JUDICIAL ETHICS COMMITTEE OF THE
PENNSYLVANIA CONFERENCE OF STATE TRIAL JUDGES
FREQUENTLY ASKED QUESTIONS REGARDING ELECTIONS
The Supreme Court of Pennsylvania has designated the Judicial Ethics Committee of the Pennsylvania Conference of State Trial Judges (“the Ethics Committee”) as the approved body to render advisory opinions regarding ethical concerns involving persons subject to the Code of Judicial Conduct. The Preamble paragraph  of the Code of Judicial Conduct provides that although the advisory opinions of the Ethics Committee are not binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, the opinions of the Ethics Committee will be taken into account in determining whether discipline should be recommended or imposed. This “rule of reliance” applies only to the specific person who seeks the Ethics Committee’s opinion.
The Ethics Committee renders advisory opinions as to future conduct or to past conduct related to future conduct or continuing conduct. It does not render advisory opinions solely regarding past conduct. It will respond to inquiries by the inquirer about the inquirer; it will not respond to inquiries about a third party.
An opinion by the Ethics Committee is based upon the information provided to it. Therefore, a person seeking advice from the Ethics Committee should submit all material facts relevant to the inquiry. If there is any doubt whether a fact is material, the fact should be disclosed. If a fact is not material, the Committee will not consider it in rendering an opinion.
The Ethics Committee is pleased to present this summary of Frequently Asked Questions regarding elections for judges and judicial candidates. A separate “Retention Election Manual” is available for those judges standing for retention. All judges are bound by the Code of Judicial Conduct. Candidates for judicial office who are not judges are bound by Canon 4 of the Code of Judicial Conduct. See Code of Judicial Conduct, Application .
The following FAQ’s are intended to provide information to interested persons and are not based upon specific facts submitted to the Committee. A judge or declared candidate for judge who desires to benefit from the “rule of reliance” should submit an inquiry to a member of the Committee. A list of the members of the Committee and the zone each serves may be found at Members of Judicial Ethics Committee
FREQUENTLY ASKED QUESTIONS REGARDING ELECTIONS
1. What activities may I engage in prior to filing as a candidate?
You may “test the waters” to gauge whether your campaign would be viable and you may use your own money to seed your campaign if needed for these purposes. You may begin to form your campaign team. However, you may not engage in the acts specified in Code of Judicial Conduct Rule 4.2(B) earlier than immediately after the General Election in the year before the calendar year in which the judicial election will be held. If you intend to have a campaign committee, you must have a chairperson and a treasurer. They may not be the same person.
2. May I contact political officials before I declare my candidacy?
Yes. As above, you may “test the waters”, e.g., you may meet individually and privately to explore the viability of your candidacy, but not for purposes of securing their support or assistance.
3. When may I become a candidate?
Code of Judicial Conduct Rule 4.2(B) permits a judicial candidate to engage in certain acts no earlier than immediately after the General Election in the year before the calendar year in which the judicial election will be held.
4. May I personally circulate my nominating petition?
Yes. A judicial candidate may personally circulate a nominating petition for him or herself.
5. May I circulate or sign other candidates’ nominating petitions?
You may not circulate other candidates’ nominating petitions. However, you may sign the nominating petitions of candidates for the same judicial office for which you are a judicial candidate and candidates for any other elective judicial office appearing on the same ballot.
6. When may I raise money for my campaign?
You may never personally raise money. Your committee may begin to raise money no sooner than immediately after the General Election in the year before the calendar year in which the judicial election will be held. Also see response to question No. 7 below.
7. Is it necessary to form a campaign committee?
If your campaign intends to raise funds from others, then, yes. The primary reason a campaign committee is necessary is to allow the campaign to raise funds from persons other than the candidate. Pennsylvania specifically prohibits judicial candidates from personally soliciting or accepting funds. Code of Judicial Conduct Rule 4.1(A)(7) of the states that: “Except as permitted by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not . . . personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4.” The United States Supreme Court has held that a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds does not violate the First Amendment. Williams-Yulee v. Florida Bar, U.S. Supreme Court No. 13-1499, 575 U.S. ___ (2015).
