F 

RENDERED: FEBRUARY 18, 2016 

TO BE PUBLISHED 

oSuprrittr Caurf TArttfurhu 

2015-SC-000086-CL 

IN RE: 

ROBERT A. WINTER, JR., PLAINTIFF 

AND 

CAMERON BLAU AND 

HONORABLE ALLISON JONES, 

INTERVENING PLAINTIFFS 

THE UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION 

COVINGTON, CIVIL NO. 14-119-ART 

HONORABLE STEPHEN D. WOLNITZEK, 

IN HIS OFFICIAL CAPACITY AS CHAIR, 

JUDICIAL CONDUCT COMMISSION, ET AL. 

OPINION OF THE COURT BY JUSTICE VENTERS 

CERTIFYING THE LAW 

Pursuant to CR 76.37(1), we granted the certification request of the 

United States District Court for the Eastern District of Kentucky (District 

Court), to provide the answer under Kentucky law to the following three 

questions and the associated sub-questions: 

Question 1: 

Canon 5A(1)(a) states that a judge or judicial candidate shall not 

"campaign as a member of a political organization." What 

constitutes "campaign[ing] as a member of a political 
organization"? As applied to this case, would it include a 

candidate's statements in mailers identifying his political party, 

such as "I am the only Republican candidate for Judge" or "I am 

the Conservative Republican candidate for Judge"? Would a 

candidate's statement that his opponent was "the Democrat 

candidate for Judge" or the "Liberal Democrat for Judge" violate 

the Canon? 

Question 2: 

Canon 5A(1)(b) states that a judge or judicial candidate shall not 

"act as a leader or hold any office in a political organization." What 

constitutes "act[ing] as a leader or hold[ing] any office"? As applied 

to this case, would hosting events for a political party violate the 

Canon? 

Question 3: 

Canon 5B(1)(c) states that a judge or judicial candidate "shall not 

knowingly, or with reckless disregard for the truth, misrepresent 

any candidate's identity, qualifications, present position, or make 

any other false or misleading statements." What constitutes a false 

statement? As applied to this case, would it include a candidate 

who asks voters to "re-elect" her to a second term even though she 

was appointed to her first term? 

These canons were promulgated by this Court with the objective of 

complying with Section 117 of our Constitution requiring that "Justices of the 

Supreme Court and judges of the Court of Appeals, Circuit and District Court 

shall be elected from their respective districts or circuits on a nonpartisan basis 

as provided by law." (Emphasis added.) We interpret this provision of the 

Kentucky Constitution as directing that Kentucky's judicial elections be 

nonpartisan in truth and substance, and not merely in process and procedure 

by the superficial omission of a political party designation on the voting ballot. 

Accordingly, we provide the following certification of Kentucky law in response 

to the District Court's questions. 

2 
I. FACTUAL AND PROCEDURAL BACKGROUND 

Robert A. Winter, Jr., filed to run in the May 2014 primary election as a 

candidate for circuit court judge in the 16th Judicial Circuit (Campbell 

County). As part of his campaign strategy, Winter mailed brochures to 

registered Republican voters identifying himself as a registered Republican 

and, conversely, identifying his opponents as registered Democrats. After the 

brochures were sent out, the Kentucky Judicial Conduct Commission (JCC) 

notified Winter that it had received complaints that his brochures violated the 

Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing 

suit in the District Court against the JCC challenging the constitutionality of 

Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning 

as a member of a political organization) and 5B(1)(c) (prohibiting judges or 

judicial candidates from making "false" or "misleading" statements). 

