218 Kan. 209 (1975) | Cited 5 times | Supreme Court of Kansas | November 8, 1975

This is an original proceeding to inquire into acomplaint against the Honorable Robert M. Baker, Judge of theSixteenth Judicial District, alleging violations of the Code ofJudicial Conduct. This court has jurisdiction under Art. 3, § 15of the Constitution.

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The complaint against Judge Baker involves advertisingmaterials used in his campaign for his present office in 1974, ata time when he was a practicing lawyer holding no judicialoffice. Such campaigns are governed by Canon 7 of the Code ofJudicial Conduct, adopted as Rule No. 601 of this court effectiveJanuary 1, 1974. The Canons were first promulgated in theNovember, 1973, advance sheets (213 Kan. No. 1, pp. vii-xvi) andare now found at 214 Kan. xciv-ciii. The specific provision underwhich the present complaint was brought is 7 B.

"B. Campaign Conduct.

"(1) A candidate . . . for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election: "(a) should maintain the dignity appropriate to judicial office . . .; "(b) should prohibit public officials or employees subject to his direction or control from doing for him what he is prohibited from doing under this Canon; and except to the extent authorized under subsection B (2) or B (3), he should not allow any other person to do for him what he is prohibited from doing under this Canon; "(c) should not make pledges or promise of conduct in office other than the faithful and impartial performance of the duties of the office; or mispresent [sic] his identity, qualifications, present position, or other fact; or announce his views on disputed legal or political issues, except that he may answer allegations directed against his record in office."

In 1974 the Sixteenth Judicial District (Clark, Comanche, Ford,Gray, Kiowa and Meade counties) selected its district judge at apartisan election. Judge Baker was a candidate against theincumbent, the Honorable Ernest M. Vieux, who had held officesince January 10, 1955. When Judge Baker was successful by anarrow margin in the primary election of August 6, 1974, JudgeVieux waged a write-in campaign in the general election inNovember. Judge Baker was again the successful candidate.

The complaint herein was filed with the Commission on JudicialQualifications, a body created by Rule No. 602 of this court toassist it in carrying out its constitutional responsibilities inthe area of judicial discipline. The Commission made apreliminary investigation and then instituted formal proceedingsby serving a Notice, alleging violations in two counts. Count Idealt with the August, 1974, primary election and Count II withthe November, 1974, general election. The Commission held ahearing at which documentary evidence was introduced and bothJudge Baker and Judge Vieux testified. There was little, if any,dispute as to the facts. The Commission filed findings of factand conclusions of law in which it

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     found violations under Count I in six particulars. (No violationswere found under Count II, so we are presently concerned onlywith the primary election.) It recommended, with one memberdissenting, that Judge Baker be publicly censured. The dissenterfound only one violation and recommended private censure. JudgeBaker filed a petition for review by this court.

The charges against Judge Baker can only be understood againstthe background of Judge Vieux's situation prior to and during the1974 campaign. On July 5, 1973, Judge Vieux suffered a heartattack which prevented him from performing any judicial dutiesuntil some time in December. At that time he gradually began toreassume the duties of his office, although on a limited basis.He avoided cases of an emotional nature and those requiring agood deal of judicial time. Judges from other districts wereassigned to the Sixteenth to help carry the caseload.

Before announcing his candidacy for reelection in early spring,and again before filing in late spring, Judge Vieux consultedwith his treating physician. In each instance he was assured thathis convalescence was progressing satisfactorily and he wasencouraged to make the race.

The six violations of Canon 7 found by the Commission involvedJudge Baker's use of three campaign letters, a radio speech, atelevision commercial and a postcard. We shall examine the firstfive together, leaving the postcard for later discussion.

