Rule 5. A Judge or Judicial Candidate Shall Refrain from Inappropriate Political Activity

A. All Judges and Candidates.

(1) Except as authorized in Sections 5B(2) and 5C, a

judge or a candidate* for appointment to judicial office shall

not:

(a) act as a leader of or hold office in a political

organization.*

(b) publicly endorse or publicly oppose a candidate for

any public office. However, when false information

concerning a judicial candidate* is made public, a judge or

candidate having knowledge* of contrary facts may make the

facts public.

(c) make speeches on behalf of a political organization.*

(d)  attend political gatherings.

(e)  solicit funds for any political organization* or

candidate for public office, pay an assessment or make a

contribution to a political organization or candidate for public

office, purchase tickets for a political organization’s dinners or

other functions.

Commentary.—A judge or candidate for judicial office retains

the right to participate in the political process as a voter.

Section 5A(1)(b) does not prohibit a judge or judicial

candidate from privately expressing his or her views on

judicial candidates or other candidates for public office. Nor

does this section restrict the Chief Justice, acting in the role of

Chair of the Alaska Judicial Council, when explaining the

Judicial Council’s retention recommendations to the public.

Judges should be able to take part in the public debate over

proposals to change the legal system or the administration of

justice; judges’ training and experience make them a valuable

resource to the electorate wishing to decide these issues. Since

many speeches are given in forums sponsored by political

organizations, a question arises concerning the relationship

between, on the one hand, a judge’s right to speak publicly on

issues concerning the legal system and the administration of

justice, and, on the other hand, the prohibition contained in

Section 5A(1)(d)—that a judge shall not attend the gathering

of a political organization

many speeches are given in forums sponsored by political

organizations, a question arises concerning the relationship

between, on the one hand, a judge’s right to speak publicly on

issues concerning the legal system and the administration of

justice, and, on the other hand, the prohibition contained in

Section 5A(1)(d)—that a judge shall not attend the gathering

of a political organization. Despite a judge’s freedom to speak

on legal issues, a judge shall not do so on behalf of a political

organization or at a political gathering.

(2)  A judge shall resign upon becoming a candidate* in

either a primary or general election for any non-judicial office

except the office of delegate to a state or federal constitutional

convention.

(3) A candidate for judicial office:*

(a) shall maintain the dignity appropriate to judicial

office and act in a manner consistent with the integrity and

independence of the judiciary, and shall encourage members of

the candidate’s family to adhere to the same standards that

apply to the candidate. “Members of the candidate’s family”

means the candidate’s spouse,* children, grandchildren,

parents, grandparents, and other relatives or persons with

whom the candidate maintains a close familial relationship.

Commentary.—Although a judicial candidate must encourage

members of his or her family to adhere to the same standards

of political conduct in support of the candidate that apply to

the candidate, family members are free to participate in other

political activity.

(b) shall prohibit employees and officials who serve at

the pleasure of the candidate, and shall discourage all other

employees and officials subject to the candidate’s direction and

control, from doing anything on the candidate’s behalf that is

forbidden to the candidate under these rules.

ate that apply to

the candidate, family members are free to participate in other

political activity.

(b) shall prohibit employees and officials who serve at

the pleasure of the candidate, and shall discourage all other

employees and officials subject to the candidate’s direction and

control, from doing anything on the candidate’s behalf that is

forbidden to the candidate under these rules.

(c) shall not authorize or permit any person to take

actions forbidden to the candidate under these rules, except

when these rules specifically allow other people to take actions

that would be forbidden to the candidate personally.

(d) shall not:

(i) make pledges or promises of conduct in judicial

office other than to faithfully and impartially perform the

duties of the office;

(ii) make statements that commit or appear to commit the

candidate to a particular view or decision with respect to cases,

controversies or issues that are likely to come before the court;

or

(iii) knowingly* misrepresent any fact concerning the

candidate or an opposing candidate for judicial office.

Commentary.—Section 5A(3)(d) prohibits a candidate for

judicial office from making statements that appear to commit

the candidate regarding cases, controversies, or issues likely

to come before the court. As a corollary, a candidate for

judicial office should emphasize in any public statement the

candidate’s duty to uphold the law regardless of his or her

personal views. See also Section 3B(9), the general rule on

public comment by judges. Section 5A(3)(d) does not prohibit a

candidate from making pledges or promises respecting

improvements in court administration. Nor does this Section

prohibit an incumbent judge from making private statements to

other judges or court personnel in the performance of judicial

duties

regardless of his or her

personal views. See also Section 3B(9), the general rule on

public comment by judges. Section 5A(3)(d) does not prohibit a

candidate from making pledges or promises respecting

improvements in court administration. Nor does this Section

prohibit an incumbent judge from making private statements to

other judges or court personnel in the performance of judicial

duties. This Section applies to any statement made in the

process of securing judicial office, such as statements to

commissions charged with judicial selection and tenure and

legislative bodies confirming appointment. See also Rule 8. 2

of the Alaska Rules of Professional Conduct.

In Buckley v. Illinois Judicial Inquiry Board, 997 F. 2d 224

(7th Cir. 1993), the Seventh Circuit ruled that the ABA’s

proposed Section 5A(3)(d)(i) and the 1972 predecessor to the

ABA’s

proposed

Section

5A(3)(d)(ii)

represent

an

unconstitutional abridgement of judicial candidates’ right of

free speech.

The Illinois rule at issue in Buckley prohibited judges and

judicial candidates from making “pledges or promises of

conduct in office other than the faithful and impartial

performance of the duties of the office” and further prohibited

judges and judicial candidates from “announc[ing] [their]

views on disputed legal or political issues.” These same

restrictions are currently the law of Alaska: see Alaska Code

of Judicial Conduct, Section 7B(1)(c). The Seventh Circuit held

that

these

two

restrictions

on

judges’

speech

are

unconstitutionally overbroad.