During the same election cycle, Cameron Blau entered the race as a 

candidate for district court judge in the 17th Judicial District (Campbell 

County). Because Blau likewise intended to openly campaign as a Republican 

and send brochures likewise identifying himself as a Republican, in October 

2014, Blau filed an intervening complaint to join Winter's challenge to Canons 

5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the 

constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a 

leader or hold any office in a political organization"). In his complaint, Blau 

stated that he wanted to send out brochures to potential voters identifying 

himself as "the only Republican candidate for Judge," or "the Conservative 

3 
Republican candidate for Judge" and identifying his opponent as "the 

Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated 

in his complaint that he wanted to seek the endorsement of the local 

Republican Party, host events for the local Republican Party, and make 

political donations to members of the Republican Party.' In a lengthy order 

preliminarily addressing the constitutionality of the canons under review (the 

Injunction Order), the District Court concluded that there was a likelihood that 

each of the canons at issue was unconstitutional, and granted Blau's motion to 

prevent the JCC from enforcing the canons against him in the November 2014 

election. 

Allison Jones was appointed by Governor Steve Beshear to the Kentucky 

Court of Appeals in July 2013. To retain the office to which she was appointed, 

Jones became a candidate in the November 2014 General Election. In October 

2014, the JCC received a complaint alleging that Judge Jones had made false 

and misleading statements in speeches and campaign materials. The "false 

and misleading statements" referred to Jones' use of the word "re-elect" to 

describe her effort to retain the judicial position to which she had been 

appointed rather than "elected." Jones then intervened in Winter's District 

Court action, contending that Canon 5B(1)(c) (prohibiting false statements) was 

unconstitutional. The only issue presented in Jones' portion of the case is 

whether an incumbent judge who was appointed to office may properly use the 

1Blau also raised constitutional challenges to other judicial canons not at issue 

in the questions of law presently before us. 

4 
word "re-elect" to describe her effort to retain the office to which she was 

appointed but not elected. 

It is within the context of this litigation that the District Court requested 

that we certify the law on the questions addressed herein. 

II. GENERAL CONSIDERATIONS 

We begin with a few general considerations that guide our examination of 

the questions presented by the District Court. First, pursuant to the Kentucky 

Constitution, all judges and justices at every level of the state judiciary are 

selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we 

recognize that the judicial canons we address in this decision were designed to 

serve the state's compelling interest of encouraging an unbiased and impartial 

judiciary for the Commonwealth, and that the Commonwealth's interest is 

offset by restricting the political speech of only the few who volunteer to be a 

candidate for office, not their supporters, advocates, and non-candidate 

adversaries. 

The ultimate objective of our system of judicial selection is to achieve a 

delicate balance. On one side of the scales, we must foster and protect the 

people's prerogative to choose by direct vote the judges that preside locally and 

statewide. On the other side of the scales, we must create a political 

environment in which judges selected by the citizens are not tethered, or 

beholden to partisan political factions and their associated creeds. And, we 

must do so in a way that preserves the judiciary as an institution that is not 

partial to or biased against any political faction. 

5 
The federal judicial system achieves this balance by an effective but 

different approach. Rather than selecting judges by popular election, the 

federal system selects judges by the collaborative effort of the political 

branches, the executive and the legislative, based upon any and all factors 

including the nominee's political ties, beliefs, and political ideologies. The 

federal system achieves its assurance that judges are not beholden to political 

interests and factions by appointing them for life. With the lifetime tenure, 

federal judges are liberated from any ties or allegiance to the political factions 

that supported their ascension, and that might otherwise seek to influence 

them. 

The federal system secures the government's vital interest in an 

independent judiciary at the expense of the people's ability to choose and 

replace their judges. Kentuckians, like the citizens of most states, chose to 

achieve the same balance by alternate means. We have judges who must earn 

the public's respect and maintain the public's confidence by periodically 

entering and re-entering the arena of elective politics. Kentucky, like most 

states, assures the impartiality and integrity of the judiciary, not with a lifetime 

appointment, but through moderate restrictions on partisan activities set out 

in canons of conduct. The judicial canons at issue in this case perform the 

same function of keeping judges free from the potentially corruptive influences 

and appearances of partisan politics accomplished in the federal system by the 

lifetime tenure of judges. As such, the canons that make up our Code Judicial 

6 
Conduct advance a laudable and necessary goal that serves a vital interest of 

this Commonwealth. 

