Judicial races and partisanship

Although judicial candidates are always on the ballot as nonpartisans, that doesn’t mean they aren’t Republicans or Democrats.

For years, confused voters have called individual party headquarters to ask which of two judicial candidates in a particular race fit their political philosophy, hoping that would help them pick the better jurist.

Republicans have exploited this better than their counterparts across the aisle, with some activists paying for mailers that list judicial candidates who are registered Republicans (and in many cases, who also paid for the privilege of getting outed on the GOP voter slate card).

There’s rarely a county or state party convention at which the jurists and judicial candidates don’t mingle with the delegates. But the Code of Judicial Conduct paints a bright line that judges and judicial candidates cannot cross when it comes to partisan activity.

Now, efforts to make the judiciary more independent may in fact erode some of those restrictions.

A new rule handed down by the Nevada Supreme Court in September not only alters the filing period and campaign finance rules, but also puts a nice big exception into the code of conduct’s Canon 5.

The canon requires both judges and judicial candidates to “refrain from inappropriate political activities.” As defined, that currently bars fundraising, endorsing, speechifying and joining any partisan organization.

A judge or judicial candidate is not even supposed to tell people what political party he or she belongs to unless responding to a direct question.

That changes Nov. 1.

The court’s ruling of Sept. 19 states a judge or candidate cannot hold a leadership position in a political club. However, “a judge or candidate for judicial office retains the right to participate in the political process as a voter, be a member of a political organization and privately contribute to a candidate or political organization.”

District Judge Mark Denton, attending a meeting of the Paradise Democratic Club last week, said the prohibitions in the canon had been that way for years.

But club President John Ponticello didn’t care for them. For years, he’s been calling out the names of Democratic judges and candidates hoping the partisans will come through for them at the polls.

“A few of our judges were very disturbed by (Canon 5),” Ponticello said.

He raised the issue with attorney John Hunt, now the Clark County Democratic Party chair. He talked to some of the justices of the high court, and voila, now Democrats and Republicans alike can go be joiners.

“It opens the door to the reality that even though they are nonpartisan, they can be affiliated with a party,” Supreme Court spokesman Bill Gang said.

Some might call that a slippery slope. Might a judge someday decide it makes sense to serve as a club’s legal adviser? Or might a candidate feel more emboldened to talk in a partisan manner about certain national issues that are unlikely to come before his or her court?

The most substantial changes in the court’s Sept. 19 ruling deal with the filing period and campaign finance rules for judges.

Judicial candidates will now have a filing period that ends the second week in January, as opposed to the traditional time in May.

Candidates are also prohibited from raising funds for their re-election until the close of the traditional filing period for nonjudicial candidates.

And if a candidate draws no opposition by the end of the judicial filing period, he or she is expressly prohibited from raising any money at all.

These changes were prompted, in part, by last year’s scathing series in the Los Angeles Times about the Nevada judicial system.

The series led to numerous calls for reform, including legislative support for a modified Missouri Plan to abolish the election of judges. Instead, under such a plan jurists would be appointed by a special committee and would sit for retention elections.

The well-publicized travails of freshman District Judge Elizabeth Halverson only added to calls for reform. Appointing judges might, in fact, prevent a Halverson repeat. But I’ve always argued these things are better left to the voters to sort out.

Nevada voters have a good track record of correcting mistakes at the ballot or getting rid of those with questionable ethics.

But as long as we’re still electing these guys, maybe it’s better they don’t go waving the Republican Men’s Club flag in the Veterans Day parade or paying dues to the Red Rock Democratic Club.

Needless to say, it’s ironic that in the high court’s push for greater transparency and more rigorous enforcement against inappropriate political activities, it has also permitted more political activities by the judges and candidates.

Next year will be unique, to say the least.

Judicial candidates are already making the rounds. And because political party conventions come after the new filing period has ended, the best way for them to meet activists and get their name and message out, is to troll the clubs and organizations.

Now, at least, they can do it without breaking the rules.

Contact Erin Neff at eneff@reviewjournal.com or (702) 387-2906.

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