Opinion No. 141 (October 25, 1989) wherein the Commission quoted pertinent provisions from Canon 7 of the 1984 Code of Judicial Conduct and concluded:

From this it follows that a Judge is not prohibited from making a private personal financial contribution to a candidate for political office in a partisan race so long as it is done in such a way as not to constitute, or appear to be, a public endorsement of the candidate. However, a judge can make no contribution, either in cash or in kind, which might give the appearance of a public endorsement in violation of the prohibition of the Canon.

The issue thus presented may be succinctly stated as follows:

Does a private, personal political contribution by a judge of a sum which is statutorily required to be publicly disclosed constitute a "public endorsement of a candidate" prohibited by Canon 7(A)(1)(b)?

Although the Commentary to this Canon specifically provides that "a candidate does not publicly endorse another candidate for public office by having his or her name on the same ticket," the phrase "public endorsement" is nowhere defined in the Code of Judicial Conduct. Nevertheless, it is the opinion of the Commission that the mere listing of a judge's contribution on a campaign disclosure report, which is statutorily required to be maintained for public inspection, does not, in and of itself, constitute a prohibited "public endorsement," however that term might be defined.

Individuals, including judges, make political contributions for varied reasons. It is not uncommon for an individual to contribute to several different candidates seeking the same office and often in identical amounts. Thus, the mere making of a campaign contribution, standing alone, may or may not signify an endorsement of a particular candidate, and unless the individual contributor does some additional act which publicly demonstrates his or her support for a candidate to a whom a contribution might have been made, it cannot be said that the contributor has "publicly endorsed" a particular candidate.

Moreover, in promulgating the 1984 amendments to the Code of Judicial Conduct, the Supreme Court substantially enlarged permissible political activities for judges and specifically eliminated the prior prohibition against judges making a contribution to a political candidate. The fact that subsequent legislation now requires contributions in excess of a certain amount to be maintained for public inspection does not alter the fact that such contributions have been specifically authorized by the Supreme Court of this State since 1984. Neither does such statutorily mandated disclosure rise to the level of personal public involvement obviously contemplated by the original drafters of the Code in prohibiting "public endorsements" by judges. [Illustrative examples of such personal public involvement are delineated in questions (2) - (8) of Opinion No. 147 (July 20, 1990).]

[Pertinent Code of Judicial Conduct provisions: Canon 7(A). Cross reference to other relevant opinions for review: #141, #147, #203.]

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WITHDRAWN: This Opinion is withdrawn to the extent that the answer to the second issue raised below conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

A potential candidate for magistrate judge seeks clarification of Canon 7 respecting the propriety of his appearing at fund-raising events for other political candidates, as well as his attendance at political party business meetings wherein the theme relates to fund-raising activities.

Canon 7(B)(2) prohibits candidates from being present at a function while solicitations of campaign funds on their behalf are conducted, while Canon 7(A)(1)(b) prohibits the public endorsement of a candidate for public office.

The Commentary to this latter Section notes that merely having his or her name on the same ticket with other candidates does not constitute a public endorsement, but neither of these sections speak directly to the first issue posed by this request.

However, as the Commission noted in Opinion No. 191, the Supreme Court substantially enlarged permissible political activities for judges in adopting the 1984 Code, and given the rationale of that opinion, the mere attendance by a candidate at a fund-raising event for another candidate would not, standing alone, constitute a prohibited "public endorsement."

In addition, if a private personal financial contribution in an amount exceeding $100.00 does not constitute a public endorsement (Opinion No. 191), the activities described in this request would not be inappropriate so long as they are done in such a way as not to constitute, or appear to constitute, a public endorsement of the candidate (see Opinion No. 141). The Commission makes this determination in recognition of the fact that most judges in this state must themselves periodically seek election to public office, and any other conclusion might be viewed as an unreasonable and unnecessary burden on the political process.

With respect to the second issue posed, a candidate's attendance at political party business meetings relating to fund raising would not be inappropriate provided the judge is not a member of this Committee (Opinion No. 165) and does not participate, either directly or indirectly, in any fund-raising efforts on behalf of the party or any candidate of the party.