8. How do I form and organize a campaign committee?
The Code of Judicial Conduct does not set requirements for the organization of a campaign committee. The Pennsylvania Election Code, however, outlines the responsibilities of a campaign committee for any political candidate. The candidate must appoint a chairperson and a treasurer, who may not be the same person. A vacancy in either of these offices prohibits the committee from receiving contributions or making expenditures. (Pennsylvania Election Code § 1622; 25 P.S. § 3242). For this reason, it may be useful to have a vice/assistant chairperson and an assistant treasurer. A political committee may designate a vice chairperson to assume the chairperson's duties and responsibilities in the event of a temporary or permanent vacancy in that office. 4 Pa. Code § 176.5(b)(1). A political committee may also designate an assistant treasurer who has been appointed to receive and disburse monies on behalf of the committee to assume the treasurer's duties and responsibilities in the event of a temporary or permanent vacancy in that office. 4 Pa. Code § 176.5(b)(2).
9. How does my campaign committee get registered?
Campaign committee authorization and registration is handled by the Pennsylvania Department of State Bureau of Commissions, Elections, and Legislation, available at http://www.dos.pa.gov/VotingElections/Pages/default.aspx#.VXnudmPPfkA. Before the committee may receive any contributions, the candidate must authorize the committee, in writing, by filing an Authorization Form, available through the State Bureau of Elections (Pennsylvania Election Code § 1623; 25 P.S. § 3243). Thereafter, upon receipt of contributions in an aggregate amount of $250.00 or more, the Committee is required to file a Registration Statement within twenty days of receipt of such amount. (Election Code § 1624; 25 P.S. § 3244).
10. What authority does my campaign committee have?
Once authorized by the candidate, the committee may make expenditures and receive contributions on behalf of the candidate. (Pennsylvania Election Code § 1622; 25 P.S. § 3242). Additionally, Code of Judicial Conduct Rule 4.4 (A) authorizes the committee to “manage and conduct a campaign for the candidate, including seeking, accepting, and using endorsements from any person or organization, subject to the provisions of this Code.”
11. May I serve as chair or treasurer of my committee?
No. Code of Judicial Conduct Rule 4.1(A)(7) prohibits a judicial candidate from soliciting or accepting campaign funds; such activities are permitted only by the candidate's committee. Because the committee is authorized to engage in activities which are not permitted by the candidate, the candidate may not serve as chair or treasurer of the committee.
12. May a spouse or other family member serve as treasurer of my committee?
While there is no specific prohibition against family members holding the position of treasurer on a campaign committee, there are several important considerations a candidate should note before appointing a family member as treasurer. First, the Supreme Court of Pennsylvania has specifically prohibited court-appointed employees, such as law clerks, court administrators, and court reporters, from participating in partisan political activity. This prohibition is to “maintain not only the independence, integrity and impartiality of the judicial system but also the appearance of these qualities.” In re Dobson, 517 Pa. 19, 28, 534 A.2d 460, 465 (1987). The Supreme Court of Pennsylvania, in In re Cicchetti, 560 Pa. 183, 204, 743 A.2d 431, 442 (2000), has further interpreted this restriction to preclude these employees from participating in judicial retention elections. Therefore, any family member who is a court-appointed employee shall not serve as a campaign committee member. Additionally, a judicial candidate who is considering appointing a spouse or family member as part of his or her election committee should consult Code of Judicial Conduct Rule 4.2 (A)(4), which provides that the candidate “shall …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 this Rule.” While this paragraph does not preclude any specific conduct on the part of a candidate’s family, it is meant as a general guideline, and a judicial candidate seeking to place a family member in a campaign committee position should consider it.
Finally, Code of Judicial Conduct Rule 4.1(A)(6) provides that "a judge or a judicial candidate shall not . . . use or permit the use of campaign contributions for the private benefit of the judge or others." This is especially important to note when a member of the candidate's family holds the position of treasurer.
13. May I personally seek endorsements of my campaign?
Yes. Code of Judicial Conduct Rule 4.2 (B)(5) states: “A candidate for elective judicial office may, unless prohibited by law, and not earlier than immediately after the General Election in the year prior to the calendar year in which a person may become a candidate for such office: . . . seek, accept, or use endorsements from any person or organization.”
14. May my committee seek endorsements of my campaign?
Yes. Code of Judicial Conduct Rule 4.4 (A) authorizes the committee to “manage and conduct a campaign for the candidate, including seeking, accepting, and using endorsements from any person or organization, subject to the provisions of this Code.”
15. May I campaign with other judicial candidates?
A candidate may publicly endorse or speak on behalf of . . . candidates for the same judicial office for which he or she is a judicial candidate, or publicly endorse or speak on behalf of candidates for any other elective judicial office appearing on the same ballot. Code of Judicial Conduct Rule 4.2 (B)(3).
