Judicial Campaign Conduct Committee
ad misrepresents Cunningham record
A television commercial from Court of Appeals Judge Rick Johnson misrepresents the actions of Circuit Judge Bill Cunningham, his opponent for the 1st District seat on the state Supreme Court, the Kentucky Judicial Campaign Conduct Committee said today.
nonpartisan, unofficial committee also found that Cunningham should
not have made a statement indicating how he might rule on cases involving
The Committee acted in response to two complaints from Johnson.
The first complaint, on Oct. 20, alleged that Cunningham repeatedly misrepresented his position on making statements about disputed political and social issues. The second complaint, on Oct. 26, alleged that Cunningham had falsely accused him of misleading the voters in a TV commercial.
The committee concluded that Johnson is misleading voters with the TV commercial and newspaper ads that contain the TV script.
“The advertisement misrepresents what actually occurred and misrepresents the actions taken by Judge Cunningham in his judicial capacity,” the Committee said in a statement to the candidates.
The ads say, “Circuit Judge Bill Cunningham tried to make six rapists eligible for parole. One of them had been out on parole for only 12 hours when he raped a 14-year-old and made her mother watch.”
committee said, “The advertisement improperly suggests or implies
that Judge Cunningham wanted to release the individuals involved from
their prison terms. The advertisement further implies that one of the
individuals actually committed a rape after Judge Cunningham had let
him out of prison. The facts do not support these suggestions.”
The Supreme Court reversed Cunningham on procedural grounds. The case involved six rapists who had been sentenced to life without parole, a sentence that was abolished many years ago. Cunningham granted a petition for habeas corpus, but the Supreme Court said the inmates’ request for reduced sentences should have been sought under another provision of law.
Also at issue is a letter that Cunningham wrote to then-Gov. Paul Patton in 2003, asking that the sentences of the rapists be reduced to “straight life.” Cunningham provided a copy of the letter to the Committee, at its request.
Johnson alleged that Cunningham made false and misleading statements about the letter to The Paducah Sun, which on Oct. 26 quoted Cunningham as saying that he did not ask then-Gov. Paul Patton to parole the inmates, but asked for “a modification to what was no longer a legal sentence.”
said that is not true, because “The Supreme Court . . . reversed
Judge Cunningham on this very point and held the rapists’ sentences
to be legal.”
Cunningham’s phrase “no longer a legal sentence” is open to interpretation. If he meant that the inmates are illegally incarcerated, that is not correct, because they were sentenced under the law in effect at the time. If he meant that such a sentence is no longer legal for current crimes, that is correct.
The Paducah Sun reported that none of the six rapists were from Western Kentucky and that none of the rapes were committed in the region. Cunningham handled the cases because the state penitentiary is in his judicial circuit.
The Committee’s main concern is that Johnson’s advertising oversimplifies and misrepresents serious procedural and constitutional issues.
“The advertisement demonstrates the danger inherent in using difficult legal cases involving technical and sophisticated statutory and constitutional issues to hold judges responsible for results which a judge may believe are mandated by the law,” the Committee said.
“Thus, the Committee believes that Judge Cunningham did not "try to make six rapists eligible for parole, as the advertisement states. In fact, he was ruling on a petition by these six individuals . . . seeking a change in each of the sentences previously imposed on them. A judge is obligated to rule on such petitions in a manner he or she believes the law requires. That appears to be what Judge Cunningham did. We do not believe that a candidate for judicial office should suggest to the public that he or she is free to disregard the law in issuing rulings where he or she may not agree with the law. ”
Judge Johnson objected to our conclusions and asked that Judge Cunningham's letter be posted on our Web site. Click here to read it.
Johnson’s first complaint to the Committee contrasted one of Cunningham’s TV ads with statements Cunningham made in August.
In the ad, Cunningham says, “Judicial candidates should not make statements of public issues because it creates an agenda. And once they have the agenda, then they become legislating judges. I do not believe judges should legislate. They should interpret the law.”