[Pertinent Code of Judicial Conduct provisions: Canons 7(A), 7(B). Cross reference to other relevant opinions for review: #141, #147, #165, #191, #205.]

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A practicing attorney who expects to run against an incumbent Superior Court judge in the next election seeks an opinion as to whether such announced candidacy would require recusal by the incumbent judge in all cases in which such attorney might appear. Although similar questions have been previously addressed by the Commission, the precise issue raised by this request appears to be one of first impression.

Nevertheless, the issue of disqualification is governed by Canon 3(E)(1) which provides that judges should disqualify in proceedings in which their impartiality might reasonably be questioned, including, but not limited to, enumerated instances which do not include, as a per se ground for disqualification, the fact that counsel is an announced candidate for the judicial office then held by the trial judge. In addition, in Opinion No. 135, the Commission concluded that the filing of a lawsuit against the trial judge by an attorney for a party did not require automatic recusal in all cases in which such attorney appeared as counsel of record.

At the same time, if a judge is in fact biased or prejudiced toward a party and/or counsel because such counsel is seeking the judicial office then held by such judge, or for any other reason, or if, in addition to the political contest, other related circumstances are such that the judge's impartiality might reasonably be questioned, said judge has an affirmative duty to recuse, and a failure to do so may be challenged in the appropriate forum.

[Pertinent Code of Judicial Conduct provisions: Canons 3(E). Cross reference to other relevant opinions for review: #119 #135, #187, #188, #198.]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

A sitting Magistrate Judge intending to qualify and run for the position of Chief Magistrate seeks a definition of the words "publicly stated support" as used in Canon 7(B)(2), as well as answers to other specific questions hereinafter discussed in this Opinion.

Extensive research fails to reveal any precise definition in Georgia or elsewhere of the words "publicly stated support" as used in Canon 7(B)(2). However, a reading of this Canon in its entirety demonstrates an intention to establish identical standards for the procurement of publicly stated support and the procurement of campaign funds. Hence, the stated requirement that neither be personally solicited by a candidate and that both be undertaken only by a duly established campaign committee.

While public support and/or endorsements may properly be sought from lawyers, bar associations, civic clubs, private interest groups and the like by a duly established campaign committee, neither an incumbent judge nor a candidate for judicial office may personally ask any such individual or group for permission to place the supporter's name in any form of campaign literature or media advertisement. Thus, personally seeking any form of public expression of support or other form of written endorsement for use in a judicial campaign is the activity intended to be prohibited by the language used in Canon 7(B)(2). Such language does not, however, prohibit candidates for judicial office from personally establishing committees of responsible persons to obtain public statements of support for such candidates nor prohibit such committees from thereafter publicizing the names of the individual members in such fashion as to maintain the dignity appropriate to judicial office.

Canon 7(A)(2) authorizes judicial candidates to attend political gatherings (such as a "fish fry") for which tickets have been sold by the candidate's campaign committee and to speak to such gatherings on their own behalf without any mention or solicitation of funds.

[Pertinent Code of Judicial Conduct provisions: Canons 7(A), 7(B). Cross reference to other relevant opinions for review: #22, #41, #56, #106, #163.]

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An opinion is requested on the following issue:

Are the provisions of Canon 7 of the Code of Judicial Conduct applicable to a Judge who holds Senior status, but who does not hear cases or otherwise perform judicial duties?

The Application Section of the 1994 Code of Judicial Conduct provides:

Anyone ... who is an officer of a judicial system performing judicial functions ... is a judge for the purposes of this Code. All judges shall comply with this Code except as provided below.

No such exception is provided in the Application Section, and the only specific exception for Senior Judges is found in Canon 5(E) which permits such judges to act as arbitrators or mediators for compensation.

At the same time, the Applicability section of Canon 7 provides that such Canon generally applies to all incumbent judges and judicial candidates.

Since an inactive Senior Judge is neither "performing judicial functions" nor an "incumbent judge or judicial candidate," it can be argued that such judges are exempt from the requirements of Canon 7.

However, Canon 2(B) provides that:

Judges shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .

