Concept
Mandatory Candidate Duties
Judicial candidates: independence and impartiality in elections
Mandatory Candidate Duties
Rule 4.2(A) provides that a judicial candidate in a partisan, nonpartisan, or retention public election “shall” do each of four things, and the word leaves no discretion: a candidate who omits one has violated the rule, whatever the reason.1 The first is the umbrella duty from earlier in this chapter, to act at all times consistently with the independence, integrity, and impartiality of the judiciary.2 That duty sets a standard against which conduct is measured. The other three assign tasks.
A campaign is a collective enterprise. Committees raise and spend money, volunteers hand out literature, consultants draft copy, and supporters speak in the candidate’s name. If the Code reached only what the candidate personally said and did, a candidate could profit from a committee’s misleading flyer or a supporter’s improper pledge and then say the act belonged to someone else. The three task duties close that gap from three directions, and the test for breach differs in each:
| Duty | What the candidate must do | What decides breach |
|---|---|---|
| Rule 4.2(A)(2) | Comply with the jurisdiction’s election, campaign, and fund-raising laws | Whether the campaign obeyed the law |
| Rule 4.2(A)(3) | Review and approve campaign statements and materials before they are disseminated | Whether approval came first, whatever the content |
| Rule 4.2(A)(4) | Take reasonable measures against supporters’ prohibited activity | Whether the candidate’s measures were reasonable |
Stems built on these duties usually show a candidate who did nothing improper personally while someone else did, or while something went out unchecked. Ask what the rule required of the candidate, then ask whether the candidate did it.
Complying With Election Laws
Rule 4.2(A)(2) requires a judicial candidate to comply with all applicable election, election campaign, and election campaign fund-raising laws and regulations of the candidate’s jurisdiction.3 The rule names three layers of law: statutes governing the election itself, those governing how a campaign is run, and those governing how it raises money. The Code writes none of them. Each comes from the jurisdiction’s own legislature or regulators, and (A)(2) makes compliance an ethics duty, so a breach of the statute is also a breach of the Code. That separates this duty from the umbrella standard in (A)(1): (A)(2) states a concrete obligation whose content lives elsewhere, where (A)(1) states a value to be weighed against conduct.
Borrowing local law is the only workable design. Jurisdictions differ on how much one donor may give, how often a campaign must report, and which forms it must file. A national rule that fixed a dollar figure would be wrong in most places, while a rule that points to each jurisdiction’s own law is right in all of them. The Rule therefore supplies the duty, and the local statute supplies the details. A stem that raises this issue will tell you what the jurisdiction requires, and your work is to compare the campaign’s conduct with that stated law. The word applicable limits the duty to laws that actually cover this candidate and this office.
The Code repeats what the statutes already demand for two reasons. A candidate who treats election law as optional while asking to apply the law to everyone else gives voters an early look at how the candidate would regard it on the bench. And fund-raising statutes work as safeguards: a per-donor cap limits how much any one contributor can give, and a disclosure report shows the public who gave and how much. A campaign that ignores either one removes a safeguard of the judge’s independence, whether or not a donor ever asks for a favor.
Williams-Yulee v. Florida Bar shows what such laws look like in one state. Florida statutes bar a contributor from giving more than $1,000 per election to a trial court candidate, or more than $3,000 per retention election to a Supreme Court justice, and they require campaign committee treasurers to file periodic reports disclosing the names of contributors and the amount of each contribution.4 A ceiling on each gift and a duty to report are the requirements a campaign most easily misses, because both demand bookkeeping that continues through the race. The figures are Florida’s. Another state may set different ceilings and reporting schedules, and (A)(2) adopts whatever the candidate’s own jurisdiction requires.
That case also shows where (A)(2) stops. The Bar charged Yulee under a rule that requires judicial candidates to comply with Florida’s Code of Judicial Conduct, including the ban on personal solicitation of campaign funds in Canon 7C(1). She admitted that she had signed and sent a fundraising letter and argued that the First Amendment protects a candidate’s right to solicit campaign funds. A referee recommended a public reprimand and costs of $1,860.5 The solicitation ban is a rule of the Code itself, not an election statute, so it falls outside what (A)(2) incorporates. A candidate can obey every statute and still violate a Code restriction. Those restrictions come up in later sections, and the First Amendment challenge is the subject of the final section of this page.
Enforcement depends on the candidate’s status. A lawyer-candidate such as Yulee answers to the bar. A sitting judge answers to the state’s judicial discipline process, which can open a formal proceeding that ends in a hearing, a decision, and, if the commission finds misconduct, a proposed sanction ranging from private reprimand through public reprimand and suspension to removal from office.6
Each requirement stands alone. A campaign can report every dollar honestly and still break the cap, or stay under the cap and still fail to file, and neither compliance cures the other. Nor does it help to say the treasurer kept the books, because the Rule speaks to the candidate. Nothing turns on whether the donor got anything in return either. Subsection (A)(2) asks whether the campaign obeyed the law, and a promise of favorable treatment would raise a separate problem under the independence and impartiality duty in (A)(1).
Students err in two directions. Some treat a finance violation as a matter for the election board alone and clear the candidate of any ethics breach, forgetting that the Rule makes compliance the candidate’s own duty. Others assume a clean finance report ends the analysis, forgetting that the umbrella duty and the Code’s other restrictions still apply to the same campaign.