In the discussions of the judicial canons at hand, we are mindful that the 

public's trust in, and respect for, its judiciary is at stake. We accordingly are 

constrained to undertake a narrow view of those canons as we answer the 

questions posed by the District Court. At the same time we provide an 

interpretation that complies with controlling First Amendment case authorities, 

strict scrutiny, and other relevant, constitutional principles relating to 

vagueness, overinclusiveness, and underinclusiveness. 

III. STANDARDS OF REVIEW 

Our canons of judicial conduct are set forth in Supreme Court Rule 

(SCR) 4.300. The preamble to the canons states in part: 

The Code of Judicial Conduct is intended to establish standards 

for ethical conduct of judges. It [of necessity] consists of broad 

statements . . . . 

The Canons and Sections are rules of reason. They should be 

applied consistent with constitutional requirements, statutes, 

other court rules and decisional law and in the context of all 

relevant circumstances . . . . 

This litigation concerns the restrictions on the speech of judicial 

candidates in judicial elections. Because the First Amendment 2reviles 

2The First Amendment provides that Congress "shall make no law . . . 

abridging the freedom of speech." The Fourteenth Amendment makes that prohibition 

applicable to the States. Stromberg v. California, 283 U.S. 359, 368 (1931). 

7 
restrictions on core political speech, 3such restrictions are subject to the strict 

scrutiny standard. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665 

(2015). 4Under the strict scrutiny standard, "[a] State may restrict the speech 

of a judicial candidate only if the restriction is narrowly tailored to serve a 

compelling interest." Id. Prior authorities have identified and held that there is 

a compelling governmental interest in encouraging an unbiased and impartial 

judiciary and in maintaining the integrity of the judiciary. See id. at 1666 

(States have a compelling interest in preserving public confidence in the 

integrity of the judiciary). Those are precisely the interests addressed in the 

canons under review. 

We interpret the law, including the judicial canons now under review, by 

applying the plain and ordinary meaning of relevant text. Pearce v. University 

of Louisville, by & through its Board of Trustees, 448 S.W.3d 746, 749 (Ky. 

2014). 5We fundamentally undertake to construe the law so as to avoid an 

unconstitutional result. Caneyville Volunteer Fire Department v. Green's 

Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009); Ballinger v. 

3Speech concerning public issues and the qualifications of candidates for 

elective office commands the highest level of First Amendment protection. See Eu v. 

San Francisco County Democratic Central Committee., 489 U.S. 214, 223 (1989). 

4This holding appears in Section II of Williams-Yulee, which was joined by only 

four Justices. However, the four dissenters likewise agree that strict scrutiny is the 

proper standard of review of laws constraining judicial campaign speech. Accordingly, 

it is now definitively established that strict scrutiny is the proper standard of review in 

judicial electioneering cases. 

5Of course, there is an obvious difference between our interpretation of 

legislative acts, in which our principal objective is to determine the intent of another 

body; here, the judicial canons we interpret were promulgated by this Court, and thus 

in this sense we are interpreting our own work. 

8 
Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015) (citations omitted). Of course 

this fundamental rule of construction also applies to the interpretation of the 

rules we promulgate. Summe v. Judicial Retirement and Removal Commission, 

947(S.W.2d 42, 47 (Ky. 1997). Moreover, we accede to the decisions of the 

federal courts addressing important First Amendment issues relating to judicial 

candidate electioneering. Because recent federal decisions guide our 

interpretation of the canons at issue, we begin with a brief overview of their 

central holdings. 

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the 

Supreme Court struck down a Minnesota judicial canon which prohibited 

candidates for judicial election from announcing their views on disputed legal 

or political issues. Proponents of the canon argued that it survived the strict 

scrutiny test because it served the compelling governmental interest of 

preserving the appearance of an impartial judiciary. The Court, however, 

concluded that the canon failed the strict scrutiny test because it did not 

advance the proffered interest. The Court held that the canon did not preserve 

the appearance of an impartial judiciary because it did not restrict speech 

advocating for or against particular parties or political factions; rather, it 

restricted candidates from expressing their own personal opinions on popular 

issues. The Court found no compelling state interest in suppressing judicial 

candidates' views on such issues. 6 

6 See also J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991) (Panel of Special 

Justices) (Code of Judicial Conduct provision prohibiting all discussion of judicial 

