Opinion says judicial candidates should work to eliminate false statements in third-party ads

By Chris Dickerson | Jan 7, 2019

CHARLESTON — A recent opinion by the state Judicial Investigation Commission says candidates should ask third parties to stop making misleading statements in election advertising.

State “code does not limit the content of advertisements that a (Political Action Committee) may run for or against a judicial candidate,” the Dec. 14 JIC advisory opinion states. “Importantly, the duty is on the judge or judicial candidate to disavow any advertisements or comments made by a PAC that are false or misleading, fail to accurately reflect the duties and role of a judge, or indicate that a judge is not neutral and detached but would be biased in favor of or against an individual, group or legal issue. …

“Further, a judge or judicial candidate should request the third-party or PAC to immediately cease and desist from making such statements. To refrain from taking such action would give the public the impression that the judge or judicial candidate endorses the improper statements in violation of the Code of Judicial Conduct.”

The JIC opinion was signed by Chairman Ronald Wilson, a circuit judge. It mentions that two parties asked for the opinion, but it does not name the parties who requested it.


The opinion says third parties can run advertisements endorsing judicial candidates. It also says the state Code of Judicial Conduct doesn’t limit what such ads can say about candidates.

But, the opinion says candidates must disavow “any false or misleading statements made about opponents by a third party or PAC,” “any statements that do not accurately reflect the duties and role of a judge made by a third party or PAC,” “any statement made by a third party or PAC that indicates that a judge or candidate is not neutral and detached but would be biased in favor of or against an individual, group or legal issue.”

The opinion also says judicial candidates can be members of political parties and can seek, accept and use endorsements from a PAC. It says PACs can run campaign ads for or against candidates as well.

In this fall’s general election, two advertisements by the Republican State Leadership Committee’s Judicial Fairness Initiative drew focus. The group, based in Washington, D.C., spent about $2 million in last year’s election promoting then-appointed Justices Tim Armstead and Evan Jenkins for election to the state Supreme Court.

Their ads said Armstead and Jenkins would “throw the book at child predators and make drug dealers pay dearly with harsh sentences.” The state Supreme Court is an appeals court, hearing appeals of circuit courts decisions. It does not issue sentences.

Both Armstead and Jenkins were Republicans before the judicial election, which is non-partisan. Both won their elections in November to remain on the court.

Another RSLC ad accused Kanawha Circuit judicial candidate Tera Salango, a former Kanawha County Prosecuting Attorney, of dismissing charges against a man accused of attacking and kidnapping his girlfriend. The RSLC supported Dan Greear, also a Republican before the judicial election, in that race. Salango won the seat after Greear had been appointed to fill the seat temporarily.

Kanawha County Prosecuting Attorney Chuck Miller said the RSLC ad about Salango was “false and misleading,” adding that Salango appeared at the man’s sentencing and pushed for jail time.

A spokesman for the RSLC defended the group’s actions.

“Voter education is the lifeblood of free and fair elections and the highest priority for the JFI (Judicial Fairness Initiative), and any opinion that would compel a judicial candidate to disavow lawful criticism of his or her opponent only protects the status quo and insulates incumbents from public scrutiny,” David James told The West Virginia Record. “This opinion unfortunately gives the appearance of an entrenched group of judges trying to shield themselves from public criticism in violation of the First Amendment.”

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