Approving Campaign Materials
Rule 4.2(A)(3) requires the candidate to “review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.4, before their dissemination.”8 Where (A)(1) states a value, this duty prescribes a specific act and fixes the moment for it. Three features of the text deserve separate attention. The scope is broad: all campaign statements and materials, so a flyer, a newspaper advertisement, and a prepared statement to the press all qualify. The source is either the candidate or the authorized committee, so even a candidate who writes the copy personally must still review and approve the final content. The timing is before dissemination, so the duty is met or breached at the moment the material leaves the campaign. The committee is the one authorized by Rule 4.4, taken up later in this chapter, and supporters who act independently fall under the next duty.
The duty exists because a campaign speaks through many voices and the Code binds one of them. A treasurer, a consultant who drafts copy, and a volunteer who designs a flyer are not judges, and the Code’s prohibitions do not reach them. If the candidate’s obligation covered only the candidate’s own speeches, the later rules against false statements and improper pledges could be defeated by routing the message through staff: the committee would say what the candidate may not say, and the candidate would answer that the words were never seen. Approval before release closes that route by placing responsibility for every message on the one person who answers to the Code and can change what goes out.
The requirement does two jobs. It fixes accountability, because once the candidate approves a piece of material the candidate owns it, and “someone else wrote it” is no excuse. It also supplies a chance to correct. A flyer already in thousands of mailboxes cannot be recalled, and a retraction reaches fewer readers than the original did, so review before dissemination is the only moment when an error can be prevented and not merely regretted. That is why the rule writes the timing into its text.
The breach was complete when the flyer went out unseen, and it belongs to Voss even though the manager made the error. Whether the misstatement also violates the separate ban on false or misleading statements depends on what that ban requires, which a later section teaches. The approval duty does not wait for that analysis, because it attaches to the process of release and does not depend on how the content turns out.
Reyes’s case turns on two features. The first is order: her approval came before the mailing and covered the version that was mailed. The second is the standard, because the rule asks whether the candidate reviewed and does not ask whether the content was accurate. An entirely accurate postcard released without the candidate’s prior review breaches (A)(3), and approval a few days after distribution comes too late, since the chance to prevent an error is gone. The usual exam error is to clear a candidate because the content proved true, or because the candidate eventually read it and liked it.
Policing Supporters
Rule 4.2(A)(4) requires a candidate to “take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.4, that the candidate is prohibited from doing by Rule 4.1.”10 The earlier duties reach the candidate’s own compliance with election law and the campaign’s own statements and materials. This one reaches people. A volunteer or friend is not a judge, and the Code’s prohibitions bind the candidate, so the Code tells the candidate to keep others from doing in the candidate’s name what the candidate may not do personally.
The text has four parts, and an answer should keep them apart. The actor is someone other than the candidate: a volunteer, a friend, a group of supporters, even a committee member who strays past what the committee may do. The activity is undertaken on the candidate’s behalf. Rule 4.1, whose prohibitions are covered later in this chapter, forbids the candidate to do it. And Rule 4.4 does not describe it. When all four are present, the candidate must take reasonable measures to ensure that the other person does not carry it out.
The duty exists because without it every prohibition could be sidestepped by delegation. A candidate barred from promising to rule a certain way could let a friend make the promise, and a candidate barred from knowingly false statements could let a volunteer circulate one. Voters would hear the same message, the candidate would collect the benefit, and no one would answer for it. Rule 4.2(A)(4) closes that route by making the candidate answerable for supervising the campaign, so a supporter’s prohibited act can become the candidate’s own breach when the candidate took no reasonable measures to stop it.
The phrase “other than those described in Rule 4.4” guards against the opposite error, which is to think a candidate must prevent anyone else from doing anything the candidate could not do personally. Some activities are closed to the candidate and open to a committee, and fund-raising is the leading example. Florida’s canon draws the line: a candidate “shall not personally solicit campaign funds,” but “may establish committees of responsible persons to secure and manage the expenditure of funds,” and those committees “are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.”11 Most states draw the line in the same place, and the American Bar Association reports that 30 of the 39 states that elect trial or appellate judges have adopted restrictions similar to Florida’s.12 In Williams-Yulee the candidate herself signed and sent the fundraising letter, and the Bar charged her for it.13 A committee of responsible persons sending similar requests would have stood on the permitted side of the canon. Under (A)(4), then, a committee’s solicitation of funds is something the candidate need not prevent, and the section on campaign committees sets the conditions for it. The carve-out is narrow. It covers only what Rule 4.4 describes, so a committee member who strays beyond it, for instance by making a pledge Rule 4.1 forbids, is a supporter like any other.
The standard is reasonable measures, so the candidate does not insure every supporter’s conduct. Volunteers have their own judgment, and no candidate can hear every conversation or read every post before it appears. A rule demanding perfect control would punish a candidate for acts the candidate did everything feasible to prevent. The rule instead asks what a candidate can do, such as telling supporters what is forbidden and acting when something improper surfaces. The text lists no required measures, so weigh what the candidate did before any violation and what the candidate did on learning of one.
This duty also differs from the approval duty. Rule 4.2(A)(3) covers statements and materials produced by the candidate or the authorized committee and requires the candidate to review and approve their content before release.14 Rule 4.2(A)(4) covers other persons and requires only reasonable measures. A flyer the committee produces needs the candidate’s prior approval, while a flyer a volunteer produces independently calls for reasonable measures to prevent it.
Two errors recur. Some students hold the candidate liable for every supporter’s conduct, ignoring the reasonable-measures standard. Others require the candidate to stop a committee’s fund-raising, ignoring the Rule 4.4 carve-out. In Marchetti’s scene the silence after learning of the mailer decides the result, and in Okafor’s scene the instructions and the prompt disavowal do.