Two area legal experts will help ensure that candidates for circuit court judge are running fair and ethical campaigns.
The statewide special committee on judicial elections includes Yankton attorney John Blackburn and University of South Dakota law professor Christine Hutton of Vermillion.
Chief Justice David Gilbertson of the state Supreme Court appointed the nine-member committee, which consists of retired justices and judges, lawyers and citizens.
“We’re the only state with this (special) committee for judicial elections,” Blackburn said. “Our chief justice has been told by chief justices in other states that they wish they had a committee like this.”
The special committee was created in 2006, Hutton said. Both she and Blackburn served on that judicial panel eight years ago, the last election for circuit court judges. The panel heard between a half-dozen and dozen cases at that time, Blackburn said.
In 2014, all 41 of South Dakota’s circuit court judge positions will be subject to election by the voters.
The panel responds to candidates’ requests for advisory opinions. The committee also addresses complaints regarding judicial campaign conduct. The complaint could come from anyone, including the general public.
A complaint could deal with a candidate’s representation of his or her background and qualifications, Blackburn said. “A candidate may allege experience that he or she doesn’t have,” he said.
Because of ethical concerns, judicial candidates tend to focus on their positive attributes rather than attack their opponents, Blackburn said. “You can criticize your opponents carefully by comparing and contrasting your qualifications with theirs,” he said.
Another problem could arise with a judicial candidate taking a campaign stance on an issue, Blackburn said. Those situations might particularly arise on hot-button issues such as abortion or same-sex marriage, he added.
“You cannot advertise your future positions,” he said. “You could say you don’t care for a certain law, but you’ll do what’s right (when hearing a case on the issue). A candidate couldn’t say, ‘I would never impose the death penalty.’”
Such a public stance would create problems should such a case come before the candidate, if elected, Hutton said. “You would have to recuse (disqualify) yourself if you have taken a position,” she said.
In another area of ethics, judicial candidates cannot ask for campaign contributions from attorneys, Blackburn said. A lawyer can make an anonymous donation through a candidate’s finance committee, but the candidate isn’t to know if an attorney is supporting him financially unless the donor publicizes that support.
Judicial candidates may use the special committee to seek relief from what they see as unfair or unethical campaign tactics by opponents, Hutton said. However, the committee also hears from judicial candidates seeking an opinion for their own campaigns, such as a proposed advertisement, she said.
In addition, the judicial panel helps sort through gray areas, Hutton said. “When the candidates don’t see a definitive answer, then we get involved,” she said.
Blackburn agreed. “We field questions from candidates asking, ‘Can I do this?’ They don’t want to break the rules,” he said.
The current special committee met last Friday in Pierre for briefings and to discuss expected issues. Besides Hutton and Blackburn, the committee includes retired Chief Justice Robert A. Miller of Pierre, chairman; retired circuit judge Rodney Steele of Brookings, former governor Harvey Wollman of Frankfort, Arlene Ham-Burr of Rapid City, Robert Burns of Brookings, Bob H. Miller of Sioux Falls and Robert Riter Jr. of Pierre.
“Quite a few of us were on the last committee (eight years ago). It think it really helps us,” Hutton said. “As for myself, I just feel more comfortable in dealing with the issues as they come up (this time around).”
The emphasis is on a rapid response to any questions, Blackburn said. The committee is charged with providing an answer within a five-day period.
The committee generally responds much faster, if possible, Hutton said. “With some of these (issues), if we could resolve it within a day, we did it,” she said.
The rapid response becomes even more crucial late in the campaign season, Hutton said.
“We’re not on call, but with social media, e-mail and cell phone, we are pretty accessible,” she said. “You are definitely aware of the need to respond rapidly to anything that can come up at pretty much any minute.”
Judicial candidates must attend an election school and sign a form that they understand and will obey the rules, Blackburn said. Any ethics complaints are disseminated to committee members. A response is sought from the accused, who may issue a statement.
The special committee can receive complaints by e-mail but won’t act on it until receiving the signed complaint. The committee exercises confidentiality in dealing with issues, and members avoid any conflict of interest.
If two-thirds of participating members find clear and convincing evidence of an ethics violation, the special committee may issue a public statement. Any formal statement by the special committee shall be signed by the chair or vice-chair on behalf of the committee.
The special committee cannot institute disciplinary actions against a candidate. However, the committee can report misconduct to the Judicial Qualifications Committee and the Disciplinary Board of the Bar Association.
At the conclusion of its election work, the special committee issues a final report.
The greatest tool for maintaining judicial conduct comes from publicizing bad actors, Blackburn said. He noted any formal committee statements will be released to the media and posted on a website.
“It calls for continuing respect for the judicial process. It’s a matter of being scrutinized by the judiciary and the public itself,” he said. “We rely on the power of the press and public disclosure as an enforcement procedure.”
In the end, the people served by the courts are the real winners, Hutton said.
“We want to regard our judges as impartial and fair, that the (judicial) bench is clean and run properly,” she said. “The public perception needs to be that the process is open and works the way it is.”