Johnson’s complaint said “Judge Cunningham's statements are misleading, deceptive, and falsely state his actual campaign conduct, because on Aug. 7, during their joint appearance at to the Christian County Democratic Women’s Club, Cunningham “told the group that told that he agreed with me that abortion should be limited to protecting the life of the mother and that marriage is between one man and one woman.”
The Committee was unable to locate a recording of the meeting, but Cunningham acknowledged in a letter to the Committee that “I did state my personal position on abortion,” in response to a question. “In retrospect, I shouldn’t have. . . . It was a lapse in judgment in my part, and I regret it.”
Committee agrees that Cunningham should not have made the remark, because
it may have been interpreted as a statement on how he might rule on
cases involving the issue.
The Committee has no authority to enforce the canons, which are enforced by the state Judicial Conduct Commission, but tries to discourage campaigning that erodes the dignity, integrity and independence of the judiciary.
“We are simply exercising our First Amendment right to state our opinion, as private citizens and as a private committee, on the issues raised by these complaints,” the Committee told the candidates. “We have no authority to go beyond that, and we do not intend to do so.”
finds judge’s ad misrepresents opponent’s record
A television commercial from Court of Appeals Judge David Barber “seriously and inappropriately misrepresents” two opinions that challenger Janet Stumbo issued when she was on the state Supreme Court, the Kentucky Judicial Campaign Conduct Committee said today.
The nonpartisan, unofficial committee also found that Stumbo kept outdated information on her Web site that may have given voters the mistaken impression that Barber had not paid his delinquent taxes.
The group said the issue of Barber’s TV ad is more serious, and is the kind of advertising the Committee was created to discourage and prevent.
“The Committee believes that the ad seriously and inappropriately misrepresents her actions as a justice on the Supreme Court, and that this is the type of advertisement in a judicial campaign that disserves the public,” the Committee said in a statement to the candidates.
ad says, “When a mother was convicted of letting her lover abuse
her baby, the Supreme Court said she had a duty to protect her child.
Janet Stumbo said no such duty existed. “
The ad goes on to say, “In another case, Janet Stumbo’s opinion was, there’s no criminal liability for killing an unborn child.”
In that case, Stumbo’s opinion was that the state legislature intended cases of fetal homicide to be prosecuted under a law that it passed in 2004. That is not the same as believing there is no criminal liability for killing a fetus.
Stumbo’s campaign filed a complaint with the Committee about the ad. In his response, Barber acknowledged that the second case was complicated and “would take a day-long seminar to explain.”
“That is part of our concern,” the Committee told the candidates. “The advertisement takes a case involving statutory interpretation and issues of which statutes could or should be used to prosecute a particular alleged criminal action and simplifies Justice Stumbo's opinion in a manner the Committee finds to be unfair and misleading. The same holds true” for the other criminal case mentioned in the commercial, the Committee said.
Barber argued to the Committee that the same advertising message, used by Stumbo’s opponent in 2004, was the subject of a complaint that the state Judicial Conduct Commission dismissed.
Commission is an official body that enforces the Canons of Judicial
Conduct, which also apply to judicial candidates. The Committee is a
private group with no official authority.
The Committee also acted on a complaint from Barber, alleging that Stumbo continued to represent some of Barber’s property-tax bills as delinquent after he had paid them in July, using the amount owed as a fund-raising device.
A Stumbo fund-raising letter dated Sept. 11 referred to “Barber’s delinquent property-tax bill” and an attached newspaper article, dated July 5, headlined “Barber owes property taxes.”
The Committee’s investigation also revealed that Stumbo’s campaign Web site, www.JanetStumbo.com, continued to refer to the tax bills as delinquent until Oct. 19. The site used a bright red “PAST DUE” and linked to images of the bills without noting that they had been paid.
In a letter on Oct. 17, the Committee told Stumbo that she had a responsibility to make clear that the taxes had been paid, “or at least refrain from representations that make it appear that the taxes are still past due.”
Oct. 20, the Web site had been revised to say that Barber’s current
tax delinquency was $154.54, much less than the $19,166.09 he owed in
July. The Committee informed Barber of its letter and the change in
the Web site, and he paid the remaining tax bill that day.
