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Judicial Election Campaigns—the Santa Clara County Way

Posted By Dianne L. Sweeney, Tuesday, April 1, 2014
Updated: Wednesday, April 23, 2014

by Dianne L. Sweeney
Pillsbury Winthrop Shaw Pittman LLP
2014 SCCBA President 

and Chris Burdick
SCCBA CEO and General Counsel

In many counties across the country, contested judicial elections have become something of a political spectacle laden with negative campaigning.  But what is the impact of mudslinging and smear campaigns on a branch of government dedicated to ensuring justice for all?  How does the public both watch the smear campaign and then, after the election, trust that the judiciary is independent and fair?

Is it even possible for contested judicial election campaigns to be conducted with the dignity and integrity of the judicial office to which one of the candidates will be elected?

In Santa Clara County, we think the answer is a loud and resounding “yes” – yes, judicial campaigns can be conducted in a judicious manner and, yes, voters can make informed decisions based on a campaign conducted with dignity, fairness and integrity.

As the Santa Clara County Bar Association (“SCCBA”) continues to examine our strategic plan for the next 100 years, we are also taking stock of those areas where we are leading the pack.  Nearly 40 years ago, the SCCBA under the leadership of then President Alden Danner (now the Hon. Alden Danner, ret.) drafted and adopted a Judicial Campaign Code of Ethics and a Fair Judicial Election Practices Commission to evaluate the campaign practices and conduct of candidates so each campaign would be conducted in a dignified manner.  For the last 40 years, our Judicial Campaign Code and Commission have been in effect for every judicial election.

The SCCBA’s Judicial Campaign Code and Commission is the oldest judicial election campaign oversight process in the United States.  This groundbreaking achievement was acknowledged by the National Center for State Courts National Ad Hoc Committee on Judicial Campaign Oversight which singled out the SCCBA’s Code and Commission as a model for other counties and states.

The vision supporting our ongoing campaign oversight process then and now is the same:  the legal profession has a responsibility and vested interest in ensuring that the judiciary is both independent and fair and that those who seek judicial office demonstrate those requisite characteristics during the course of a judicial election.

The Judicial Election Campaign Code of Ethics is an integral part of the SCCBA’s effort to support and encourage dignified judicial campaigns.  The Code provides that:

The purpose of the Judicial Election Campaign Code of Ethics is to promote the discussion of issues and qualifications in fair and open public debate and to encourage candidates to conduct campaigns for judicial office mindful of the honor and dignity of the Judiciary and the legal profession.  As a participant in the election of judges through the endorsement of candidates for judicial office, the Santa Clara County Bar Association recognizes that the campaign process lies at the heart of our democracy.  The Santa Clara County Bar Association maintains that campaign conduct reflects a candidate’s integrity and values and only those candidates willing to abide by this Code of Ethics merit … election by the people of Santa Clara County.

The Fair Election Practices Commission “acts as a forum to resolve disputes between candidates over the interpretation of the Standards of Conduct in this Code.  It is prepared to examine the truthfulness and fairness of a candidate’s statements which are alleged to be false or misleading” when requested to do so by one of the candidates.  The Commission is comprised of 12 members and up to 3 alternate members.  The SCCBA President and Superior Court Presiding Judge serve as the Commission’s co-chairs.  Commissioners are appointed by the SCCBA President acting in consultation with the Presiding Judge.  The SCCBA’s Board of Trustees, in turn, reviews and ratifies the appointments.  Generally, the Commission consists of 6 judges (state and federal), 5 attorney-members and 1 non-attorney member.  The alternates are both judges and attorneys.

With rare exception, the Commission conducts itself in confidential session and issues a confidential decision.  The confidential nature of these proceedings supports the Commission’s goal of ensuring that no candidate uses the Commission process for an improper advantage in the public campaign.  The ability of the Commission to act quickly and discretely allows for a prompt course-correction in the event of any improper campaign activities, and a return to the substance of the campaign.

Santa Clara County contested judicial elections may remain unique among many jurisdictions in the country.  The vast majority of our judicial candidates agree to abide by the Judicial Campaign Code and submit their disputes to the Commission for prompt resolution in confidence.  By maintaining campaigns that are worthy of the office of a judge and that mirror the important qualities of a judge, elections in Santa Clara County focus on independence, truthfulness, integrity, dignity and appropriate temperament.

Because of our long-standing dedication to fair elections, we have been able to avoid judicial campaigns that cause the public to question the ability and dedication of the judiciary to promote access to justice for all members of the public.

We salute then-SCCBA President Alden Danner and the trustees who supported him for their foresight and commitment to ensuring that the public retains it confidence in the independence and fairness of the judiciary.  We also thank all current SCCBA members who support our commitment by continuing membership in the SCCBA.

We appreciate your continued support and, as always, we ask that you join us in promoting the great works of the SCCBA by sharing our history, leadership and Code of Professionalism with new lawyers and inviting them to join the SCCBA.  It is only through growing our membership that these efforts can be sustained.

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