CHARLESTON – The state Judicial Investigation Commission says judicial candidates shouldn’t be answering questions on a questionnaire recently mailed by officials with the state Republican Party.
In a February 9 advisory opinion, the JIC says it would be improper to address the questions that, for the most part, seek to learn views on disputed or controversial legal issues.
For example, the questionnaire asks: (1) which of two U.S. Supreme Court justices (Scalia or Breyer) the candidate agrees with in interpreting the U.S. Constitution; and (2) whether the candidate agrees with U.S. Supreme Court decisions overturning Roe v. Wade, protecting the right of an individual to possess firearms, and that a contraception mandate imposed by the federal government violated the Freedom Restoration Act.
The JIC opinion does not say which party mailed the questionnaire to judicial candidates, but it was one sent by West Virginia Republican Party county chairs. Judicial elections in West Virginia are non-partisan, and those positions are decided in the May primaries.
“We believe you are able to answer each one of these as we carefully searched precedent and chose questions that even U.S. Supreme Court justices have publicly disclosed,” the JIC opinion quotes the Republican questionnaire. “If you choose not to return the questionnaire, your score will be ‘zero’ and we will distribute that score to voters. Failing to answer a question will result in a ‘zero’ for that question, lowering our overall score. All questions are weighted equally.”
The JIC says the survey requests the candidates’ “opinion on settled legal precedent. These questions do NOT ask for your personal opinions on specific issues.” It also says it made no mention of the West Virginia Code of Judicial Conduct.
The opinion also notes that the Code of Judicial Conduct says judges are different from legislators or members of the executive branch and that judicial candidates also are prohibited from making pledges, promises or commitments that are inconsistent with the impartial performance of duties.
Citing that code of conduct and several of its rules as well as previous advisory opinions, the JIC says “a judge cannot … comment when the topic involves a pending or impending case before any court. A judge may … address court procedures if the subject … is about general court procedures and not tied to any specific pending or impending matters.”
“The (GOP) questionnaire by its own admission does not ask for the candidate’s personal opinions which would be perfectly acceptable as long as the responder was given the opportunity to explain that he/she could apply and uphold the law without regard to his/her own personal views,” the four-page opinion signed by JIC Chairman Alan D. Moats, states. “Instead, the questionnaire claims that it is seeking ‘opinions on settled legal precedent.’
“However, abortion rights, contraception and the right to bear arms, as of today, are still not truly settled, and the wording and format of the questionnaire at issue is such that candidate responses without any explanation might be viewed by the public however wrong it may be as a pledge, promise or commitment to perform his/her adjudicative duties of office other than in an impartial way.
“This is particularly true when there is no mechanism for the candidate to assure the public that he/she will faithfully and impartially carry out his/her duties if elected or for him/her to explain why he/she answered in the way that he/she did.”