Thus, while an inactive Senior Judge may well not be subject to the requirements of Canon 7, all judges are subject to the requirements of Canon 2(B) and, hence, prohibited from using the judicial office in an attempt to advance the political interests of others.

Accordingly, if Senior Judges desire to engage in political activity, such judges shall first declare themselves ineligible to serve as judges in compliance with existing court rules and thereafter refrain from using either their titles or judicial positions to further the interests of any political candidate.

In sum, an inactive Senior Judge may appropriately engage in political activities, but only as a private citizen with absolutely no reference being made to his or her judicial position.

[Pertinent Code of Judicial Conduct provisions: Canons 2(B), 5(E), 7. Cross reference to other relevant opinions for review: #25, #111, #200.]

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WITHDRAWN: This Opinion is superseded by current Canon 7(B)(1)(b), which expressly allows a judicial candidate to publicly state his or her personal views on disputed issues, see Republican Party of Minnesota v.White, 536 U.S. 765 (2002), but prohibits judicial candidates from making statements that "commit the candidate with respect to issues likely to come before the court." Canon 7(B)(1)(b).

An opinion is requested on the following issue:

May a judge or a candidate for public election to judicial office appropriately discuss the qualifications and/or performance of opposing candidates, including incumbent judges, or is such conduct prohibited by the language of Canon 7(B)(1)(c)?

This is an issue of first impression for this Commission, but one previously addressed by other judicial conduct organizations, as well as numerous courts. A review of these authorities leads to certain well-established principles which are presented for future reference and guidance.

The qualifications of a candidate are a legitimate topic for discussion in the course of a campaign. However, various interpretations of Canon 7(B)(1) do appear to limit a candidate to a discussion of judicial system improvements and reforms the candidate wishes to implement, and truthful criticism of the qualifications of an opponent. At the same time, an incumbent is not expected to remain silent in the face of criticism, and may refer to his or her own record, court statistics or other facts. Finally, as noted in Opinion No. 82, it is always inappropriate for a judicial candidate to address issues which will have the effect of committing the candidate to certain positions with respect to questions which may come before the candidate as a judge.

In sum, fair and truthful criticism of an opponent is not prohibited by Canon 7(B)(1)(c), but such criticism may not be of such a nature as to bring the candidate's own impartiality or that of the judiciary into question.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B). Cross reference to other relevant opinions for review: #60, #82, #110, #147, #150, #213.]

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An opinion is requested on the propriety of the following political conduct:

Is it appropriate for a candidate for Judge of the Superior Court to participate in and actually vote at a meeting of a county political party committee called to elect his replacement as committee chairman after publicly announcing his resignation in order to seek the judicial position?

As defined in the "Terminology Section" of the Code of Judicial Conduct, a "candidate" is a "person seeking selection for ... judicial office by election. . . . a person becomes a candidate for judicial office as soon as he or she makes a public announcement of candidacy ..." or has made the decision to run for office. (Opinion No. 124, paragraph 3, July 29, 1988.) Canon 7(A)(l)(a) provides:

A judge or a candidate for public election to judicial office should not:

(a) act as a leader or hold any office in a political organization;

and Opinion No. 165 (April 24, 1992) expressly holds that a judge or candidate for a judicial position may not continue to serve on a county political committee even if such individual is not an officer of that committee.

Measured by these standards, the issue posed must be answered in the negative.

The Commission reminds all candidates, including incumbent judges, of the Applicability provisions of Canon 7(C), and urges full and immediate compliance with the requirements of this Opinion.

[Pertinent Code of Judicial Conduct provisions: Canons 7(A), 7(C). Cross reference to other relevant opinions for review: #90, #108, #124, #129, #165.]

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An opinion is requested on the propriety of the following described political conduct:

Is it appropriate for a sitting State Court Judge to display a bumper sticker on his personal vehicle reading "RE-ELECT (NAME OF INCUMBENT SUPERIOR COURT JUDGE)" and to also publicly state: "I'm doing all I can to help my friend (name of incumbent Superior Court Judge)"?