Committee said it believes that the Web site should have been updated
promptly, each time the facts changed. The Canons of Judicial Conduct
say that judges and candidates “shall not misrepresent any candidate's
identity, qualifications, present position, or other facts.”
“Records of candidates are fair game in campaigns,” the Committee says on its Web site, http://www.loubar.org/jccc/kjccchome.htm. “But the records of judges, and of lawyers who want to be judges, can be easy to distort or misrepresent. Judges make hundreds of decisions during a term of office, and it’s inevitable that some will be unpopular -- or turn out to be, or seem, mistaken. The easiest way to campaign against someone who has served on the bench is to pick out a few decisions and focus attention on them, or even on only one decision. And a lawyer’s legal career cannot always be defined by one case or a set of cases.”
Committee cautions judicial candidates against making statements that erode independence, integrity and dignity of the court system
(Statement released Oct. 11, 2006) The Kentucky New Era of Hopkinsville performed a service of statewide importance last week by highlighting a key principle in the many Kentucky judicial elections on the ballot next month.
The principle is that unlike candidates running for political office, those running to be a judge must demonstrate to voters their readiness to be impartial -- rather than to court votes by announcing their opinion on hot-button issues.
New Era reporter Joe Parrino’s story described the application of this principle to the race for the state Supreme Court in the 1st District, between Circuit Judge Bill Cunningham and Court of Appeals Judge Rick Johnson.
The article noted Johnson’s speech at the Fancy Farm Picnic in August, in which he said “I oppose abortion except in case of serious endangerment to the life of the mother,” noted that he is endorsed by Right to Life, and said he supports display of the Ten Commandments, “the right to pray freely at school,” the right to bear arms, the death penalty, marriage limited to one man and one woman, and property rights, disagreeing with last year’s condemnation ruling of the U.S. Supreme Court. “My judicial record is conservative, consistent with West Kentucky values,” Johnson concluded. “Our values shape our judgment. And people want judges who share their values. ”
The New Era story quoted Johnson as saying in an interview that the only “off-limits” topics in judicial campaigns are those in current court cases. Johnson says he told the newspaper that off-limits subjects also include cases and controversies likely to come before the court.
We think Judge Johnson’s view of judicial campaigns, as evidenced by his statements, is off the mark, and not in keeping with the campaign agreement that we offered to candidates this summer – an agreement that he signed.
Among other things, those signing the document agreed to abide by the Canons of Judicial Conduct, which say a judicial candidate “shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court.”
We believe that many voters who hear judicial candidates take sides about disputed public issues would reasonably expect those candidates to rule on the same side if some facet of the issue came before them. Likewise, candidates who make such declarations may feel an obligation to rule that way, especially if they have received a lobbying group’s endorsement.
Judge Johnson may have a First Amendment right to make such statements, under recent federal court decisions that struck down former canons of judicial campaign conduct in Kentucky and other states. But while candidates now enjoy broader rights to comment, they should couple that with the responsibility to uphold the independence and integrity of the judicial system, in order to maintain respect for it. Judicial candidates who publicly state their views on disputed issues inevitably create the impression that such views would affect how they would rule from the bench, and that runs counter to the principle of judicial independence.
Judge Cunningham did not sign our agreement, saying it offended him, but his view of judicial campaigns is closer to ours. He told the New Era that the only statements appropriate to a judicial campaign should be about the candidate’s credibility and character and readiness to be fair and impartial. He said at Fancy Farm, “I am not a Republican, I am not a Democrat, I am not a liberal, I am not a conservative. I am a judge.” Johnson says Cunningham could not have gotten an A-plus rating from the NRA without answering their questionnaire, mentioned at the bottom of the story.
Judges are supposed to be impartial and independent, and uphold the integrity and dignity of the judiciary. Those are the principles that the Kentucky Judicial Campaign Conduct Committee – a bipartisan group of attorneys, former judges, educators and civic leaders – was formed to protect.