Buckley involved two plaintiffs

he office” and further prohibited

judges and judicial candidates from “announc[ing] [their]

views on disputed legal or political issues.” These same

restrictions are currently the law of Alaska: see Alaska Code

of Judicial Conduct, Section 7B(1)(c). The Seventh Circuit held

that

these

two

restrictions

on

judges’

speech

are

unconstitutionally overbroad.

Buckley involved two plaintiffs. The first plaintiff was a judge

from the intermediate appeals court who ran for the state

supreme court; the Judicial Inquiry Board disciplined him for

declaring, during the campaign, that he had “never written an

opinion reversing a rape conviction.” The second plaintiff was

a legislator who campaigned for (and was elected to) a seat on

the Cook County Circuit Court; he sought relief because “the

risk of being sanctioned for violating [the judicial conduct

rule] deterred him from speaking out in his campaign on issues

that he believed to be important to Illinois voters, including

capital punishment, abortion, the state’s budget, and public

school education.”

The Seventh Circuit noted that Buckley presented the collision

of two competing political principles: First, “Candidates for

public office should be free to express their views on all

matters of interest to the electorate.” Second, “Judges [must]

decide cases in accordance with law rather than [in

accordance] with any express or implied commitments that

they may have made to their campaign supporters or to

others.” Buckley, 997 F. 2d at 227.

The court declared that “only a fanatic would suppose

that…freedom of speech should . . . entitle a candidate for

judicial office to promise to vote for one side or another in a

particular case or class of cases[.]” On the other hand, the

court likewise disavowed the idea “that the principle of

impartial

legal

justice

should…prevent

a

[judicial]

candidate…from furnishing any information or opinion to the

electorate beyond his name, rank, and serial number.” Id

h should . . . entitle a candidate for

judicial office to promise to vote for one side or another in a

particular case or class of cases[.]” On the other hand, the

court likewise disavowed the idea “that the principle of

impartial

legal

justice

should…prevent

a

[judicial]

candidate…from furnishing any information or opinion to the

electorate beyond his name, rank, and serial number.” Id. The

court went on to state:

The difficulty with crafting a rule to prevent [a judicial

candidate

from

making

commitments] is

that

a

commitment can be implicit as well as explicit… The

candidate might make an explicit commitment to do

something that was not, in so many words, taking sides in

a particular case or class of cases but would be so

understood by the electorate; he might for example

promise always to give paramount weight to public safety

or to a woman’s right of privacy. Or he might discuss a

particular case or class of cases in a way that was

understood as a commitment to rule in a particular way,

even though he avoided the language of pledges,

promises, or commitments.

The “pledges or promises” clause is not limited to

pledges or promises to rule a particular way in particular

cases or classes of case; all pledges and promises are

forbidden except a promise that the candidate will if

elected faithfully and impartially discharge the duties of

his judicial office. The “announce” clause is not limited

to declarations as to how the candidate intends to rule in

particular cases or classes of case; he may not “announce

his views on disputed legal or political issues,” period.

The rule certainly deals effectively with the abuse that the

draftsmen were concerned with; but in so doing it gags

the judicial candidate. He can say nothing in public about

his judicial philosophy, he cannot, for example, pledge

himself to be a strict constructionist, or for that matter a

legal realist. He cannot promise a better shake for

indigent litigants or harried employers

” period.

The rule certainly deals effectively with the abuse that the

draftsmen were concerned with; but in so doing it gags

the judicial candidate. He can say nothing in public about

his judicial philosophy, he cannot, for example, pledge

himself to be a strict constructionist, or for that matter a

legal realist. He cannot promise a better shake for

indigent litigants or harried employers. He cannot

criticize Roe v. Wade. He cannot express his views about

substantive due process, economic rights, search and

seizure, the war on drugs, the use of excessive force by

police, the conditions of the prisons, or products

liability—or for that matter about laissez-faire economics,

race relations, the civil war in Yugoslavia, or the proper

direction of health-care reform . . . All these are disputed

legal or political issues.

The rule this reaches far beyond speech that could

reasonably be interpreted as committing the candidate in a

way that would compromise his impartiality should he be

successful in the election. Indeed, the only safe response

to Illinois Supreme Court Rule 67(B)(1)(c) is silence.

True, the silencing is temporary. It is limited to the

duration of the campaign. But [the rule’s] interference

with the marketplace of ideas and opinions is at its zenith

when the “customers” are most avid for the market’s

“product.” The only time the public takes much interest in

the ideas and opinions of judges or judicial candidates is

when an important judicial office has to be filled . . . .

Id. at 228-29. The Seventh Circuit noted, but expressed no

opinion on, the ABA’s proposed revision of the “announce his

views” clause

and opinions is at its zenith

when the “customers” are most avid for the market’s

“product.” The only time the public takes much interest in

the ideas and opinions of judges or judicial candidates is

when an important judicial office has to be filled . . . .

Id. at 228-29. The Seventh Circuit noted, but expressed no

opinion on, the ABA’s proposed revision of the “announce his

views” clause. In the 1990 version of the model Code, the ABA

has amended this Section so that it now prohibits a judge or

judicial candidate from making “statements that commit or

appear to commit the judge to a particular view or decision

with respect to cases, controversies, or issues… likely to come

before [the judge’s] court.” According to the ABA commentary

to Section 5A(3)(d)(ii), the predecessor “announce” rule was

felt to be too broad.

The Seventh Circuit points out in Buckley that, even with this

change, the ABA provisions may run afoul of First Amendment

protections. For example, read too broadly, a Section that

prohibits a judge from making any pledge or promise (other

than to do a good job) could be used as a basis for disciplinary

action against a judicial candidate who declared that he or she

believed the courts should actively pursue sentencing

alternatives to imprisonment. Conceivably, this same provision

could subject a judge to discipline for declaring, as Ruth

Ginsberg told the Senate Judiciary Committee on July 20,

1993 [as reported in the Anchorage Daily News of 7/21/93],

“My approach [to service on the supreme court] is rooted in

the [belief] that the place of the judiciary . . . in our

democratic society [is] third in line behind the people and

their elected representatives”—a comment that might be

construed as a pledge to broadly construe the powers of the

legislative branch and to narrowly circumscribe the reach of

the Bill of Rights as a check on legislative activity. The Code

should be interpreted in a manner that does not infringe First

Amendment rights.