Canon 7(A)(1)(b) provides:

(1) a judge ... should not:

(b) ... publicly endorse a candidate for public office;

and in Opinion No. 147 (July 20, 1990), this Commission held that a judge could not place a bumper sticker endorsing the candidacy of his brother on his automobile.

Measured by these standards, the questions posed must be answered in the negative.

The Commission reminds all candidates, including incumbent judges, of the Applicability provisions of Canon 7(C) and urges full and immediate compliance with the requirements of this Opinion.

[Pertinent Code of Judicial Conduct provisions: Canons 7(A), 7(C). Cross reference to other relevant opinions for review: #141, #147, #191, #203, #205.]

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An opinion is requested on the propriety of the following political conduct:

Is it appropriate for a candidate for Judge of the Superior Court to publish a newspaper advertisement with the following language appearing immediately below his photograph:

Paid for by Candidate

Send Contributions to

Committee to Elect (Name to Candidate)

Address (Omitted)

Phone No. (Omitted)?

Canon 7(B)(2) provides in pertinent part:

Candidates ... should not themselves solicit campaign funds ... but they may establish committees of responsible persons to serve and manage the expenditures of funds for their campaigns . . . .

Measured by this standard, the political advertisement quoted above is technically in violation of this provision, and accordingly, the issue posed must be answered in the negative.

The Commission reminds all candidates, including incumbent judges, of the Applicability provisions of Canon 7(C) and urges full and immediate compliance with the requirements of this opinion.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B), 7(C). Cross reference to other relevant opinions for review: #56, #85, #90, #106, #120.]

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NOTE: Former Canon 7(B)(1)(c) has been withdrawn, and replaced by Canon 7(B)(1)(c), which states that judicial candidates "shall not use or participate in the publication of a false statement of fact concerning themselves or their candidacies, or concerning any opposing candidate or candidacy, with knowledge of the statement's falsity or with reckless regard for the statement's truth or falsity." Subject to this narrowing qualification, the Opinion below still stands under the current Canon.

An opinion is requested on the propriety of the following political conduct:

Is it appropriate for a candidate for Judge of the State Court to use the designation "Judge" in political advertising without clearly designating therein the judicial position currently held by such candidate?

Canon 7(B)(1)(c) provides in pertinent part:

Candidates ... for a judicial office ... should not ... misrepresent their identities, qualifications, present positions, or other facts. (Emphasis added.)

In addition, such conduct is inconsistent with the holding of this Commission in Opinion No. 167 (April 24, 1992) wherein it was held:

... the individual seeking election is in fact a judge and, accordingly, may properly refer to himself as such in political advertising so long as the judicial position which he currently holds is clearly specified therein and such advertisements are not otherwise misleading. (Emphasis added.)

Measured by these standards, the issue posed must be answered in the negative.

The Commission reminds all candidates, including incumbent judges, of the Applicability provisions of Canon 7(C) and urges full and immediate compliance with the requirements of this opinion.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B), 7(C). Cross reference to other relevant opinions for review: #55, #90, #120, #131, #167, #212.]

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NOTE: Former Canon 7(B)(1)(c) has been withdrawn, and replaced by Canon 7(B)(1)(c), which states that judicial candidates "shall not use or participate in the publication of a false statement of fact concerning themselves or their candidacies, or concerning any opposing candidate or candidacy, with knowledge of the statement's falsity or with reckless disregard for the statement's truth or falsity." Subject to this qualification, the Opinion below still stands under the current Canon.

An opinion is requested on the propriety of the following political conduct:

Is it appropriate for a candidate for Judge of the Probate Court to use the designation "Judge" in political advertising if in fact the candidate does not presently hold a judicial position?

Canon 7(B)(1)(c) provides in pertinent part:

Candidates ... for a judicial office ... should not ... misrepresent their identities, qualifications, present positions, or other facts. (Emphasis added.)

In addition, such conduct is inconsistent with the holding of this Commission in Opinion No. 167 (April 24, 1992) wherein it was held:

... the individual seeking election is in fact a judge and, accordingly, may properly refer to himself as such in political advertising so long as the judicial position which he currently holds is clearly specified therein and such advertisements are not otherwise misleading. (Emphasis added.)

Measured by these standards, the issue posed must be answered in the negative.

