Three Core Values

Three Core Values

Rule 4.2(A)(1) requires a judicial candidate to act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary, and it marks each of the three words with an asterisk, the Model Rules’ flag for a defined term.¹ The duty is only as precise as that vocabulary, and imprecision is costly: when a conduct commission finds misconduct, the available sanctions run from private reprimand through public reprimand and suspension to removal from office.² A candidate or an exam taker who treats the three words as loose synonyms for fairness cannot say what kind of damage a campaign act has done, and naming the damage is what a good answer must do.

Each value names a different way that an election can injure a court, and one question separates them:

• Independence asks whether someone outside the case, such as a donor, a party organization, an official, or the public, has acquired a claim on how the judge will decide.
• Impartiality asks whether the judge leans for or against particular parties.
• Integrity asks whether the judge is honest and of sound character.

The values overlap in practice because the paths by which a decision bends run into one another. A judge who depends on outside backers has a reason to favor them, so a loss of independence tends to become a loss of impartiality. A judge who then rules for a backer in return for support has also dealt dishonestly, and the same conduct implicates integrity.

Because one transaction can reach all three values, an exam answer should name the value the conduct most directly compromises, note the others it also touches, and then turn to the specific campaign rule that governs the conduct. When no specific rule fits, the umbrella duty in Rule 4.2(A)(1), which applies at all times, remains available to support the conclusion. Independence comes first below because an election creates the risk of outside pressure more directly than any other.

Independence

Independence, the first value that Rule 4.2(A)(1) lists, means a judge’s freedom from extralegal, external influence on decisions.³ The qualifier “extralegal” does the work. Statutes, precedent, and the evidence in the record are proper influences on a ruling, and independence has no quarrel with them. It excludes pressure from outside the law and the record: a donor who wants a favorable ruling, a party organization that wants its priorities honored, an official who wants a particular result, a crowd that wants a verdict. By keeping those forces from taking the law’s place, independence promotes the rule of law.⁴

An election concentrates the risk because it turns outside forces from background conditions into needs. A candidate needs money to reach voters, endorsements from organizations that supply volunteers and credibility, and votes from a public with views about how cases should come out. Many of the people who supply those things may later stand in the candidate’s courtroom, since most donors are lawyers and litigants who may appear before the judge they support.⁵ Every gift thus carries a possible claim, spoken or not, on how the recipient will rule, and a candidate who depends on the gift has a reason to honor that claim. The pressure exists even when no one voices it, because the candidate knows who paid and who will appear.

The Montana Supreme Court, in Western Tradition Partnership, quoted commentary to Montana’s version of Rule 4.2 that states the standard in two halves. Because a judge must decide every case on the facts and the law, the judge must, “to the greatest extent possible, be free and appear to be free from political influence and political pressure.”⁶ Public confidence in the independence and impartiality of the judiciary, the commentary adds, “is eroded if judges or judicial candidates are perceived to be subject to political influence.”⁷ The appearance half exists because the public cannot see a judge’s motives. A voter who learns that a candidate took a large check from a frequent litigant has only the outward facts to judge by, and those facts invite suspicion even when the later ruling is correct on the law.

An exam stem usually asks whether a candidate’s acceptance of support compromised independence. Support alone cannot answer the question, because every candidate must seek it. The useful inquiry is whether the supporter acquired a claim on how the candidate would decide cases.

Both candidates took an organization’s backing, so the backing cannot decide the result. The first candidate gave the committee a claim on how cases would be decided, and independence was compromised when the arrangement was made, before any case was assigned. No ruling has to be affected for the duty to be breached, because Rule 4.2(A)(1) tests the candidate’s conduct, and the same arrangement would leave the public with good reason to doubt that the candidate’s rulings belong to the law. Later sections take up the specific prohibitions that overlap with this conduct, but the umbrella duty already condemns it.

Independence also connects directly to the value taught next. The two are corollaries: independence minimizes external influences on a judge’s decisions, impartiality minimizes the influence of the judge’s internal biases, and the two are intertwined because a dependent judge who gives way to outside influence becomes partial to the people relied upon.⁸ The party committee in the example shows the chain at work. Once its leaders can approve the candidate’s positions, the candidate has a reason to favor the committee’s interests. On an exam, the label should therefore follow the source of the pressure: pressure from donors, organizations, officials, or the public is an independence problem, a candidate’s own leaning toward a party is an impartiality problem, and a single fact pattern may present one after the other.

Impartiality

Impartiality means the absence of bias for or against the parties to a case, and in a judge it works by minimizing the influence of the judge’s internal biases on decisions.¹⁰ That places it on the other side of the judge’s mind from independence. Independence deals with pressure that arrives from outside, such as donors and party officials, while impartiality deals with leanings the judge carries inside, such as prejudice toward a kind of litigant or attachment to one side. A candidate can lose impartiality with no outside pressure at all, simply by announcing a preference for one side of cases not yet filed.

The value matters to a litigant because a party’s right to due process of law demands an impartial judge.¹¹ A hearing is worth something only if the person deciding it has not settled the question in advance. A judge who has already leaned against landlords has decided part of every eviction case before the first witness speaks, and the harm falls on the process itself, whichever way a given case comes out.