. . in our

democratic society [is] third in line behind the people and

their elected representatives”—a comment that might be

construed as a pledge to broadly construe the powers of the

legislative branch and to narrowly circumscribe the reach of

the Bill of Rights as a check on legislative activity. The Code

should be interpreted in a manner that does not infringe First

Amendment rights.

(e) may respond to personal attacks or attacks on the

candidate’s record, as long as the response contains no

knowing misrepresentation of fact and does not violate Section

5A(3)(d).

B.  Candidates Seeking Appointment to Judicial or

Other Governmental Office.

(1) A candidate* for appointment to judicial office or a

judge seeking appointment to another governmental office

shall not solicit or accept any funds, personally or through a

committee or otherwise, to support his or her candidacy.

(2) A candidate* for appointment to judicial office or a

judge seeking appointment to another governmental office may

not engage in any political activity* to secure appointment,

with the following exceptions:

(a) subject to Section 5A(3), such persons may:*

(i) communicate with the appointing authority, including

any selection, screening, or nominating bodies;

(ii) seek privately-communicated support or endorsement

from organizations and individuals; and

(iii) provide

information

regarding

his

or

her

qualifications for office to organizations and individuals from

whom the candidate seeks support;

(b) a non-judge candidate* for appointment to judicial

office may, in addition, unless otherwise prohibited by law:*

eening, or nominating bodies;

(ii) seek privately-communicated support or endorsement

from organizations and individuals; and

(iii) provide

information

regarding

his

or

her

qualifications for office to organizations and individuals from

whom the candidate seeks support;

(b) a non-judge candidate* for appointment to judicial

office may, in addition, unless otherwise prohibited by law:*

(i) retain an office in a political organization,*

(ii) attend political gatherings, and

(iii) continue to pay ordinary assessments and dues to

political organizations* and to purchase tickets for political

party dinners or other functions.

Commentary.—Section 5B(2) provides a limited exception to

the restrictions imposed by Sections 5A(1) and 5D. Under

Section 5B(2), candidates seeking reappointment to the same

judicial office or appointment to another judicial office or

other governmental office may support their own candidacy

and seek appropriate support from others.

Sections 5B(2)(a)(ii) and (iii) should be read to allow judicial

candidates, including judges who are candidates for

appointment to other judicial office, to promote their

candidacy by circulating letters to the general membership of

the bar and to organizations interested in judicial selection.

Similarly, a judge need not object when individual lawyers or

groups of lawyers decide to circulate a letter in support of the

judge’s candidacy. However, these letters must not contain

promises or statements forbidden by Section 5A(3)(d)

(regarding the candidate’s likely decisions or action if

appointed), must not contain false statements, and, in general,

must not violate any other provision of the Code.

A different problem is presented when a judicial candidate

approaches individual lawyers or organizations and seeks

their endorsement of his or her candidacy

not contain

promises or statements forbidden by Section 5A(3)(d)

(regarding the candidate’s likely decisions or action if

appointed), must not contain false statements, and, in general,

must not violate any other provision of the Code.

A different problem is presented when a judicial candidate

approaches individual lawyers or organizations and seeks

their endorsement of his or her candidacy. Even though Canon

5 generally tries to make the rules of political conduct uniform

for all judicial candidates (both current judges and lawyers

applying to be judges), a sitting judge’s approach to individual

lawyers inevitably presents problems that do not arise when a

non-judge candidate approaches other members of the bar.

Because a sitting judge will wield judicial power whether or

not the judge’s campaign for a different office is successful, a

judge who asks individuals for political support runs the risk

that the request will give the appearance of abuse of office.

Because there is a latent potential for subtle coercion in such

requests, a judge’s request for the personal endorsement of a

lawyer must be circumspect and framed cautiously. A judge

must take pains to avoid even giving the appearance that he or

she is using or threatening to use the power of judicial office to

obtain endorsements.

Section 5B(2)(a)(ii) allows a candidate to seek privately-

communicated support or endorsement. Under this provision,

a candidate may ask individuals and organizations to send a

letter to the Alaska Judicial Council or to the governor, or to

speak in support of the candidate at a public hearing held by

the Judicial Council or at a private meeting with the governor

or the governor’s staff. However, a candidate may not ask or

authorize individuals or organizations to run newspaper

advertisements endorsing the candidate or to send letters to

their membership or to other organizations encouraging them

to support the candidate

or to

speak in support of the candidate at a public hearing held by

the Judicial Council or at a private meeting with the governor

or the governor’s staff. However, a candidate may not ask or

authorize individuals or organizations to run newspaper

advertisements endorsing the candidate or to send letters to

their membership or to other organizations encouraging them

to support the candidate. If the candidate is a judge, the

candidate should ask individuals and organizations not to send

copies of endorsement letters to the candidate.

Although under Section 5B(2)(b) non-judge candidates seeking

appointment to judicial office are permitted during their

candidacy to retain office in a political organization, attend

political gatherings and pay ordinary dues and assessments,

they remain subject to other provisions of this Code during

their candidacy. See Sections 5E and Application Section.

C. Judges Seeking Retention.

(1) A judge who is a candidate* for retention in judicial

office may engage in the following political activity to secure

retention:

(a) submit a photograph and a statement supporting his

or her candidacy for inclusion in the state election pamphlet

under AS 15.58;

(b) in response to an unsolicited request,

(i) speak to public gatherings on behalf of his or her

candidacy;

(ii) appear on television and radio programs to discuss

his or her candidacy; and

(iii) grant interviews regarding his or her candidacy;

(c) form an election committee of responsible persons to

conduct an election campaign in anticipation of active

opposition to the judge’s candidacy; and

(d) reserve media space, domains, and locations, and

design and prepare campaign materials in anticipation of active

opposition to the judge’s candidacy and spend necessary funds

for these activities.