16. May I campaign with non-judicial candidates?
You may appear with non-judicial candidates at a fundraiser or event. However, you may not endorse or campaign on behalf of the non-judicial candidates.
17. May I have a joint committee with other judicial candidates?
No. A judicial candidate may not have a joint committee with another judicial or other candidate.
18. May we file jointly?
No. Each candidate must sign and file the candidate’s campaign finance report and the candidate’s committee must file the committee’s campaign finance report.
19. May I jointly advertise with other judicial candidates?
You may share advertising with another judicial candidate campaigning for the same office. The candidates may have joint television commercials, joint lawn signs and joint palm or slate cards. The expenses of advertising and costs of election may be paid jointly by each judicial candidate’s committee or by the political party.
20. May I jointly advertise with non-judicial candidates?
You may participate in a group photograph or advertising if the candidates are all of the same political party and the political party is sponsoring the photograph. The expenses may be paid by your campaign committee or by the political party. The judicial candidate may not endorse nor speak on behalf of non-judicial candidates. You may not participate in a non-judicial candidate’s campaign advertising if it benefits that candidate and does not involve all of the party’s candidates; to do so could create the appearance of endorsing the non-judicial candidate.
21. May I wear a robe in any of my advertisements?
An incumbent judge may wear a robe in his or her political advertisements.
22. What if I have a question about a specific advertisement?
The Ethics Committee does not comment on specific campaign advertisements. See Formal Opinion 99-1 “Campaign Advertising” at http://ethics.pacourts.us/formal.htm. A candidate is responsible for any ads published by his or her campaign committee. A candidate shall not permit others nor suggest to others that they publish ads which contravene the constraints of the Canons.
23. May I be on a slate card that lists all candidates of my party?
Yes, but see question and answer 20.
24. May I endorse other candidates?
You may not endorse non-judicial candidates but may endorse another judicial candidate who is running for the same office, i.e., same level court and candidates for any other elective judicial office appearing on the same ballot. Code of Judicial Conduct Rule 4.2 (B)(3).
25. May I personally solicit campaign contributions?
No. You may not personally solicit nor accept campaign contributions, but your campaign committee may do so. Code of Judicial Conduct Rule 4.1 (A)(7). See also Williams-Yulee v. Florida Bar, U.S. Supreme Court No. 13-1499, 575 U.S. ___ (2015). Your committee may solicit funds no earlier than immediately after the General Election in the year before the calendar year in which the judicial election will be held. Code of Judicial Conduct Rule 4.4 (B)(2).
26. May I purchase tickets to political events?
You as the candidate or your campaign committee may purchase tickets to a political event or political fundraiser. You may contribute money to your campaign committee to purchase tickets to this type of event.
27. May I hold a fundraiser at my house?
Your campaign committee may hold a fundraiser at your house. You may not personally solicit nor accept campaign funds nor may you solicit individuals to attend the function. However, your campaign committee may engage in these activities.
28. May I accept donations from attorneys?
No, but your campaign committee may. See Code of Judicial Conduct Rule 4.4, and Comment  specifically. In accepting campaign contributions all candidates should keep in mind that if the total amount of the contributions from any one source is disproportionately large, that may provide the basis for a disqualification or recusal motion pursuant to the United States Supreme Court’s analysis in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252 (2009). In addition, if a party, a party's lawyer, or the law firm of a party's lawyer has made a direct or indirect contribution to the judge's campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge's consideration of a case involving the party, the party's lawyer, or the law firm of the party's lawyer, the judge must consider whether recusal would be appropriate. Code of Judicial Conduct Rule 2.11 (A)(4). However, there is a rebuttable presumption that recusal or disqualification is not warranted when a contribution is less than or equal to $250. Code of Judicial Conduct Rule 2.11 (A)(4).
29. What can individuals do to help my campaign?
Individuals may do anything within the election laws to help your campaign – raise money, solicit support, hand out literature, etc., unless they are judges, court employees or Hatch Act employees, subject to the same or similar restrictions as you.
30. May I contribute to the party organization or candidate?
A judicial candidate, including a judge who is a candidate for judicial office, may contribute to a political party or organization or candidate for public office.
31. May I loan money to my campaign?
Yes. You may loan money to your campaign. You must disclose this on your campaign finance report filings.
