The Commission has followed with concern the recent media coverage and public comments concerning the propriety and content of certain television advertising currently being used by a candidate for judicial office in a contested election for the Court of Appeals of Georgia. Although the exact script is not available to the Commission, the ad in question can generally be described as follows:

As the ad begins, a written court opinion is superimposed over a vacant court bench. An unseen announcer says, "A man who repeatedly sexually assaulted his 4 year-old son, confessed to those crimes -- twice --and was convicted." Next, an official picture of the incumbent judge, in his robe, is shown, and the announcer continues, "But Judge (incumbent) overturned the jury's verdict and reversed those convictions -- on a technicality." The candidate himself then appears and says, "People who commit crimes against innocent children should be convicted and serve their entire sentences. Isn't it time our judges protected us from criminals instead of protecting criminals from justice?"

Such ad fails to disclose that the decision which is the subject of the ad was by a 7-2 majority of the Court; that cases, especially those on appeal, are frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal of this decision by the State. Furthermore, the candidate's statement appears to prejudge legal issues which may well come before him for decision should he be elected; and finally, the obvious intent of the ad is to focus the attention of an unknowing voting public, not on the qualifications of a judicial candidate, but rather on one of the most controversial issues of the day - child molestation.

As thus viewed, this ad falls far short of the dignity appropriate to any judicial office; is incompatible with the longstanding ethical precepts recognized by judicial conduct organizations nationwide; and requires the issuance and dissemination of this advisory opinion by the Commission on its own motion as authorized by Rule 4.

Although the Commission concluded in Opinion No. 207 (May 2, 1996) that "fair and truthful criticism of an opponent is not prohibited by Canon 7(B)(1)(c)," such holding is plainly limited by the requirement that such criticism "not be of such a nature as to bring the candidate's own impartiality or that of the judiciary into question." In addition, Opinion No. 207 specifically cites and emphasizes the holding of Opinion No. 82 (May 1, 1986) wherein the Commission unequivocally stated:

... it is always inappropriate for a judicial officer or candidate to address or answer questions which are intended, or will have the effect of committing him with respect to questions which may come before him as a judge, and thereby deprive him of the impartiality with which it is necessary for him to perform his judicial duties. (Emphasis added.)

The holding of Opinion No. 82 is but a restatement of Canon 7B(1)(c) which provides, in pertinent part, that:

Candidates ... for a judicial office ... filled by ... public election between competing candidates ... should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce their views on disputed legal or political issues; or misrepresent their identities, qualifications, present positions, or other facts. (Emphasis added.)

Finally, subparagraph (a) of the same Canon requires all candidates for judicial office to "maintain the dignity appropriate to judicial office."

Measured by these standards, it is the opinion of this Commission that the use of the television ad in question in its present form exceeds the permissible limits of Opinion No. 207; is inappropriate; and tends to bring the judiciary into disrepute.

Unfortunately, and regrettably, neither Canon 7 nor the Rules of the Commission authorizes the Commission to enjoin, prohibit or otherwise restrain campaign conduct which is deemed to be inappropriate. However, in this election season, the Commission deems it appropriate to once again remind all candidates for judicial office that the Applicability Section of Canon 7 subjects a successful candidate, whether or not an incumbent, to judicial discipline for his or her campaign conduct and an unsuccessful candidate, who is a lawyer, to appropriate discipline by the State Bar.

In sum, neither Opinion No. 207 nor any other provision of the Code permits a contested judicial election in this State to be conducted as if it were a race for some other political office in which no ethical restraints are mandated, and the intent of this Opinion is to forewarn all candidates that any such conduct will be closely scrutinized and appropriately sanctioned when necessary.

To that end, and in view of the fast approaching election, the Commission directs that copies of this Opinion be immediately transmitted by facsimile and by U.S. Mail to each of the candidates involved in the election giving rise to this Opinion, as well as to appropriate media outlets with the request that such outlets prominently publicize the same at the earliest practicable date.

This 28th day of June, 1996.
JUDICIAL QUALIFICATIONS COMMISSION
By: Jerry B. Blackstock, Acting Chair*

* Chairman John E. James disqualified and not participating.