(2) A judge who is a candidate* for retention in judicial

office may engage in the following additional political activity

when there is active opposition to the judge’s candidacy:

idacy; and

(d) reserve media space, domains, and locations, and

design and prepare campaign materials in anticipation of active

opposition to the judge’s candidacy and spend necessary funds

for these activities.

(2) A judge who is a candidate* for retention in judicial

office may engage in the following additional political activity

when there is active opposition to the judge’s candidacy:

(a) advertise in newspapers, on television, and in other

media in support of his or her candidacy; and

(b) distribute pamphlets and other promotional literature

supporting his or her candidacy.

Commentary.—Sections 5C(1) and (2) permit a judge who is a

candidate for retention to be involved in limited political

activity. Section 5D, applicable solely to incumbent judges,

would otherwise bar this activity.

Section 5C(2) allows judges seeking retention in office to

engage in overt political activity if there is “active opposition”

to their candidacy. This Code, like the prior Code, does not

define “active opposition.” However, the term is meant to be

broadly construed. A negative recommendation by the Alaska

Judicial Council constitutes active opposition. Holding a press

conference, advertising, distributing brochures or leaflets, and

sending letters to voters are all forms of active opposition. On

the other hand, statements made by individual speakers at

Judicial Council meetings rarely constitute active opposition,

regardless of what is said. Active opposition may be conducted

by individuals acting alone as well as by groups. The

opposition need not be specifically targeted at one particular

judge or at a discrete group of judges—a newspaper

advertisement urging the rejection of all judges standing for

retention would be viewed as active opposition to the

candidacy of each individual judge

opposition,

regardless of what is said. Active opposition may be conducted

by individuals acting alone as well as by groups. The

opposition need not be specifically targeted at one particular

judge or at a discrete group of judges—a newspaper

advertisement urging the rejection of all judges standing for

retention would be viewed as active opposition to the

candidacy of each individual judge. If a judge has information

and believes that active opposition is imminent, the judge may

document the basis of this belief to the Judicial Conduct

Commission and may then proceed as if there were active

opposition to the judge’s candidacy.

(3) A judge who is a candidate* for retention in judicial

office shall not personally solicit or accept any funds to

support his or her candidacy or personally solicit publicly

stated support for his or her candidacy. However, if there is

active opposition to the judge’s candidacy, the judge’s election

committees may engage in media advertisements, brochures,

mailings, candidate forums, and any other legal methods of

pursuing the judge’s election. Such committees may solicit and

accept reasonable campaign contributions, manage and expend

these funds on behalf of the judge’s election campaign and

solicit and obtain public statements of support for the judge’s

candidacy. Such committees are not prohibited from soliciting

and accepting reasonable campaign contributions and public

support from lawyers. A candidate’s committee may solicit

contributions and public support for the candidate’s campaign

preceding the election and for 90 days thereafter. A judge shall

not make private use of campaign funds raised by an election

committee or use these funds for the private benefit of any

other person or permit anyone else to use these funds for the

private benefit of any person

port from lawyers. A candidate’s committee may solicit

contributions and public support for the candidate’s campaign

preceding the election and for 90 days thereafter. A judge shall

not make private use of campaign funds raised by an election

committee or use these funds for the private benefit of any

other person or permit anyone else to use these funds for the

private benefit of any person.

Commentary.—Section 5C(2) permits a judge who is a

candidate for retention to establish a campaign committee to

solicit and accept public support and reasonable financial

contributions if there is active opposition to the judge’s

candidacy. At the start of the campaign, the judge must instruct

his or her campaign committee to solicit or accept only

contributions that are reasonable under the circumstances.

Though not prohibited, campaign contributions of which a

judge has knowledge, made by lawyers or others who appear

before the judge, may be relevant to disqualification under

Section 3E.

Campaign committees established under Section 5C(2) should

manage campaign finances responsibly, avoiding deficits that

might necessitate post-election fundraising, to the extent

possible.

Section 5C(2) does not prohibit a judge who is a candidate for

retention from initiating an evaluation by a judicial selection

commission or bar association, or, subject to the requirements

of this Code, from responding to a request for information

from any organization.

Sections 5C and 5D are intended to restrict fundraising by and

on behalf of individual judges. These Sections are not intended

to prohibit an organization of judges from soliciting money

from judges to establish a campaign fund to assist judges who

face active opposition to their retention.

They are not intended to restrict the ability of judges to spend

their own funds in support of their own candidacies.

5D are intended to restrict fundraising by and

on behalf of individual judges. These Sections are not intended

to prohibit an organization of judges from soliciting money

from judges to establish a campaign fund to assist judges who

face active opposition to their retention.

They are not intended to restrict the ability of judges to spend

their own funds in support of their own candidacies.

(4) A judge who is a candidate* for selection as a

delegate to a federal or state constitutional convention may

engage in any political activity* to secure election allowed to

other candidates for that office.

D. Incumbent Judges. A judge shall not engage in any

political activity* except (i) as authorized under any other

Section of this Code, (ii) on behalf of measures to improve the

law,* the legal system, or the administration of justice, or (iii)

as expressly authorized by another provision of law.

Commentary.—Neither Section 5D nor any other Section of

the Code prohibits a judge in the exercise of administrative

functions from engaging in planning and other official

activities with members of the executive and legislative

branches of government. With respect to a judge’s activity on

behalf of measures to improve the law, the legal system, and

the administration of justice, see Commentary to Section 4B

and Section 4C(1) and its Commentary.

E. Applicability. Canon 5 applies to all incumbent

judges and judicial candidates.* A successful candidate,

whether or not an incumbent, is subject to judicial discipline

for his or her campaign conduct; an unsuccessful candidate

who is a lawyer is subject to lawyer discipline for his or her

campaign conduct. A lawyer who is a candidate for judicial

office is subject to Rule 8.2(b) of the Alaska Rules of

Professional Conduct.

(Adopted by SCO 1322 effective July 15, 1998; amended by

SCO 1762 effective July 2, 2011)

APPLICATION OF THE CODE OF JUDICIAL

CONDUCT

A. Full-Time Judicial Officers

an unsuccessful candidate

who is a lawyer is subject to lawyer discipline for his or her

campaign conduct. A lawyer who is a candidate for judicial

office is subject to Rule 8.2(b) of the Alaska Rules of

Professional Conduct.

