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§ 5-205. Canon 5. A judge or judicial candidate shall refrain from inappropriate political activity.

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This rule only applies to cases filed prior to December 31, 2010.

   (A) Standards of Political Conduct in General for All Judges and Candidates.

   (1) Except as authorized in sections 5B(2) and 5C(1), a judge or a candidate* for retention in or appointment to judicial office shall not:

   (a) Act as a leader or hold an office or membership in a political organization*;

   (b) Publicly endorse or publicly oppose another candidate for public office;

   (c) Make speeches on behalf of a political organization;

   (d) Attend political gatherings; or

   (e) Solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.



   A judge or candidate for judicial office retains the right to participate in the political process as a voter. Registering to vote with a party designation does not constitute membership in a political organization.


   Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by section 5A(1) from making the facts public.


   Section 5A(1)(a) does not prohibit a candidate for judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization."


   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.


   Postelection parties held for the purpose of raising political funds are political gatherings for the purposes of section 5A(1)(d).


   (2) A judge shall resign from judicial office upon becoming a candidate* for a nonjudicial office either in a primary or in a general election, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law* to do so.

   (3) A candidate for a 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 of political conduct in support of the candidate as apply to the candidate;



   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 other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the sections of this canon;

   (c) Except to the extent permitted by section 5C(2), shall not authorize or knowingly* permit any other person to do for the candidate what the candidate is prohibited from doing under the sections of this canon;

   (d) Shall not:

   (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

   (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court; or

   (iii) knowingly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent;



  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 should emphasize in any public statement the candidate's duty to uphold the law regardless of the candidate's 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 to commissions charged with judicial selection. See, also, applicable rules of the Nebraska Rules of Professional Conduct.


Amended July 13, 2005, effective September 1, 2005.


   (e) May respond to personal attacks or attacks on the candidate's record as long as the response 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 other governmental office shall not solicit or accept 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 other governmental office shall not engage in any political activity to secure the appointment except that:

   (a) Such persons may:

   (i) except as prohibited by law, communicate with the appointing authority, including any nominating commission;

   (ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for appointment to the office, and from individuals to the extent requested or required by those specified in section 5B(2)(a), and to the extent not prohibited by law;

   (iii) provide to those specified in sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to the candidate's qualifications for the office;

   (b) A nonjudge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law:

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

   (ii) attend political gatherings, and

   (iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other functions.



  Section 5B(2) provides a limited exception to the restrictions imposed by sections 5A(1) and 5D. Under section 5B(2), candidates seeking appointment to another judicial office or other governmental office may apply for the appointment and seek appropriate support.


   Although under section 5B(2), nonjudge candidates seeking appointment to judicial office are permitted during 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 candidacy. See sections 5B(1), 5B(2)(a), 5E, and application.


   (C) Judges Subject to Retention Election.


   (1) A judge or a candidate* subject to retention election may, except as prohibited by law,* when the judge's candidacy has drawn active opposition:

   (a) purchase tickets for and attend political gatherings;

   (b) contribute to a political organization*;

   (c) speak to gatherings on his or her own behalf;

   (d) appear in newspaper, television, and other media advertisements supporting his or her candidacy; and

   (e) distribute pamphlets and other promotional campaign literature supporting his or her candidacy.



  Section 5C(1) permits judges subject to retention election with active opposition to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity.


   (2) A judicial candidate for retention election whose candidacy has drawn active opposition shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A judicial candidate for retention election whose candidacy has drawn active opposition may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums, and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign, and obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate's committees may solicit contributions and public support for the candidate's campaign no earlier than six months before an election and no later than 30 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.




   Section 5C(2) permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and reasonable financial contributions. At the start of the campaign, the candidate must instruct his or her campaign committees 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 postelection fundraising, to the extent possible.


   Unless the candidate is required by law to file a list of campaign contributors, the contributors' names should not be revealed to the candidate.


   (D) Permissible Political Activity for Incumbent Judges. A judge shall not engage in any political activity except

   (1) as authorized under any other section of this Code;

   (2) on behalf of measures to improve the law,* the legal system, or the administration of justice; or

   (3) as expressly authorized by law.



  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 comments to section 4B; see, also, section 4C(1) and its comments.


   (E) Applicability.


   Canon 5 generally applies to all incumbent judges and judicial candidates.* A successful candidate, whether or not an incumbent, is subject to judicial discipline for the candidate's campaign conduct. An unsuccessful candidate who is a lawyer is subject to lawyer discipline for the candidate's campaign conduct. A lawyer who is a candidate for judicial office is subject to the Nebraska Rules of Professional Conduct §§ 3-501.0 to 3-508.5.

This page was last modified on Wednesday, May 8, 2013