Do the political-activity restrictions of Canon 7 of the Code of Judicial Conduct apply to a lawyer who is a candidate for judicial appointment under a merit-selection plan?

Plain-English summary

The Committee was asked whether the political-contribution restrictions in Canon 7, Section A of the Code of Judicial Conduct apply to candidates for judicial appointment under Alaska's merit-selection system. It had requested an opinion from the American Bar Association, which issued ABA Informal Opinion 85-1513 holding that Canon 7, Section A applies to a candidate for judicial office by gubernatorial appointment under a merit-selection plan, so the candidate may not participate in political fundraising events, with the restriction attaching when the candidate submits the initial application to the Alaska Judicial Council. The Committee adopted that informal opinion and added that Canon 7, Section B(1) likewise applies from the filing of the initial application.

The opinion explained why the restriction reaches appointment candidates. Reading Section A(1) literally, the limits apply to "a candidate for election to judicial office," and a literal reading might exclude an appointment applicant; but that would be inconsistent with the purpose of Canon 7, which is to ensure judicial impartiality and its appearance by limiting the political conduct of judges and judicial candidates. Both Model Rule 8.2(b) and former Model Code DR 8-103 require a lawyer-candidate for judicial office to comply with Canon 7. The opinion found, from the structure of Sections A and B and the Reporter's Notes of Professor E. Wayne Thode, that the drafters used "election" to include merit-selection processes, and that the dictionary meaning of "election" (the formal choosing of a person for an office) supports that reading. It noted the contrary result would let an applicant make political contributions to the very Governor who would select the judge, which the drafters did not intend, and that the conclusion is consistent with ABA Formal Opinion 312 interpreting the predecessor Canons of Judicial Ethics.

On timing, the opinion concluded the lawyer-applicant becomes subject to Section A(1) when the applicant submits the name to the Judicial Council, rather than later when the name is submitted to the Governor. It reasoned that imposing the restrictions uniformly from the application stage best preserves judicial independence and its appearance, lets all applicants accept the limits knowingly and voluntarily, and avoids the embarrassment of an applicant having to refuse political involvement after the fact.

Currency note

This opinion was issued in 1985 and adopts an ABA informal opinion of that year, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility together with the then-new Model Rules) and before later revisions to the Code of Judicial Conduct. The Code of Judicial Conduct has since been substantially revised, and Canon 7's numbering and content may have changed. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct and Rules of Professional Conduct before relying on any specific canon or requirement mentioned here.

Common questions

Q: Do Canon 7's political-activity limits apply to a lawyer seeking a judgeship by appointment, not election?

A: The opinion concluded they do; Canon 7, Section A applies to a candidate for judicial office by gubernatorial appointment under a merit-selection plan, so the candidate may not take part in political fundraising.

Q: When do the restrictions begin to apply to a judicial applicant?

A: The opinion concluded the restrictions of Section A(1), and of Section B(1), attach when the applicant submits the initial application to the Alaska Judicial Council.

Q: Could a judicial applicant attend a political party fundraising event?

A: The opinion concluded the applicant could not; Canon 7, Section A prohibits participation in political fundraising events by a candidate for judicial appointment.

Background and rules framework

The opinion applied Canon 7 of the Code of Judicial Conduct, which limits the political activity of judges and candidates for judicial office, as incorporated for lawyers through Model Rule 8.2(b) and former Model Code DR 8-103 (a lawyer-candidate for judicial office must comply with Canon 7). It adopted ABA Informal Opinion 85-1513 and drew on ABA Formal Opinion 312 and the Reporter's Notes to the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct and Judicial Conduct:

• Model Rule 8.2(b) / former Model Code DR 8-103 (lawyer-candidate must comply with the Code of Judicial Conduct)
• Code of Judicial Conduct Canon 7, Sections A and B (political activity of judges and candidates)

Other opinions and authorities cited:

• ABA Informal Opinion 85-1513 (adopted by this opinion): Canon 7 applies to merit-selection appointment candidates
• ABA Formal Opinion 312: predecessor Canons 28 and 30 applied to candidates for appointment
• ABA Informal Opinion 1468: purpose of the Code of Judicial Conduct
• Thode, Reporter's Notes to Code of Judicial Conduct (1973)