The Commission reminds all candidates, including incumbent judges, of the Applicability provisions of Canon 7(C) and urges full and immediate compliance with the requirements of this opinion.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B). Cross reference to other relevant opinions for review: #60, #82, #110, #150, #167, #207, #211.]

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WITHDRAWN: This Opinion is superseded by current Canon 7(B)(1)(b), which expressly allows a judicial candidate to publicly state his or her personal views on disputed issues, see Republican Party of Minnesota v. White, 536 U. S. 765 (2002), but prohibits judicial candidates from making statements that "commit the candidate with respect to issues likely to come before the court." Canon 7(B)(1)(b).

Further, this Opinion is further superseded by current Canon 7(B)(1)(c), which states that judicial candidates "shall not use or participate in the publication of a false statement of fact concerning themselves or their candidacies, or concerning any opposing candidate or candidacy, with knowledge of the statement's falsity or with reckless disregard for the statement's truth or falsity", see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

The Commission has followed with concern the recent media coverage and public comments concerning the propriety and content of certain television advertising currently being used by a candidate for judicial office in a contested election for the Court of Appeals of Georgia. Although the exact script is not available to the Commission, the ad in question can generally be described as follows:

As the ad begins, a written court opinion is superimposed over a vacant court bench. An unseen announcer says, "A man who repeatedly sexually assaulted his 4 year-old son, confessed to those crimes -- twice --and was convicted." Next, an official picture of the incumbent judge, in his robe, is shown, and the announcer continues, "But Judge (incumbent) overturned the jury's verdict and reversed those convictions -- on a technicality." The candidate himself then appears and says, "People who commit crimes against innocent children should be convicted and serve their entire sentences. Isn't it time our judges protected us from criminals instead of protecting criminals from justice?"

Such ad fails to disclose that the decision which is the subject of the ad was by a 7-2 majority of the Court; that cases, especially those on appeal, are frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal of this decision by the State. Furthermore, the candidate's statement appears to prejudge legal issues which may well come before him for decision should he be elected; and finally, the obvious intent of the ad is to focus the attention of an unknowing voting public not on the qualifications of a judicial candidate, but rather on one of the most controversial issues of the day - child molestation.

As thus viewed, this ad falls far short of the dignity appropriate to any judicial office; is incompatible with the longstanding ethical precepts recognized by judicial conduct organizations nationwide; and requires the issuance and dissemination of this advisory opinion by the Commission on its own motion as authorized by Rule 4.

Although the Commission concluded in Opinion No. 207 (May 2, 1996) that "fair and truthful criticism of an opponent is not prohibited by Canon 7(B)(1)(c)" such holding is plainly limited by the requirement that such criticism "not be of such a nature as to bring the candidate's own impartiality or that of the judiciary into question." In addition, Opinion No. 207 specifically cites and emphasizes the holding of Opinion No. 82 (May 1, 1986) wherein the Commission unequivocally stated:

... it is always inappropriate for a judicial officer or candidate to address or answer questions which are intended, or will have the effect of committing him with respect to questions which may come before him as a judge, and thereby deprive him of the impartiality with which it is necessary for him to perform his judicial duties. (Emphasis added.)

The holding of Opinion No. 82 is but a restatement of Canon 7(B)(1)(c), which provides, in pertinent part, that:

Candidates ... for a judicial office ... filled by ... public election between competing candidates ... should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce their views on disputed legal or political issues; or misrepresent their identities, qualifications, present positions, or other facts. (Emphasis added.)

Finally, subparagraph (a) of the same Canon requires all candidates for judicial office to "maintain the dignity appropriate to judicial office."

Measured by these standards, it is the opinion of this Commission that the use of the television ad in question in its present form exceeds the permissible limits of Opinion No. 207; is inappropriate; and tends to bring the judiciary into disrepute.

Unfortunately, and regrettably, neither Canon 7 nor the Rules of the Commission authorizes the Commission to enjoin, prohibit or otherwise restrain campaign conduct which is deemed to be inappropriate. However, in this election season, the Commission deems it appropriate to once again remind all candidates for judicial office that the Applicability Section of Canon 7 subjects a successful candidate, whether or not an incumbent, to judicial discipline for his or her campaign conduct and an unsuccessful candidate, who is a lawyer, to appropriate discipline by the State Bar.