(Adopted by SCO 1322 effective July 15, 1998; amended by

SCO 1762 effective July 2, 2011)

APPLICATION OF THE CODE OF JUDICIAL

CONDUCT

A. Full-Time Judicial Officers. The following judicial

officers shall comply with all provisions of this Code:

(1) active justices of the supreme court and active judges

of the court of appeals, the superior court, and the district court

(including acting district court judges);

(2) full-time magistrate judges;

(3) committing magistrate judges; and

(4) standing masters.

B. Senior Judges.

(1) Senior judges (retired justices of the supreme court

and retired judges of the court of appeals, the superior court,

and the district court who are eligible for judicial service under

Administrative Rule 23) shall comply with all provisions of

this Code except:

(a) 4D(1)(b) (transactions with persons likely to come

before the judge’s court);

(b) 4D(4) (management of financial resources to

minimize disqualification);

(c) 4E(1) (fiduciary service for persons other than family

members);

(d) 4E(2) (fiduciary service where proceedings likely

before judge’s court);

(e) 4F (service as arbitrator or mediator). However, a

senior judge who serves as an arbitrator or mediator must

comply with Administrative Rule 23(f); and

ge’s court);

(b) 4D(4) (management of financial resources to

minimize disqualification);

(c) 4E(1) (fiduciary service for persons other than family

members);

(d) 4E(2) (fiduciary service where proceedings likely

before judge’s court);

(e) 4F (service as arbitrator or mediator). However, a

senior judge who serves as an arbitrator or mediator must

comply with Administrative Rule 23(f); and

(f) a senior judge may speak publicly regarding the

qualification of a judge seeking retention who faces active

opposition.

(2) In addition, a senior judge need not comply with

Section 4C(2) (appointment to government positions) except

during periods of appointment to active judicial service under

Administrative Rule 23.

(3) Senior judges who serve as members of a judicial

assistance committee have additional ethical obligations to

maintain the confidentiality of communications received in

that capacity, including the identities of those seeking the

services of the committee or those referring matters to the

committee. Consequently, senior judges serving in this

capacity may not report any failure of a judge referred to the

committee to admit the problem or submit to treatment.

Commentary.—A senior judge—a retired justice or judge who

is eligible for judicial service under Administrative Rule 23—

must comply with all provisions of the Code except those

listed. Thus, a senior judge may engage in financial and

business dealings with any person and has no duty to manage

investments and business and financial interests to minimize

the number of cases in which the judge is disqualified. A senior

judge may serve as a personal representative, trustee,

guardian, or other fiduciary for persons other than family

members. Although senior judges may not engage in the

practice of law, they may serve as private arbitrators or

mediators and may maintain private arbitration and mediation

businesses, even during periods of pro tem service

er of cases in which the judge is disqualified. A senior

judge may serve as a personal representative, trustee,

guardian, or other fiduciary for persons other than family

members. Although senior judges may not engage in the

practice of law, they may serve as private arbitrators or

mediators and may maintain private arbitration and mediation

businesses, even during periods of pro tem service. However,

in order to be eligible for judicial service, a judge who

performs private arbitration or mediation must comply with

the disclosure requirements and employment restrictions set

out in Administrative Rule 23(e).

Senior judges may publicly speak regarding the qualifications

of judges facing active opposition. This limited exception to

Canon 5A(1)(b) preserves the general insulation of judges

from political pressures while allowing for an informed public

debate on the qualifications of a judge up for retention.

A senior judge may serve on a government committee or

commission or hold a government position except during

periods of pro tem service.

Despite the relaxation of restrictions on senior judges’

financial dealings, they remain subject to the disqualification

provisions of Section 3E.

The special confidentiality obligations when serving as a

member of a judicial assistance committee are narrowly

tailored to provide for candid reporting to the judicial

assistance committee.

C. Part-Time

Magistrate

Judges

and

Deputy

Magistrates.

Part-time

magistrate

judges

and

deputy

magistrates shall comply with all provisions of this Code

except:

(1) Section 4C(1) (appearance before or consultation

with executive or legislative bodies) if the magistrate judge or

deputy magistrate holds an office or position of profit under

the United States, the state, or its political subdivisions and

must engage in Section 4C(1) activities in order to perform the

duties of this office or position;

(2) Section

4C(2)

(appointment

to

government

positions);

4C(1) (appearance before or consultation

with executive or legislative bodies) if the magistrate judge or

deputy magistrate holds an office or position of profit under

the United States, the state, or its political subdivisions and

must engage in Section 4C(1) activities in order to perform the

duties of this office or position;

(2) Section

4C(2)

(appointment

to

government

positions);

(3) Section 4D(1)(b) (transactions with persons likely to

come before the judge’s court);

(4) Section 4D(3)(c) (participation in business activity

that has major effect on economic life of community);

(5) Section 4E(1) (fiduciary service for persons other

than family members);

(6) Section 4G (practice of law);

(7) Section 5A(1)(d) (attendance at political gatherings)

if the magistrate judge or deputy magistrate holds or is seeking

non-judicial public office;

(8) Section 5A(1)(e) (solicitation and contribution of

campaign funds) to the extent that the magistrate judge or

deputy magistrate is soliciting funds for or contributing funds

to the magistrate judge’s own campaign for non-judicial public

office;

(9) Section 5A(2) (resignation upon becoming a

candidate for nonjudicial office); and

(10) Sections 5B (political activity to secure appointment

to public office).

Commentary.—AS 22.15.210(b) guarantees magistrates a

conditional right to seek and hold any other office or position

of profit under the United States, this State, or its political

subdivisions, and to engage in the conduct of any profession or

business that does not interfere with the performance of

judicial duties or necessitate repeated disqualifications.

Because of this statute, part-time magistrates are exempt from

the restrictions on holding non-judicial public office. They are

also permitted to engage in political activity necessary to

secure and perform the duties of non-judicial public office.