32. What may I say or not say during my campaign?
A candidate for judicial office may state personal views on legal, political or other issues but may not make pledges or promises other than the faithful and impartial performance of the duties of office. See Comments 7, 8, 9, 10, and 11 to Code of Judicial Conduct Rule 4.1. A candidate also shall not knowingly or with reckless disregard for the truth, make, or permit or encourage others, including, his or her campaign committee, to make any false or misleading statement; or make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court. See also Comments 6, 7, 8, 9 to Code of Judicial Conduct Rule 4.2 and question and answer 33.
33. May I comment on hot button issues such as abortion, gun rights and death penalty issues?
The general principle is that one may make statements or announcements about personal views but may not make pledges or promises directly or inferentially about decision making. Code of Judicial Conduct Rule 2.10(B), 2.11(A)(5). A candidate is prohibited from making commitments with respect to cases, controversies or issues that are likely to come before the Court. You should be aware that if you do announce your views on a particular issue, you may have to disqualify yourself from deciding that issue should it come before you. You should keep in mind that as a judge your duty is to decide cases, and avoid knowingly putting yourself in a position that invites recusal. The test would be whether a reasonable person looking at the totality of the statement would believe that the candidate has specifically undertaken to reach or is committed to a particular end result.
You should also be aware that Code of Judicial Conduct Rule 4.1 (A) (12) and (10) require “a judge or a judicial candidate shall not…in connection with cases, controversies or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office” and “shall not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”
34. May I make any promises or pledges if elected?
A candidate for judicial office may state personal views on legal, political or other issues but may not make pledges or promises other than the faithful and impartial performance of the duties of office. “A judicial candidate may make campaign promises related to judicial organization, administration, and court management, such as a promise to dispose of a backlog of cases, start court sessions on time, or avoid favoritism in appointments and hiring. A candidate may also pledge to take action outside the courtroom, such as working toward an improved jury selection system, or advocating for more funds to improve the physical plant and amenities of the courthouse.” Code of Judicial Conduct Rule 4.1 comment .
35. May I respond to questionnaires?
You may. Code of Judicial Conduct Rule 4.1 comment  provides: “Judicial candidates may receive questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues. [Rule 4.1] Paragraph (A)(12) does not specifically address judicial responses to such inquiries. Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating [Rule 4.1] paragraph (A)(12), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11” see also answers above to questions 32-34.
36. Is there a time limit on ending my campaign once the election is over?
Yes. Pursuant to Code of Judicial Conduct Rule 4.4 (B)(2), candidates’ campaign committees must terminate all fundraising activities in connection with the campaign “no later than the last calendar day of the year in which the judicial election is held.”
37. When are written thank-you letters to contributors permitted?
Your committee may thank your contributors at any time. A judicial officer may sign thank you notes to contributors before and after the election.
38. May I hold a post election fundraiser to retire my debt; and if so may I attend?
A judge’s campaign committee may hold fundraisers after the election; however, the fundraising must end by December 31st of that same year. The fundraising efforts must be commensurate with the campaign debt (the committee is not permitted to raise funds for a future campaign); and while the Code does not prohibit your attendance, as at all times, you are prohibited from personally soliciting contributions. See also question 41.
39. May I keep working as an attorney after the election?
Yes. You may work until you assume office by taking the oath of office. There are specific rules regarding winding down a practice, such as Rule of Professional Conduct 1.17, about which you may inquire of the Ethics Committee.
40. Does a judge have an obligation to have his or her name removed from their former firm’s listing upon taking office?
41. What may I do if my campaign committee has a debt (or a surplus) after the election?
A committee may continue in existence after the election and retain a debt or surplus on its books. The committee would need to continue to have a chair and treasurer who would be required to continue to file reports with the State consistent with the Election Code. If there is a surplus, you are permitted to do any one or more of the following: 1) make a donation to one or more political parties; 2) retain the monies for future campaigns; 3) make a donation to a political action committee depending on whether the transfer will create the appearance of impropriety (Code of Judicial Conduct Rule 1.2); whether the political action committee or an affiliated organization frequently appears before the judge or engages in invidious discrimination (Code of Judicial Conduct Rules 3.1(B) and 3.6); whether the amount of money transferred and the identity of the political action committee could raise issues of recusal or disqualification under Code of Judicial Conduct Rules 2.7 or 2.11(A) if the political action committee or its affiliate would come before the judge or 4) return the excess pro rata to your donors.
Also, see question 38, as to restrictions on the committee’s continued fund raising.