The letters, mailed to voters in the district in June and Julyof 1974, contained such assertions as: "I am certain that if elected Judge I can and will improve the quality and quantity of work that is presently required in the District Court. "That because of my health and prior experience, it will no longer be necessary to import judges from other districts to help handle the case load of the 16th Judicial District." (Emphasis added.)Further: "I hope to remedy some of the problems now existing. One of the most serious problems is the inconvenience to jurors called to jury duty occasioned by long delays in the presentation of evidence to them. "As your District Judge, I pledge: "1. Jury trials and all other court business shall commence at 9:00 a.m. of a given day. "2. There will be no unnecessary delays or unnecessary recesses merely for the benefit of court officers or lawyers.

"3. Business will be expedited in such a manner as to give full and proper consideration to all matters, and with diligence and dispatch.

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"4. The Court will return to serving the citizens instead of being a convenience to lawyers. "If I am to bring about these reforms, I must first be elected." (Emphasis added.)

The radio speech was in substance a recapitulation of theletters, emphasizing the need to eliminate delay in handlinglawsuits, and pledging Judge Baker's full-time efforts towardthat end. The television spot commercial showed first an emptyjudge's chair in a courtroom and then Judge Baker going up thecourthouse steps. The accompanying sound track consisted of aticking clock and then an announcer saying in part, "Justicedelayed is justice denied! Let's put our Courts> on a full timestatus, Robert Baker will be a full time judge."

In finding that this material violated Canon 7 the Commissiondid not specify which portion of the Canon was violated, but fromthe briefs and oral argument we conclude that the Commission feltit was the part of 7 B (1) (c) which states that a candidate"should not make pledges or promise of conduct in office otherthan the faithful and impartial performance of the duties of theoffice."

We are unable to agree that the material violated thisprohibition, or any other part of the Canon. There is a clearexception for pledges of the "faithful . . . performance of theduties of the office." As we read the material complained of itpledges on behalf of Judge Baker that he will be a full-timejudge, that he will work hard to earn his pay, that he will payprompt attention to the people's business, and that he will beconsiderate of the time of jurors and litigants. These all, wethink, relate to the "faithful performance" of the duties ofjudicial office and are in our opinion proper subjects for ajudicial candidate's pledge.

Former Canon 30 of the old Canons of Judicial Ethics providedin part: "A candidate for judicial position should not make or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce in advance his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen, he will administer his office with bias, partiality or improper discrimination." (198 Kan. at xv.)While the present Canon may appear broader in its prohibitionagainst pledges and promises, its thrust was intended to be thatof former Canon 30. It is those pledges and promises which appeal

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     to prejudices or special interest which are prohibited. On theother hand, a pledge of increased efficiency such as was madehere is aimed at the legitimate interests of the entireelectorate; it is one of those pledges permitted as being for the"faithful performance" of a judge's duties.

In this advertising Judge Baker also suggested that because ofhis good health it would no longer be necessary to import"outside" judges to hear cases in his district. The Commissionpoints out that this is not strictly true — outside judges havebeen necessary since Judge Baker took office. The occasion,however, has been Judge Baker's disqualification in particularcases, arising from his participation in them as a practicingattorney before ascending the bench. We cannot find here anymisrepresentation of substance.

From the emphasis in the Commission's brief, and from some ofthe questions posed at the hearing by members of the Commission,it appears that exception was taken to Judge Baker's repeatedreferences to his pledges as "reforms." By this terminology, itwas felt, Judge Baker was suggesting that the Sixteenth Districtdid not then have a full-time judge who could administer justicewithout delay.

We agree that this was the clear import of all of the campaignmaterial, but we fail to see how this fact alone constitutes aviolation of Canon 7. The election was a partisan one, withcandidate pitted against candidate. A candidate for nonjudicialoffice is free to announce his stand on the issues he must passupon in office, and to pledge his vote on those issues; thejudicial candidate is forbidden to enter this customary campaignarena. Hence, unless the election is to be a pure popularitycontest based on name recognition alone, the only legitimate areafor debate is the relative qualifications of the candidates. Inour view the health, work habits, experience and ability of thecandidates are all matters of legitimate concern to theelectorate who must make the choice.