In sum, neither Opinion No. 207 nor any other provision of the Code permits a contested judicial election in this State to be conducted as if it were a race for some other political office in which no ethical restraints are mandated, and the intent of this Opinion is to forewarn all candidates that any such conduct will be closely scrutinized and appropriately sanctioned when necessary.

To that end, and in view of the fast approaching election, the Commission directs that copies of this Opinion be immediately transmitted by facsimile and by U.S. Mail to each of the candidates involved in the election giving rise to this Opinion, as well as to appropriate media outlets with the request that such outlets prominently publicize the same at the earliest practicable date.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B). Cross reference to other relevant opinions for review: #60, #82, #110, #150, #207.]

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An opinion is requested on the propriety of the following political conduct:

May a candidate for judicial office use the word "Conservative" in political advertisements?

Campaign conduct in judicial elections is governed by Canon 7(B). Subsection (1)(c) of this Canon prohibits candidates from making pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office; from announcing their views on disputed legal or political issues; or from misrepresenting their identities, qualifications, present positions or other facts.

The Code contains no other provisions or restrictions relevant to the question posed. Under somewhat similar circumstances, the Commission, in Opinion No. 90 (October 24, 1990), concluded that it was appropriate and permissible for candidates for a non-partisan judicial office to have in their political literature information concerning their political party affiliation and previous offices held in partisan organizations so long as such information is not used to urge the candidate's qualifications and election by reason of party affiliation.

Measured by these standards, it would appear that the mere use of the term "Conservative" in a political advertisement would not be inappropriate. Accordingly, the issue posed in your letter must be answered in the affirmative.

[Pertinent Code of Judicial Conduct provisions: Canons 7(B). Cross reference to other relevant opinions for review: #82, #90, #131, #167, #2B.]

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WITHDRAWN: This Opinion is withdrawn to the extent that it conflicts with current Canon 7(B)(2), which allows judicial candidates to personally solicit campaign contributions and publicly stated support, see Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

An attorney who is a candidate for Judge of the Superior Court requests an opinion on the propriety of wearing a "badge" stating that he is a candidate while he is in the local courthouse and/or trying cases.

This is an issue of first impression in this state and is obviously governed by Canon 7 of the Code of Judicial Conduct. In an effort to prevent, insofar as constitutionally permissible, judicial elections in this state from being conducted as if they were a race for some other political office in which no ethical restraints are mandated, the Supreme Court has recently ordered extensive amendments to Canon 7. Among the amended provisions is the mandatory requirement of Canon 7(B)(1)(a) that candidates shall maintain the dignity appropriate to judicial office. The amended Commentary to this section notes that this requirement is necessarily cast in general terms and gives illustrative examples of campaign conduct previously found to fall below the standard enunciated by this section.

Although the specific conduct posed by this request is not among the illustrative examples cited in the amended Commentary, it is nevertheless the opinion of this Commission that the wearing of a candidate "badge" by a lawyer while in the local courthouse and/or while trying cases constitutes conduct falling below the standard enunciated by our Supreme Court and hence is inappropriate. Otherwise, an incumbent judge could appropriately wear such a "badge" on his or her robe during any session of court and/or announce his or her candidacy every time a panel of jurors is assembled. The inappropriateness of such conduct is self-evident and, accordingly, will not be sanctioned by this Commission.

In addition, the proposed conduct could also constitute a possible violation of Canon 7(B)(2) and Opinion No. 205 (March 22, 1996) forbidding a candidate from personally soliciting publicly stated support.

For all these reasons, and in an effort to further the obvious intent of our Supreme Court to restore a time-honored sense of dignity to judicial elections in this state, the Commission has no hesitation in forbidding the campaign conduct here proposed.

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WITHDRAWN: This Opinion is superseded by current Canon 7(B)(1)(b), which expressly allows a judicial candidate to publicly state his or her personal views on disputed issues, see Republican Party of Minnesota v. White, 536 U.S. 765 (2002), but prohibits judicial candidates from making statements that "commit the candidate with respect to issues likely to come before the court." Canon 7(B)(1)(b).