Note, however, that political activity by court system

employees is also limited by Personnel Rule PX9.O

necessitate repeated disqualifications.

Because of this statute, part-time magistrates are exempt from

the restrictions on holding non-judicial public office. They are

also permitted to engage in political activity necessary to

secure and perform the duties of non-judicial public office.

Note, however, that political activity by court system

employees is also limited by Personnel Rule PX9.O. Under this

rule, a court system employee forfeits his or her position upon

becoming a candidate for state or national elective political

office, other than the office of delegate to a state or federal

constitutional convention.

The Code exempts part-time magistrates from two restrictions

on business activity, the duty to avoid financial and business

dealings with persons likely to come before the magistrate’s

court, and the duty to avoid business activity that has a major

effect on the economic life of the community. In a small

community, it may be difficult for a magistrate to avoid

business dealings with persons likely to come before the

magistrate’s court, and even a moderately-sized business

venture may have a major effect on the community’s economic

life. Thus, these restrictions could make it impossible for a

part-time magistrate to carry on outside business activity in

order to supplement his or her part-time judicial salary. Part-

time magistrates remain subject to Section 4D(4), which

requires that they manage their financial dealings to minimize

the number of cases in which they are disqualified. They also

remain subject to the disqualification provisions of Section 3E.

They are also subject to Personnel Rule PX5.04, which

regulates outside employment by court system employees.

A part-time magistrate may serve as a fiduciary for persons

other than family members, subject to Sections 4E(2) and

4E(3)

ir financial dealings to minimize

the number of cases in which they are disqualified. They also

remain subject to the disqualification provisions of Section 3E.

They are also subject to Personnel Rule PX5.04, which

regulates outside employment by court system employees.

A part-time magistrate may serve as a fiduciary for persons

other than family members, subject to Sections 4E(2) and

4E(3). A part-time magistrate who is an attorney may practice

law, subject to Administrative Rule 2(d), which prohibits court

system employees from engaging, directly or indirectly, in the

practice of law in any of the courts of this state.

D. Special Masters.

(1) A special master who is not an active judge,

magistrate judge, or standing master shall comply with the

following provisions of this Code:

(a) Canon 1 (duty to uphold the integrity and

independence of the judiciary);

(b) Canon 3 (judicial duties); however, a special master

need not comply with Section 3B(9) to the extent this Section

would prohibit the special master from commenting about

pending or impending proceedings that are unrelated to the

proceeding in which he or she is a special master;

(c) Section 4A (extra-judicial activities in general);

(d) Section 4B (avocational activities);

(e) Section 4C(1); however, a special master need not

comply with Section 4C(1) to the extent this Section would

prohibit the special master from appearing at public hearings

or lobbying on matters that are unrelated to the proceeding in

which he or she is a special master;

(f) Section 4D(1)(a) (financial or business dealings that

appear to exploit judicial position);

(g) Section 4E(3) (restrictions on financial activity that

apply personally also apply while acting as fiduciary); and

s Section would

prohibit the special master from appearing at public hearings

or lobbying on matters that are unrelated to the proceeding in

which he or she is a special master;

(f) Section 4D(1)(a) (financial or business dealings that

appear to exploit judicial position);

(g) Section 4E(3) (restrictions on financial activity that

apply personally also apply while acting as fiduciary); and

(h) Section 4I (financial affairs are private except where

disclosure required by law).

(2) In addition, during periods of appointment as a

master, a special master must comply with Section 2A (duty to

avoid impropriety and appearance of impropriety) and 2B

(inappropriate influence and misuse of judicial office).

(3) A person who has been a special master in a

proceeding shall not act as a lawyer in that proceeding or in

any other proceeding related thereto, except as otherwise

permitted by Rule 1.12(a) of the Alaska Rules of Professional

Conduct.

E. Time for Compliance. A person to whom this Code

becomes applicable shall comply immediately with all

provisions of this Code except Sections 4D(2) and 4D(3)

(which pertain to business activities) and Section 4E (which

pertains to fiduciary activities) and shall comply with these

Sections as soon as reasonably possible and shall do so in any

event within the period of one year.

Commentary.—If serving as a fiduciary when selected as a

judge, a new judge may, notwithstanding the prohibitions in

Section 4E, continue to serve as fiduciary but only for that

period of

time necessary

to

avoid

serious

adverse

consequences to the beneficiary of the fiduciary relationship

and in no event longer than one year. Similarly, if engaged at

the time of judicial selection in a business activity that is not

permitted by Section 4D(3), a new judge may, notwithstanding

the prohibitions in Section 4D(3), continue in that activity for a

reasonable period but in no event longer than one year

id

serious

adverse

consequences to the beneficiary of the fiduciary relationship

and in no event longer than one year. Similarly, if engaged at

the time of judicial selection in a business activity that is not

permitted by Section 4D(3), a new judge may, notwithstanding

the prohibitions in Section 4D(3), continue in that activity for a

reasonable period but in no event longer than one year.

(Adopted by SCO 1322 effective July 15, 1998; amended by

SCO 1427 effective April 15, 2001; by SCO 1762 effective

July 1, 2011; by SCO 1768 effective October 14, 2011; and by

SCO 1829 effective October 15, 2014)

TERMINOLOGY

Terms defined below are marked with an asterisk in the

Sections where they appear. In addition, each definition

cross-references the Sections where the defined term

appears.

“Appropriate

disciplinary

authority”

means

the

governmental

or

quasi-governmental

agency

whose

responsibility for initiation of the disciplinary process covers

the violation to be reported. See Sections 3D(1), 3D(2), and

3D(3).

“Bias or prejudice” does not include references to or

distinctions based upon race, color, sex, religion, national

origin, disability, age, marital status, changes in marital status,

pregnancy, parenthood, sexual orientation, or social or

economic status when these factors are legitimately relevant to

the advocacy or decision of the proceeding, or, with regard to

administrative matters, when these factors are legitimately

relevant to the policies or decisions involved. See Sections

3B(5), 3B(6), 3C(1), and 3C(2).