Judges may share “your values,” but when it comes to deciding disputed issues, they must demonstrate that they can step back and judge an issue on its own merits. We recommend that candidates and voters bear in mind that unlike all other public officials whom we elect, we do not elect judges to “represent” us. We elect them to make decisions impartially and independently, based on the facts and the law.
In this expression of opinion about campaign tactics, the Committee is in no way endorsing any candidate. Voters have many considerations other than campaign tactics as they prepare to choose their judges on Nov. 7. However, we believe that tactics are among the things voters should consider, because of the possible effects those tactics might have on candidates’ service if they are elected.
Statement on 5th District Supreme Court race
(Released Sept. 20, 2006) The Kentucky Judicial Campaign Conduct Committee has investigated allegations that a candidate for the Kentucky Supreme Court conducted a poll that was designed primarily to disseminate unfavorable information about his opponent, or at least indicated that his campaign might use against his opponent personal information that is arguably irrelevant to the choice voters must make in the November election.
From the available evidence, the Committee has concluded that the poll taken for the campaign of Justice John Roach was not a “push poll,” one designed more to attack the opponent than to elicit a representative sampling of opinion among voters in the district. The allegation that it was a “push poll” was made in news articles by a campaign worker for Fayette Circuit Judge Mary Noble, the other candidate in the race.
Soon after the original story was published, Committee Chairman Spencer Noe asked Justice Roach for a copy of the poll. Roach initially declined, saying release of the document would telegraph to the opposition what his whole campaign was about. After further discussion, Roach said he might be willing to share the poll questions with some members of the Committee. Noe added that he told Roach that the Committee might make some comment in any event.
At its Aug. 19 meeting, the Committee endorsed the request for information, authorized Noe to appoint a subcommittee to handle the matter and make recommendations to the full Committee, and directed Noe to also ask the Roach campaign for those parts of the pollster’s memorandum saying how and when the poll was conducted and how many respondents were interviewed.
A subcommittee of Noe, Vice Chair Tony Wilhoit and Jon Fleischaker, treasurer of the Committee, met with Roach on Aug. 28, examined the poll questionnaire and spoke with his pollster. The subcommittee agreed not to divulge any contents of the poll, with the exception of what is disclosed below, because of Roach’s legitimate concern about revealing his strategy.
The subcommittee unanimously voted to dismiss the matter. It concluded, and the Committee agrees based on the available evidence, that the poll appears to have been a typical “baseline” survey used to obtain information for developing campaign strategy. The evidence shows that it was not a “push” poll, because it had 62 questions, taking approximately 20 minutes, and included both positive and negative information about each candidate. “Push” polls are typically brief and dominated by information adverse to the opposition.
One question contained a description of Roach listing eight facts, and another contained a description of Noble with seven facts. Each description was followed by a question about factors the respondent considered important in voting. These questions were in the first part of the poll. Approximately 25 questions later, as part of three questions regarding possible campaign issues, there was a question about the University of Louisville policy for health benefits for same-sex partners. It is clear that there was no effort and no intent to connect the biographical information contained in the question relating to Judge Noble in the first part of the poll to the question about the University of Louisville policy which appeared some 25 questions later.
Noble’s consultant, Dea Riley, said she had received as many as 20 e-mails about the poll. Noe asked her to provide all such e-mails, and those she had sent on the topic, and she said she would. She only sent three, all received by her, and only one made any reference to the questions. The writer of that e-mail attempted to repeat the questions in the Roach poll, but was only able to give 19 questions, and the phrasing of some differed from the phrasing in the questionnaire. The other two e-mails made no reference to any particular question in the poll.
KJCCC hosted six educational meetings
Kentucky voters have a historic opportunity to put their stamp on their judiciary this year, because every judgeship will be on the ballot, except two on the state Supreme Court, and the candidates are running under new rules that allow more freewheeling campaigns. But, the public deserves a dignified judiciary, and a dignified judiciary requires dignified campaigning.
The Kentucky Code of Judicial Conduct requires candidates to “maintain the dignity appropriate to judicial office,” and the Kentucky Judicial Campaign Conduct Committee believes judicial candidates should aspire to a level of campaign conduct that reflects their respect for the dignity and integrity of judicial office and the independence of the judiciary.