Justice Burch, although dealing with a libel case, stated thisfundamental proposition: "Under a form of government like our own there must be freedom to canvass in good faith the worth of character and qualifications of candidates for office, whether elective or appointive, and by becoming a candidate, or allowing himself to be the candidate of others, a man tenders as an issue to be tried out publicly before the people or the appointing power his honesty, integrity, and fitness for the office to be filled." (Coleman v. MacLennan, 78 Kan. 711, 723, 98 P. 281.)

Here, Judge Vieux's physical capacity to perform his judicial

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     duties bore directly on his "fitness for the office to befilled." It may seem unfair to attack the record of an incumbentjudge for alleged failings which are beyond his power to preventor rectify. Nevertheless we find nothing in the Canons whichwould immunize a judge from criticism, whether for faultsproduced by ill health or any other cause. As was stated byJustice Brewer long ago, "no judge, and no court, high or low, isbeyond the reach of public and individual criticism." (In rePryor, 18 Kan. 72, 76.) So long as we continue to have partisanelections for judicial office we think a challenger must be freeto criticize an incumbent's record, so long as the criticism isaccurate.

Our examination of the five pieces of campaign literaturedescribed above reveals no substantial inaccuracy, nor does itshow any area in which they exceeded the bounds of campaignactivity permitted under Canon 7. Accordingly as to those fivespecific charges we find no violation.

The same cannot be said, however, for the postcard prepared fordistribution to supporters who were to mail it to friends. Thepostcard said: "I am voting for ROBERT M. BAKER for JUDGE OF THE DISTRICT COURT (Counties of Clark, Comanche, Ford, Gray, Kiowa & Meade) for the following reasons: 1. Robert M. Baker is eminently qualified for the office of Judge of the District Court. As the Judge, there can be no question but that he will always be fair, prompt, courteous and efficient. 2. Because of a heart attack and other physical ailments, it is extremely difficult for the present judge to satisfy the strenuous and rigorous demands of the office. 3. The present judge, at the end of 1974, will be eligible to take a disability retirement and a monthly pension of over $1,270 per month. I hope you and your friends will vote with me to elect ROBERT M. BAKER in the Republican primary on August 6, 1974."

Judge Baker testified that he had calculated the amount of thepension Judge Vieux would purportedly be entitled to, andapproved the preparation of a considerable quantity of thesepostcards. He had made no inquiry as to Judge Vieux's physicalcondition after he returned to the bench, but did rely on hispersonal observation on one occasion in April, 1974, when JudgeVieux appeared to be having difficulty walking. He was notfamiliar with the provisions of K.S.A. 20-2609 that disabilityretirement benefits are available to a judge only if he is"permanently" physically or mentally disabled.

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Judge Vieux testified that he was 61 years old, was notpermanently disabled, had never been told that he was permanentlydisabled, and was in fact entitled to no retirement benefits atthe end of 1974.

The import of the postcard was that Judge Vieux's defeat at thepolls would do him little personal damage — he would still benicely taken care of through his pension. This was not so, and byasserting that it was Judge Baker and his supporters did"misrepresent" a "fact" in violation of Canon 7 B (1) (c).

Judge Baker testified that soon after the postcards weredistributed for mailing he had second thoughts about them. As aresult he personally went about getting them back from thedistributees and succeeded in retrieving all but 163 or 165 ofthem. Those which he retrieved were not used, but weresurrendered at the post office for a partial refund of theprepaid postage. This conduct on Judge Baker's part obviouslymitigates the seriousness of the violation, and is to his credit.It cannot obliterate it, however, because equally obviouslysome of the missing 160-odd postcards were mailed to voters andthereafter came to the attention of Judge Baker's opposition.

If called upon in the first instance to determine theappropriate sanction for this violation we might well haveconcurred in the view of the Commission's dissenter that itshould be private censure. There was in the last analysis but oneviolation, accompanied by mitigating circumstances. We are,however, past the stage where this matter may be resolved inprivate. A violation having been found, the respondent must beand is hereby censured.

It is further ordered that the costs of this proceeding betaxed to the respondent.

MILLER, J., not participating.

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