9 
In Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 

(E.D. Ky. 2004), the District Court considered Kentucky's Judicial Canon 

5B(1)(c), which provided, in relevant part, that a judge or candidate to judicial 

office "shall not make pledges or promises of conduct in office other than the 

faithful and impartial performance of the duties of the office; [and] shall not 

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[.]" In 

striking down the canon, the District Court held that the canon was 

unconstitutionally overbroad in that it was not limited to a ban on promises or 

commitments by candidates to rule a certain way on cases likely to come before 

them (which would be sustainable as furthering a compelling government 

interest in securing judicial open mindedness), and it consequently stifled the 

right of judges and candidates to speak out on issues and the corresponding 

right of voters to hear their views. Consistent with that determination the 

decision further held that judicial candidates cannot be prohibited from 

responding to election issue questionnaires inquiring into their positions on 

public issues. 

In Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010), the Sixth Circuit 

Court of Appeals held that a former version of Kentucky Judicial Canon 5A(2), 

which prohibited judges and judicial candidates from disclosing their party 

candidate's views on disputed legal or political issues unnecessarily violated 

constitutional free speech rights of judicial candidates). 

10 
affiliation in any form of advertising, or when speaking to a gathering, except in 

answer to a direct question by a voter in one-on-one or very small private 

informal settings, was unconstitutional because it was not narrowly tailored to 

advance the Commonwealth's interest in preventing a biased judiciary, or 

diminishing the role of political parties in judicial selection, and thus the canon 

facially violated free speech and associational rights. The Sixth Circuit 

reasoned that by prohibiting candidates from disclosing their party affiliations, 

the clause effectively prevented candidates from announcing their individual 

views on many issues to the extent that a party identification signals the 

judicial candidate's alignment with the views incorporated into a political 

party's platform. The decision further held that the canon was underinclusive 

for these additional reasons: the identification of the candidate's party 

affiliation was forbidden only when the candidate raised the point and could 

otherwise be disclosed by the candidate's supporters; judicial candidates were 

not restrained from disclosing their memberships or affiliations with other 

types of organizations that advocated political opinions, such as the Federalist 

Society or the ACLU, which may be more telling than one's actual party 

identification itself; and the canon did not prohibit judicial candidates from 

being members of a political party. Rather, it only prohibited them from 

announcing their particular party membership.? 

7 Carey also held that our canon prohibiting a judicial candidate from 

personally soliciting funds was unconstitutional; however, that holding has been 

superseded by Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding 

restrictions on a judicial candidate's personal solicitation of campaign funds). 

11 
Most recently, and perhaps most importantly, the Supreme Court 

decided in Williams-Yulee that a Florida judicial canon restricting a judicial 

candidate's personal solicitation of campaign funds was constitutional because 

it was narrowly tailored to serve the compelling governmental interest in 

obviating the indecorous practice of an attorney who regularly practiced before 

a judge, or a litigant with a case pending before a judge, personally handing 

cash to the judge or being placed in the untenable position of rebuffing the 

judge's personal solicitation. See also Caperton v. A.T. Massey Coal Co., Inc., 

556 U.S. 868, 889 (2009) (holding that there is serious risk of actual bias, 

based on objective and reasonable perceptions, when a person with a personal 

stake in a particular case has significant and disproportionate influence in 

placing a judge on the case by raising funds, or by directing a judge's election 

campaign, when the case was pending or imminent). 

With the above standards and constitutional limitations in mind, we now 

turn to the particular questions posed by the District Court in its certification 

of law request. 

IV. QUESTION I - CANON 5A(1)(A) 

The District Court's first question seeks certification of a broadly-stated 

question along with two more specific subparts. Canon 5A(1)(a) states as 

follows: 

Canon 5. A judge or judicial candidate shall refrain from 

inappropriate political activity. 

A. Political Conduct in General. 

12 
(1) Except as permitted by law, a judge or a candidate for election 

to judicial office shall not: 

(a) campaign as a member of a political organization[.] 

