
    1998 OK JUD ETH 19
    JUDICIAL ETHICS OPINION 1998-19.
    No. 1998-19.
    Oklahoma Judicial Ethics Advisory Panel.
    Decided Oct. 12, 1998.
    Filed Oct. 26, 1998.
   QUESTION: Canon 5(D) provides: “An incumbent Judge or Justice who is a candidate for retention in or re-election to office without a competing candidate, and whose candidacy has drawn active opposition, may campaign in response thereto and may obtain publicly stated support in campaign funds in the manner provided herein.”

Under the Code of Judicial Conduct, when is it appropriate for such a candidate to begin a campaign for retention?

WE ANSWER: A candidate for retention for judicial office may commence a campaign when the candidacy has drawn active opposition. Of course, the real question is: What is the meaning of “active opposition” as used in Canon 5 of the Code of Judicial Conduct. That is a fact specific question that must be analyzed and answered depending on the particular facts in each situation.

The Canons do not explain the meaning of “active opposition.” At least one Ethics Panel has responded to the question, Arizona, J.E.A.C., OP. 78-1(1978), by stating that such a candidate may begin a campaign as soon as he or she, “reasonably believes that he or she will have substantial opposition regardless of how early it may be.”

The obvious answer is that the meaning of “active opposition” is a subjective matter left to the wisdom and reasonable inferences of the candidate. A candidate for retention should not be left in the vulnerable position of doing nothing until specific and definite proof of active opposition is obtained. A well organized campaign against a candidate for retention could be publicly launched only a few weeks before election day, although it is doubtful that such a campaign could be organized without some inkling of it being made known.

A candidate for retention in judicial office who reasonably suspects that there will be active or substantial opposition to the candidacy, may begin a campaign subject to the other rules set out for candidates in Canon 5.

/s/ Robert L. Bailey, Chairman

/s/ Robert A. Layden, Vice Chairman

/s/ Milton C. Craig, Secretary  