Commentary.—The definition of “bias or prejudice” was

written in an exclusionary manner to allow courts to

countenance legitimate distinctions relevant to litigation

before them. See Section 3B(6).

The definition implies the obvious— that a court demonstrates

impermissible bias or prejudice if it uses constitutionally or

statutorily protected categories as a basis for unfairly

discriminating

ommentary.—The definition of “bias or prejudice” was

written in an exclusionary manner to allow courts to

countenance legitimate distinctions relevant to litigation

before them. See Section 3B(6).

The definition implies the obvious— that a court demonstrates

impermissible bias or prejudice if it uses constitutionally or

statutorily protected categories as a basis for unfairly

discriminating. Bias or prejudice may also arise from other

than legally impermissible categorization and still be

something a court should recognize and avoid.

As the symbols and bastions of justice in our society it is

important for courts to provide their services to all on

essentially the same basis.

“Candidate” means a person seeking any public office. A

person becomes a candidate as soon as he or she makes a

public announcement of candidacy, or declares or files as a

candidate with the election or appointment authority, or

authorizes solicitation or acceptance of contributions or public

support. See Preamble and Sections 5A(1), 5A(2), 5B(1),

5B(2), 5B(2)(b), 5C(1), 5C(2), 5C(3), and 5C(4).

“Candidate for judicial office” means a candidate seeking

selection for or retention in judicial office, whether by election

or appointment. This term is used interchangeably with

“judicial candidate.” See Sections 5A(1)(b), 5A(3), and 5E.

“De minimis interest” means an insignificant interest that

would not lead reasonable persons to question a judge’s

impartiality. See Sections 3E(1)(c) and 3E(1)(d).

“Economic interest” means ownership of a more than de

minimis legal or equitable interest or a relationship as an

officer, director, advisor, or other legal participant in the affairs

of a party, except that:

b), 5A(3), and 5E.

“De minimis interest” means an insignificant interest that

would not lead reasonable persons to question a judge’s

impartiality. See Sections 3E(1)(c) and 3E(1)(d).

“Economic interest” means ownership of a more than de

minimis legal or equitable interest or a relationship as an

officer, director, advisor, or other legal participant in the affairs

of a party, except that:

(i) ownership of an interest in a mutual or common

investment fund that holds securities is not an economic

interest in such securities unless the judge participates in the

management of the fund or a proceeding pending or impending

before the judge could substantially affect the value of the

interest;

(ii) service by a judge as an officer, director, advisor, or

other active participant in an educational, religious, charitable,

fraternal, or civic organization, or service by a judge’s spouse,

parent, or child as an officer, director, advisor, or other active

participant in any organization does not create an economic

interest in securities held by that organization;

(iii) a deposit in a financial institution, the proprietary

interest of a policy holder in a mutual insurance company, of a

depositor in a mutual savings association or of a member in a

credit union, or a similar proprietary interest, is not an

economic interest in the organization unless a proceeding

pending or impending before the judge could substantially

affect the value of the interest;

iii) a deposit in a financial institution, the proprietary

interest of a policy holder in a mutual insurance company, of a

depositor in a mutual savings association or of a member in a

credit union, or a similar proprietary interest, is not an

economic interest in the organization unless a proceeding

pending or impending before the judge could substantially

affect the value of the interest;

(iv) ownership of government securities is not an

economic interest in the issuer unless a proceeding pending or

impending before the judge could substantially affect the value

of the securities.

See Sections 3E(1)(c) and 3E(2).

“Fiduciary” means a person who has undertaken a duty to

conduct financial or other affairs for another person’s benefit.

The term includes any person acting as executor, administrator,

personal representative, trustee, guardian, or attorney in fact

for another. It also includes any other person who, because of

his or her relationship to another person, is obliged to give

paramount consideration to the benefit of that other person and

to abide by duties of care, good faith, and candor in the

conduct of matters falling within the scope of the relationship,

even when doing so conflicts with the self-interest of the

fiduciary. See Sections 3D(2), 3E(1)(c), 3E(2), 4E(1), 4E(2),

and 4E(3).

“Governmental office” means the four types of office a

judge may seek without resigning:

(i) retention in the judge’s current judicial office;

(ii) selection to a different judicial office;

(iii) selection as a delegate to a constitutional convention;

or

ip,

even when doing so conflicts with the self-interest of the

fiduciary. See Sections 3D(2), 3E(1)(c), 3E(2), 4E(1), 4E(2),

and 4E(3).

“Governmental office” means the four types of office a

judge may seek without resigning:

(i) retention in the judge’s current judicial office;

(ii) selection to a different judicial office;

(iii) selection as a delegate to a constitutional convention;

or

(iv) selection to an appointive non-judicial public office.

See Sections 5B(1) and 5B(2).

Commentary.—Canon 5 speaks of judges who are candidates

for government office—both appointive government office

(Section 5B) and elective government office (Section 5C(4)).

However, Section 5A(2) requires judges to resign upon

becoming a candidate for elective non-judicial office. Thus, the

phrase “governmental office” is necessarily limited to the four

types of office a judge may seek without resigning.

“Judicial duties” means all the duties of a judge in

connection with judicial proceedings and acts of the judge in

discharge of disciplinary responsibilities required or permitted

by Section 3D. See Sections 3A, 3B(5), 3B(11), 3D(4), 4A(3),

4D(5)(b), 4E(1), and 4H(2).

“Knowingly,” “knowledge,” “known,” and “knows” mean

that a person is aware of the existence of the fact or

circumstance in question, or is aware of the substantial

probability of its existence. However, a person does not

“know” or have “knowledge” or act “knowingly” if the person

actually believes, despite any indications to the contrary, that

the fact or circumstance does not exist. See Sections 2B, 2C,

3D(1), 3E(1)(a), 3E(1)(c), 3E(1)(d), 5A(l)(b), and 5A(3)(d).