(Emphasis added.) The section is further clarified by the following official 

commentary: 

A judge or a candidate for election to judicial office retains the right 

to participate in the political process as a voter. A judge or a 

candidate for election to judicial office may publicly affiliate with a 

political organization but may not campaign as a member of a 

political organization. 

Because the specific prohibition contained in Canon 5A(1)(a) (shall not . . 

. campaign as a member of a political organization) is limited by the 

introductory clause "except as permitted by law," our interpretation of the 

section is guided by the various First Amendment court decisions addressing 

judicial campaign issues as referenced above. 

A. Answer to Question 1: What constitutes "campaign[ing] as a 

member of a political organization"? 

The Terminology Section of SCR 4.300 defines a "political organization" 

as "denot[ing] a political party or other group, the principal purpose of which is 

to further the election or appointment of candidates to political office." The 

Democrat and Republican parties clearly fall within this definition. Carey held 

that a judicial candidate cannot be restrained from identifying himself as a 

member of a political party, and our current version of Canon 5 was 

promulgated in response to that decision. It follows that the canon does not, 

and indeed could not, reach that activity. In summary, a judicial candidate 

may identify himself to the public as a member of a political party. Carey v. 

13 
Wolnitzek, 614 F.3d 189; Commentary to Canon 5 ("a candidate for election to 

judicial office may publicly affiliate with a political organization"). 

Nevertheless, there is a vast difference between the permissible speech of 

a judicial candidate identifying herself as a member of a political party and the 

impermissibly deceptive conduct of representing herself as the nominee of a 

political party. The former statement would be true; the latter is by any 

standard, blatantly false. Canon 5A(1)(a) draws that distinction. 

The Canon 5 provision proscribing "campaigning as a member of a 

political organization" prohibits the dissemination of campaign materials and 

other public representations suggesting to the voters that the candidate is the 

endorsed judicial nominee of a political party. For example, a campaign 

representation such as "I am the Republican candidate for the 16th Judicial 

Circuit Court" is impermissible. There is no "Republican candidate" for that 

office; the assertion is materially false and misleading. See Canon 5B(1)(c) 

(prohibiting materially false statements). Political parties and factions do not 

select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a) 

merely recognizes and faithfully codifies this Constitutional reality. 

B. Answer to Question 1A: As applied to this case, would it include a 

candidate's statements in mailers identifying his political party, 

such as "I am the only Republican candidate for Judge" or "I am the 

Conservative Republican candidate for Judge"? 

As noted above, pursuant to Carey, prohibiting a judicial candidate from 

identifying himself as a member of a political party is unconstitutional and the 

present version of Canon 5A(1)(a) was drawn to comply with Carey. Therefore, 

the statement "I am the only Republican candidate for Judge" is permissible, as 

14 
long as it is true, because the message merely identifies the candidate as a 

Republican who is a candidate for judge, albeit the only one. It does not imply 

that the candidate is the nominee of the Republican Party, which would be 

prohibited. 

In contrast, the statement "I am the Conservative Republican candidate 

for Judge," transmits the message that the candidate is the formal nominee for 

the Republican Party. As discussed above, this is an impermissible depiction 

by the candidate of his status in the judicial race; the insertion of the modifier 

"Conservative" into the statement does not, in our view, dispel the 

disingenuousness of the statement. Under the current state of affairs of 

modern American politics, the Republican Party is commonly regarded as 

occupying the conservative side of the political spectrum, and so the addition of 

the modifier "Conservative" is surplusage, doing nothing to dispel the implied 

falsehood that the candidate is running for Kentucky judicial office as the 

formal candidate of the Republican Party. 

C. Answer to Question 1B: Would a candidate's statement that his 

opponent was "the Democrat candidate for Judge" or the "Liberal 

Democrat for Judge" violate the Canon? 

The statement by a candidate that his opponent is "the Democrat 

candidate for Judge" is an impermissible message to the voters. His opponent 

is not, in fact, the Democrat candidate for Judge. As previously explained, 

such candidates do not exist in Kentucky, and such a campaign message 

would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting 

materially false statements). 