The word has more than one meaning, and Republican Party of Minnesota v. White shows how much turns on the choice. As the Montana Supreme Court describes the case in Western Tradition Partnership, White held that Minnesota’s “announce clause,” a canon barring candidates for judicial election from announcing their views on disputed legal and political issues, violated the First Amendment.¹² Because impartiality was among the interests offered to defend the clause, the Court asked what the word could mean and considered three possibilities:

• The lack of bias for or against either party to the proceeding, which guarantees a party that the judge will apply the law to that party just as the judge applies it to any other party.¹³
• The lack of preconception in favor of or against a particular legal view.¹⁴
• Open-mindedness.¹⁵

None of the three saved the clause. On the first meaning, the Court did not say expressly whether equal treatment of parties is a compelling state interest, but it held that a restriction on speech for or against particular issues did not serve that interest.¹⁶ The logic is easy to follow: a candidate’s opinion about how a statute should be read tells a future litigant nothing about whether the law will be applied to that litigant as it is applied to everyone else. The second meaning gave the clause no better footing, and the Court “likewise” concluded that open-mindedness was an implausible basis for it.¹⁷ The Court added that the notion that the special context of electioneering justifies limiting speech on disputed issues “sets our First Amendment jurisprudence on its head,” because debate on candidates’ qualifications “is at the core of our electoral process and of the First Amendment freedoms, not at the edges.”¹⁸

For a candidate, the lesson is that impartiality toward parties lies at the center of the value, because that meaning protects each litigant’s claim to equal treatment. A rule aimed at that meaning targets commitments about parties, while a ban on stating views about legal issues misses it. The line returns in the later section on pledges and promises.

Partiality can also grow out of the donor relationship. In Williams-Yulee v. Florida Bar, the Court explained that States may regulate judicial elections differently from political ones, because politicians are expected to respond to their supporters’ preferences while a judge is to follow no supporter’s preferences and give no special consideration to a campaign donor.¹⁹ Most donors are lawyers and litigants who may appear before the judge they support, so the mere possibility that a decision was motivated by a wish to repay a contribution can undermine public confidence even when the judge treats everyone fairly.²⁰ A donor who is also a party is exactly the kind of litigant toward whom a judge must hold no lean. A later section takes up Williams-Yulee in full.

Exam answers tend to fail in one of two opposite ways. The first treats any statement of a view on a legal issue as a breach of impartiality, which overlooks that White struck down a ban on announcing such views. The second reasons that, because views were protected, a promise to favor or punish a class of litigants must be protected too. White’s reasoning turned on the lack of any link between issue speech and equal treatment of parties, and it does not reach a commitment about parties, which bears on that treatment directly. The question to ask of any campaign statement is whether it commits the candidate for or against parties.

Integrity

Integrity sits in the middle of the three values that Rule 4.2(A)(1) requires a candidate’s conduct to honor, and the rule marks it with an asterisk as a defined term, just as it does independence and impartiality.²² The Model Code defines the word as a cluster of attributes: “probity, fairness, honesty, uprightness, and soundness of character.”²³ No single term in the cluster carries the whole meaning. Probity means proven honesty, fairness means evenhandedness, and the rest describe a person whose character can be trusted with power. What the attributes share is a focus on the judge as a person, since they ask whether the judge’s motives are what they appear to be. Independence looks at pressure arriving from outside the case and impartiality looks at leanings toward parties, while integrity looks at the judge’s own honesty and character.

The value is easiest to see in a judge who lacks it. A corrupt judge who sells decisions to the highest bidder does not uphold the law.²⁴ The law promises that a case comes out according to statutes, precedent, and the evidence, and a sale replaces those with price. The harm occurs whether the buyer is a litigant or a stranger, and whether or not the purchased ruling happens to match what the law required, because the judge has treated the power to decide as private property. Integrity therefore supports the rule of law at the most basic level, before any question of outside pressure or bias arises.

Integrity also underlies the other two values, because corruption produces both bias and dependence. A dishonest judge whose mind is closed by corrupt motives is partial to the outcomes that serve private interests, and a dishonest judge who bends the law for benefactors is dependent on them.²⁵ The discussion of independence traced a chain from dependence to partiality, and this chain begins one step earlier. A judge willing to trade rulings for private gain has already chosen to listen to a buyer, and the dependence and the partiality are the visible results. A party’s right to due process also demands an honest judge, and the public’s confidence in the judiciary depends on seeing judges as honest arbiters of the law.²⁶

The Supreme Court has gone further and treated judicial integrity as a state interest of the highest order. The Montana Supreme Court’s opinion in Western Tradition Partnership quotes the passage: “The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”²⁷ The reasoning runs in links. Courts announce principles of law while resolving disputes, and the power to do that rests on the respect people give to the judgments. That respect depends on a belief that the court acted honestly, so a court whose honesty is in doubt loses the ability to function. The Montana court also recognized, citing Caperton v. A.T. Massey Coal Co., that state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law.”²⁸ A state’s interest in judicial integrity is the justification it invokes to defend its campaign rules, and the final section of this chapter shows that justification at work in the leading First Amendment case.

The vacation example is useful because it isolates integrity. A student who labels every corrupt act an independence problem will miss it, since independence requires an outside force with a claim on the judge’s decisions, and none appears in the facts. The more reliable method is to ask where the fault lies. Pressure from a donor, an organization, or the public is an independence problem; a lean toward or against parties is an impartiality problem; and dishonesty or a defect of character is an integrity problem, which may be the only value at stake. The specific prohibition on using campaign contributions for private benefit returns in the section on prohibited conduct, and here it serves only to illustrate what a loss of integrity looks like.