A sitting appellate court judge requests an opinion on the propriety of candidates for judicial positions responding to candidate questionnaires involving substantive issues of law submitted by political action committees and other similar organizations. The questionnaires which accompany this request seek the candidate's views on issues which may come before the courts and responses to such questions could conceivably be construed as committing the candidate with respect to such issues.

As originally noted in Opinion No. 82 (May 1, 1996) and as reaffirmed by the 1998 Amendments to Canon 7, it is always inappropriate for a judicial officer or candidate to address or answer questions which are intended or will have the effect of committing such individuals with respect to issues which are likely to come before the court.

While any judicial officer or candidate may appropriately discuss the procedures of the court in general terms and/or his or her qualifications, as well as those of any opponent, both the Code of Judicial Conduct and numerous formal advisory opinions prohibit responses to questionnaires such as those submitted in this instance.

Accordingly, the issue posed must be answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canon 7(B)(1)(b).]

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WITHDRAWN: This Opinion has been overruled by Opinion No. 233.

An appointed part-time Municipal Court Judge requests an opinion on the propriety of campaigning for and if elected, simultaneously serving in the Georgia General Assembly.

Insofar as the issues raised by this request may involve the interpretation and application of applicable statutes such issues are for the courts and beyond the jurisdiction of this Commission. Insofar as the issues involve the Judicial Canons, they are addressed as follows:

Canon 7(A)(3) of the original Georgia Code of Judicial Conduct promulgated in 1973 expressly required a judge to resign upon becoming a candidate for a non-judicial office in either a party primary or a general election.

Relying upon this provision, the Commission, in Opinion No. 26 (June 8, 1978) concluded that irrespective of a 1976 Constitutional provision expressly permitting a Justice of the Peace to serve as a member of the General Assembly, it was nevertheless inappropriate for such a judicial officer to simultaneously serve in the General Assembly. Subsequently, however, the Supreme Court held 7(A)(3) to be inapplicable because the Constitution expressly allowed such service: In Re: Inquiry Concerning a Judge, 250 Ga. 796 (1983).

This "resign to run" requirement was eliminated when the Code of Judicial Conduct was amended in 1984 and has not reappeared in any subsequent amendments. Consequently, except insofar as the 1983 Constitutional "resign to run" requirement set forth in Article II, Section 2, Paragraph 5 might be applicable, there currently appears to be no legal or ethical prohibition against dual service as a part-time Judge and a Member of the General Assembly. Nevertheless, such a conclusion does not eliminate other potential ethical issues which are addressed below.

While unopposed in the Primary election, the requesting Judge recognizes that during campaigning for the general election he will need to seek campaign contributions, answer surveys, and express opinions on such matters as crime, law enforcement, juveniles and other ancillary matters that may come before the Court. He further recognizes the potential conflict of interest and has indicated that he will seek a leave of absence from his judgeship following the Primary election.

As noted by the Reporter for the Model Code of Judicial Conduct (after which the 1973 Georgia Code of Conduct was patterned), the 7(A)(3) "resign to run" provision was originally felt necessary to avoid: (i) the appearance of impropriety; (ii) trading on the prestige of judicial office; and (iii) embroiling the court in political controversy.

Although since deleted from our Code, it is nevertheless the opinion of this Commission that the same reasons, together with longstanding separation of power principles requiring that the judiciary function independently of the executive and legislative branches, demand absolute and complete separation of the dual positions here involved during the campaign. Hence, the legislative candidate should at no time be publicly identified as a Judge in campaign literature, newspaper advertisements or media appearances; should not preside or otherwise serve as Judge during the course of the campaign; and should not otherwise use the power and prestige of the judicial office to further the candidacy for the General Assembly.

In sum, there appears to be no express ethical prohibition against dual service as a part-time Judge and a member of the General Assembly. However in campaigning for the legislative position, the prestige of the judicial position must never be misused, traded upon, nor allowed to become embroiled in political controversy.

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