Rule 4.2 Political and Campaign Activities of Judicial Candidates in Public Elections

COMMENT

[1] Paragraph (B) permits judicial candidates in public elections to engage in some political and campaign activities otherwise prohibited by Rule 4.1.

[2] Despite paragraph (B), judicial candidates for public election remain subject to many of the provisions of Rule 4.1. For example, a candidate continues to be prohibited from soliciting funds for a political organization, knowingly making false or misleading statements during a campaign, or making certain promises, pledges, or commitments related to future adjudicative duties. See Rule 4.1(A), paragraphs (4), (9), and (11).

[3] A judge or candidate may be a member of a political party, and that affiliation is and has been a matter of public record in West Virginia. A judge or candidate may be endorsed by or otherwise publicly identified or associated with a political party by a person or entity not affiliated with the judicial campaign. Therefore, a judge or candidate may maintain his or her party affiliation through a judicial election, and he or she may include political party affiliation or similar designation in campaign communications and literature.

Clerk's Notes on Rule 4.2

Rule 4.2 and its comment are based on the 2007 Model Code with a number of revisions. The tiered approach in Paragraph (A) of the Model Rule was simplified in light of the fact that all West Virginia judicial elections are nonpartisan as a result of the passage of House Bill 2010. Paragraphs (A)(1) through (4) are based entirely on the Model Rule. Paragraph (A)(5) is not contained in the Model Rules, and provides useful guidance about the need to take corrective action upon discovering misrepresentation in a judicial candidate’s campaign statements or materials. The opening clause of Paragraph (B) omits the time window set forth in the Model Rule. The time window in the Model Rule is unnecessary because all judicial elections are now to be conducted in single-seat divisions, and state election law already sets windows for pre-candidacy activities and formal declarations of candidacy. Paragraphs (B)(1) and (2) are based entirely on the Model Rule. However, Model Rule Paragraph (B)(3), which allows a judicial candidate to endorse another candidate running for the same office, is not included. This exception to the general prohibition in Rule 4.1(A)(3) has never been adopted in West Virginia. Paragraph (B)(3) is based entirely on Model Rule Paragraph (B)(4). Paragraph (B)(4) is a modified version of Model Rule Paragraph (B)(5), and does not include the Model Rule’s limitation on seeking support from partisan political organizations. Paragraph (B)(5) is new and was added after the public comment period. Along with the new Comment [3], Paragraph (B)(5) is intended to provide guidance to candidates regarding the fact that membership in a political party may be articulated in the context of a nonpartisan election. Paragraph (B)(6) is a modified version of the Model Rule. Comments [1] and [2] are modified versions of the Model Rule, adjusted to take into account the changes described in this note. Model Rule Comments [3] through [7] are omitted as unnecessary, because they address distinctions between partisan and nonpartisan elections.