“Law” means court rules as well as statutes, constitutional

provisions, and decisional law. See Sections 2A, 3A, 3B(2),

3B(7), 3B(7)(a), 3C(2), 4B, 4C(1), 4C(2), 4C(3), 4C(3)(b),

4D(5)(a), 4F, 4I, 5B(2)(b), and 5D

y believes, despite any indications to the contrary, that

the fact or circumstance does not exist. See Sections 2B, 2C,

3D(1), 3E(1)(a), 3E(1)(c), 3E(1)(d), 5A(l)(b), and 5A(3)(d).

“Law” means court rules as well as statutes, constitutional

provisions, and decisional law. See Sections 2A, 3A, 3B(2),

3B(7), 3B(7)(a), 3C(2), 4B, 4C(1), 4C(2), 4C(3), 4C(3)(b),

4D(5)(a), 4F, 4I, 5B(2)(b), and 5D.

“Member of the judge’s family” means a spouse, child,

grandchild, parent, grandparent, or other relative or person

with whom the judge maintains a close familial relationship.

See Sections 2B, 3E(1)(c), 4E(1), and 4G.

“Nonpublic information” means information that, by law,

is not available to the public. Nonpublic information may

include but is not limited to: information that is sealed by

statute

or

court

order,

information

impounded

or

communicated in camera, and information offered in grand

jury proceedings, presentencing reports, dependency cases, or

psychiatric reports. See Section 3B(11).

“Political activity” means:

(i) becoming a candidate for elective public office;

(ii) serving as an officer of a political party, a member of

a national, state, or local committee of a political party, an

officer or member of a committee of any other political

organization, or becoming a candidate for any of these

positions;

(iii) serving as a delegate, alternate, or proxy to a political

party convention;

(iv) addressing a convention, caucus, rally, or similar

gathering of a political party in support of or in opposition to a

candidate for public office or political party office;

party, an

officer or member of a committee of any other political

organization, or becoming a candidate for any of these

positions;

(iii) serving as a delegate, alternate, or proxy to a political

party convention;

(iv) addressing a convention, caucus, rally, or similar

gathering of a political party in support of or in opposition to a

candidate for public office or political party office;

(v) organizing or re-organizing a political party or

organization;

(vi) taking part in a political campaign to elect someone

to public office or political party office, to recall someone from

such an office, or to enact or defeat a ballot proposition;

(vii) taking any other part in the management of a political

party or organization, or a political candidate, or a group for or

against a ballot proposition;

(viii) soliciting votes in support of or in opposition to a

candidate’s election to public office or political party office, or

in support of or in opposition to an incumbent’s recall from

such an office, or in support of or in opposition to a ballot

proposition;

(ix) publicly endorsing or opposing a candidate for public

office or political party office, or publicly endorsing or

opposing a ballot proposition, whether in a speech, a published

letter, a political advertisement or broadcast, campaign

literature, or any similar material;

(x) initiating or circulating a nominating petition, recall

petition, or petition to put a ballot proposition before the

voters.

(xi) directly or indirectly soliciting, receiving, collecting,

handling,

disbursing,

or

accounting

for

assessments,

contributions, or other funds for a political purpose;

(xii) organizing, selling tickets to, promoting, or actively

participating in a fund-raising activity of a candidate, political

party, or political organization; or

tion to put a ballot proposition before the

voters.

(xi) directly or indirectly soliciting, receiving, collecting,

handling,

disbursing,

or

accounting

for

assessments,

contributions, or other funds for a political purpose;

(xii) organizing, selling tickets to, promoting, or actively

participating in a fund-raising activity of a candidate, political

party, or political organization; or

(xiii) acting as a recorder, watcher, challenger, or similar

officer at the polls on behalf of a political party or a candidate,

or driving voters to the polls on behalf of a political party or a

candidate, or doing any other act as an official or unofficial

representative of a political party or candidate;

(xiv) but “political activity” does not include:

(a) being a member of a political party;

(b) registering and voting;

(c) expressing one’s opinion in private on political

subjects and candidates;

(d) participating in the non-partisan activities of a civic,

community, social, labor, or professional organization; or

(e) speaking or writing in support of or in opposition to

proposals to change the legal system or the administration of

justice.

See Sections 5B(2), 5C(4), and 5D.

“Political organization” means a party, committee,

association, club, foundation, fund, or any other organization,

whether incorporated or not, whose primary purpose is to:

(i) influence the selection, nomination, election or

appointment of any individual to public office or to office in a

political party, or

(ii) influence the outcome of any recall effort or ballot

proposition, or

nd 5D.

“Political organization” means a party, committee,

association, club, foundation, fund, or any other organization,

whether incorporated or not, whose primary purpose is to:

(i) influence the selection, nomination, election or

appointment of any individual to public office or to office in a

political party, or

(ii) influence the outcome of any recall effort or ballot

proposition, or

(iii) further or defeat proposals to change the law in

matters other than the improvement of the law, the legal

system, or the administration of justice.

See Sections 5A(1)(a), 5A(1)(c), 5A(1)(e), and 5B(2)(b).

The words “shall” and “shall not” mean a binding

obligation on judicial officers, and a judge’s failure to comply

with this obligation is a ground for disciplinary action.

The words “should” and “should not” mean conduct or a

course of action to which judicial officers should aspire, but a

judge’s failure to meet such an aspirational goal is not a

ground for disciplinary action.

“Spouse” includes not only a husband or wife but also any

person with whom the judge maintains a shared household and

conjugal relations. See Sections 3E(1)(c), 3E(l)(d), 3E(2),

4D(5)(a), 4D(5)(b), 4H(1)(b), 4H(3), and 5A(3)(a).

Commentary.—Because the same potential conflicts of

interest and loyalty arise when a judge maintains a shared

household and conjugal relations with another person to whom

the judge is not married, the provisions of Canons 3 and 4

should apply more broadly than simply to legally recognized

spouses. Rather than try to reword each affected provision,

this Code retains the ABA’s use of “spouse” but includes an

expanded definition of spouse in the Terminology Section.

“Third degree of relationship.” The following persons are

relatives within the third degree of relationship: great-

grandparent, grandparent, parent, uncle, aunt, brother, sister,

child, grandchild, great-grandchild, nephew, and niece. See

Section 3E(1)(d).

CJC