The Committee is an independent, non-profit, non-partisan group of citizens from all over Kentucky - lawyers and non-lawyers, former judges, educators, journalists and civic leaders. It does not endorse candidates. The committee was created to educate the public about the important differences between judicial campaigns and those for partisan political office, and about the importance of high standards in conducting judicial campaigns; to help candidates campaign in an ethical and dignified manner; to monitor advertising to detect and deter improper campaigning; and investigate complaints about unfair campaign tactics and make public statements about such tactics.
To help prepare candidates and voters for the fall elections, the Committee held educational meetings for judicial candidates and the public. These meetings not only pointed the way to clean campaigns, but also let the candidates become familiar with the inner workings and procedures of the committee, which has no official authority but hopes to act as a watchdog on campaigns. To read the Committee's regulations and procedures, click here.
All judicial candidates in Kentucky were invited to the meetings at six locations across the state. The public was also invited. The meetings were held Aug. 21 in Somerset, Aug. 24 in Prestonburg, Aug. 28 in Covington, Aug. 29 in Lexington, Aug. 31 in Louisville and Sept. 7 in Paducah.
More than one-third of Kentucky judicial candidates with opposition in this year's elections sign pledge on campaign conduct
More than a third of the candidates with opposition in this year’s Kentucky judicial elections have signed a pledge to disavow false or misleading advertising and accusations that “impugn the integrity of the judicial system, the integrity of a candidate, or erode public trust and confidence in the independence and impartiality of the judiciary.”
The pledge also includes adherence to campaign rules in the Kentucky Code of Judicial Conduct, which applies to all judicial candidates. It is being offered by the Kentucky Judicial Campaign Conduct Committee Inc., a non-profit, non-partisan group that has no official authority but was formed last year to help protect the integrity of the judiciary during judicial elections.
The agreement’s preface says, “The actions of candidates for judicial office affect the integrity and independence of our judicial system, reflecting on both the Kentucky judicial system and the Commonwealth of Kentucky. Therefore, it is important that judicial election campaigns be conducted in such a way that enhances the candidate’s reputation, brings credit to the individual, and reflects the dignity and integrity of judicial office and the independence of the judiciary.”
The Kentucky Code of Judicial Conduct sets minimum standards for campaigns, but the Committee believes judicial candidates should aspire to a level of campaign conduct that reflects their respect for the dignity and integrity of judicial office and the independence of the judiciary.
The agreement states, “In keeping with these principles and objectives and in order to promote public confidence in both attorneys and judges, I hereby agree to conduct my campaign in accordance with the Kentucky Code of Judicial Conduct. I further agree to disavow advertisements that use false or misleading information and/or accusations to impugn the integrity of the judicial system, the integrity of a candidate, or erode public trust and confidence in the independence and impartiality of the judiciary.”
All candidates running for judicial seats in Kentucky this year are being asked to sign the campaign agreement. In races for the Kentucky Supreme Court, three out of the nine opposed candidates signed the pledge. Nine of the twenty opposed candidates running for the Court of Appeals signed it. In races for the circuit and district courts, 26 percent (24 out of 92) and 33 percent (21 out of 64), respectively, signed the agreement. Overall, it has been signed by 34 percent of all opposed judicial candidates in Kentucky.
A list of those who have signed the agreement is attached. Candidates may sign the agreement at any time, including those who file for nine new judgeships, for which the filing deadline is 4 p.m. on Aug. 8, 2006. Candidates may fax signed agreements to 859-323-3168 to the attention of Al Cross. For more information contact Chair and President Spencer Noe at 859-225-8700.
CANDIDATES SIGNING THE AGREEMENT
Rick Johnson, Symsonia - 1st District Supreme Court
Ann O’Malley Shake, Louisville - 4th District Supreme Court
William McAnulty, Louisville - 4th District Supreme Court
* denotes a candidate eliminated in the May primary
Last updated Oct. 11, 2006