See also

• Alaska Ethics Op. 88-5: Judge Letter Supporting Judicial Retention
• Alaska Ethics Op. 2006-4: Former Judge Campaign Materials

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/85-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 85-1
Applicability of Canon 7 of Code of Judicial Conduct to Candidates for
Judicial Appointment.
The Ethics Committee has been asked whether the political contribution
proscriptions set forth in Canon 7, Section A, of the Code of Judicial Conduct,
apply to candidates for judicial appointment under the Alaskan system used
for the appointment of state judges. In response to this request, the Alaska Bar
Association Ethics Committee requested an opinion from the American Bar
Association. On April 27, 1985, the American Bar Association issued Informal
Opinion No. 85-1513.
American Bar Association Informal Opinion 85-1513 holds that the provisions
of Canon 7, Section A, of the Code of Judicial Conduct, apply to a candidate for
judicial office by gubernatorial appointment pursuant to a merit selection plan.
Accordingly, candidates for appointment may not participate in political fundraising events. The opinion further holds that the candidate becomes subject to
the provisions of Canon 7, Section A(1) when the candidate submits an initial
application for the judicial position to the Alaska Judicial Council.
American Bar Association Informal Opinion 85-1513 is adopted as the opinion
of the Alaska Bar Association Ethics Committee. Additionally, Canon 7, Section
B(1) is also applicable to candidates for judicial appointment, from the time of
the filing of the initial application with the Alaska Judicial Council.
The political activity proscriptions of Section A of Canon 7 of the Code of
Judicial Conduct apply to candidates for judicial appointment under a merit
selection plan.
When a state court judicial vacancy occurs in the State of X, the State Judicial
Council advertises the vacancy and solicits applications from qualified
attorneys. The State Judicial Council then circulates the names of the
candidates on a poll to the members of the Bar Association and some law
enforcement agencies, soliciting comments and ratings on the candidates'
qualifications for the vacancy sought. The Council also seeks comments from
the public. After the poll is completed and comments received, the Judicial
Council then publishes the result of the poll, interviews all candidates, and
submits the names of some of the candidates to the Governor of the State for
potential appointment. The Governor then makes the final appointment to the
judicial vacancy. There is no requirement for legislative or other confirmation of
the Governor's appointment. The name of the new judge is then placed on the
ballot at the first general election held more than three years after the
appointment. The question asked is whether the judge should be retained in
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office. Thereafter, each judge is subject to approval or rejection in a like
manner at times which vary depending upon the level of court involved.
This opinion is based on the Model Rules of Professional Conduct and to the
extent indicated the former Model Code of Professional Responsibility of the
American Bar Association. The laws, court rules, regulations, codes of
professional responsibility and opinions promulgated in the individual
jurisdictions are controlling.
A lawyer in State X applied for an initial appointment to a then-existing judicial
vacancy. The lawyer was solicited to attend a "Governor's Birthday Party"
which, the Committee is informed, is in effect a political party fund-raising
event. The lawyer asks whether Canon 7 of the Code of Judicial Conduct
prohibits attendance.
Canon 7, subsection A(1) provides in part: "A judge or a candidate for election
to judicial office should not . . . (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)."
Subsection A(2) provides: "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 re-election, identify
himself as a member of a political party, and contribute to a political party or
organization."
The inquiring lawyer is not a judge. If the lawyer is not, in the words of
subsection A(1)(c), a candidate for election to a judicial office, the prohibition
against contributions and ticket purchases for political party dinners, as well
as the prohibitions against serving as an officer of a political organization,
speaking for candidates and publicly endorsing candidates, would not apply to
any lawyer-applicant for appointment to judicial office. That interpretation
would, however, be inconsistent with the underlying purpose of Canon 7 which
is to ensure both judicial impartiality and the appearance of judicial
impartiality by placing limitations upon the political conduct of judges and
candidates for judicial office.
This Committee stated in its Informal Opinion 1468: "The essential thrust of
the Code of Judicial Conduct is to disfavor activities of judges which would
tend to reduce public confidence in the integrity and impartiality of the
judiciary. Accordingly, judges are asked to accept restrictions on their public
conduct that do not apply to other citizens." To ensure that the conduct of
lawyers who are candidates for judicial office is equally free from questionable
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political overtones, both the ABA Model Rules of Professional Conduct (Rule
8.2(b)) and the former ABA Model Code of Professional Responsibility (DR 8103) require a lawyer-candidate for judicial office to comply with Canon 7 of the
Code of Judicial Conduct.
This purpose would not be given full effect if the provisions of Section A of
Canon 7 were inapplicable to candidates under merit selection plans. For
example, if Section A were not applicable, the candidate could make direct
political contributions to the Governor who will select the successful candidate
as judge. An examination of the language of Sections A and B persuades the
Committee that this was not the intent of the drafters of the Code of Judicial
Conduct.
Section A governs "Conduct in General" by distinguishing between a "candidate
for election to judicial office" in subsection A(1) and a candidate for a judicial
"office filled by public election between competing candidates" in subsection
A(2), the drafters clearly recognized that "election" includes a selection process
other than a "public election between competing candidates." Similarly, in
Section B which governs "Campaign Conduct," specifically subsection B(1),
there is reference to judicial office "filled either by public election between
competing candidates or on the basis of a merit system election" (emphasis
supplied). That section not only distinguishes between the two systems but
uses "election" specifically to refer to the merit selection process. Subsection
B(2) further makes this distinction; in recognition of the political realities
involved in public elections between competing candidates, it permits certain
activities by candidates in such elections not permitted candidates in merit
system elections.
This interpretation of "election" is consistent with the following statement of
Professor E. Wayne Thode, Reporter to the ABA Special Committee on
Standards of Judicial Conduct, which was responsible for the current revision
of the Code of Judicial Conduct:
Section A of Canon 7 prescribes general standards of political conduct for all
judges and all candidates for judicial office [emphasis supplied]. Section B,
applying to public elections between competing candidates and to merit system
elections, sets the campaign standards for judges and challengers who are running
for elective judicial office. (endnote 1)
This interpretation of "election" to include merit selection is consistent with its
accepted meaning. While in its most common usage, "election" normally implies
a choosing by an electorate, the Oxford English Dictionary defines it simply as:
"the action of choosing . . ." and lists as the first meaning: "1. The formal
choosing of a person for an office, dignity or position of any kind: usually by
the votes of a constituent body" (emphasis supplied).
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This conclusion is consistent with Formal Opinion 312 which interpreted
Canons 28 and 30 of the Canons of Judicial Ethics in effect prior to the
adoption of the Code of Judicial Conduct in 1972. That Opinion set forth a list
of proscriptions of political activity of judges. It concluded that all of those
proscriptions applied to candidates for appointment as well as election to
judicial office.
Accordingly, the Committee's opinion is that the provisions of Canon 7, Section
A do apply to a candidate for judicial office by gubernatorial appointment
pursuant to a merit selection plan and prohibit participation by the applicant
in political fund raising events.
A difficult question remains: whether the lawyer-applicant becomes subject to
the provisions of Section A(1) when his/her name is submitted to the Governor
of the State or when the lawyer submits his/her name to the Judicial Council
for consideration. The Committee believes that the latter conclusion represents
sounder policy. If the underlying purpose of Canon 7 is to ensure the
preservation of the independence and impartiality of the judiciary, and the
appearance of the same, then it seems to us important to impose upon all
those who serve or would serve in judicial office these restrictions upon their
political activities. And if the restrictions are uniformly applied, then all lawyerapplicants will accept them knowingly and voluntarily, understanding that
others similarly situated will be similarly bound. Likewise, by making this
position clear to persons in political office, the discomfort, even the
embarrassment, attendant upon the refusal of lawyer-applicants to become
politically involved should be avoided.
Adopted by the Alaska Bar Association Ethics Committee on August 8, 1985.
Approved By The Board Of Governors On August 23, 1985
Endnotes:

1. Thode, E. Wayne, Reporter's Notes to Code of Judicial Conduct, 95 (1973).

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