15 
Similarly, a statement by a candidate that his opponent is "the Liberal 

Democrat for Judge" is likewise impermissible. For the identical reasons 

discussed above, the modern Democratic Party is widely acknowledged as 

falling within the liberal segment of the political spectrum. There is no 

meaningful difference between stating that someone is "the Liberal Democrat 

for Judge" as opposed to "the Democrat for Judge." Both phrasings imply the 

false and misleading message that the opponent is the Democratic Party 

nominee for judge. 

D. Summary 

In summary, judicial candidates may "affiliate," 8that is "portray" 

themselves as members of a political party without restriction; what they may 

not do under Canon 5A(1)(b), in tandem with Canon 5B(1)(c), is portray 

themselves, either directly or by implication, as the official nominee of a 

political party. 

V. QUESTION 2 - CANON 5A(1)(B) 

The second question concerns Canon 5A(1)(b). This Canon states as 

follows: 

Canon 5. A judge or judicial candidate shall refrain from 

inappropriate political activity. 

A. Political Conduct in General 

(1) Except as permitted by law, a judge or a candidate for election 

to judicial office shall not: 

8 Merriam-Webster defines "affiliate" as "to closely connect (something or 

yourself) with or to something (such as a program or organization) as a member or 

partner[.1" http://www.merriam-webster.corn/dictionary/affiliate (January 2016). 

16 
(b) act as a leader or hold any office in a political organization. 

A. Answer to Question 2: Canon 5A(1)(b) states that a judge or judicial 

candidate shall not "act as a leader or hold any office in a political 

organization." What constitutes "act[ing] as a leader or hold[ing] 

any office"? 

"Holding any office" in a political organization means occupying a formal 

position with a recognized title or performing a function within the established 

organizational structure of an association whose principal purpose is to further 

the election or appointment of candidates to political office. An "office" in such 

an organization includes recognized titles such as chairman, director, 

secretary, treasurer, press secretary, precinct leader, membership recruiter, 

youth coordinator, and the like. 

"Acting as a leader" encompasses a less formal but broader range of 

participation. Matter of Disciplinary Proceeding Against Blauvelt, 801 P.2d 235, 

238 (1990), 9notes that Webster's Third New International Dictionary 1283 

(1986), defines leader, among other ways, as "a person who by force of 

example, talents, or qualities of leadership plays a directing role, wields 

commanding influence, or has a following in any sphere of activity or thought." 

"Acting as a leader," therefore, captures efforts to advance the political agenda 

of the party in a less formal way through proactive planning, organizing, 

9 Blauvelt addressed a judicial canon substantially identical to Canon 5A(1)(b) 

and held that a judge serving as a delegate to political party's county convention was a 

"leader" within meaning of the canon's prohibition against a judge acting as a "leader" 

in a political organization. 

17 
directing, and controlling of party functions with the goal of achieving success 

for the political party. These less formalized, leader-without-title, positions 

would include, for example, acting formally or informally as a party 

spokesperson; organizing, managing, or recruiting new members; organizing or 

managing campaigns; fundraising; and performing other roles exerting 

influence or authority over the rank and file membership albeit without a 

formal title, including as further discussed below, hosting political events. 

B. Answer to Question 2A: As applied to this case, would hosting 

events for a political party violate the Canon? 

Consistent with the definition of "acting as a leader," as just discussed, 

one who hosts an event for a political party is "acting as a leader" for the party. 

Merriam-Webster defines "host" as: "1 a: one that receives or entertains guests 

socially, commercially, or officially; b: one that provides facilities for an event or 

function . . . ." 1- 0Therefore, someone who provides the facilities for an event of 

a political party or officially receives the political party attendees is, indeed, 

acting as a "leader" of a political party. The "host" of an event, political or 

otherwise, uses the prestige of his or her name to promote the event and exerts 

a significant measure of control and authority over the event, more so, in our 

view, than the more passive political delegate function in Blauvelt. Perforce, a 

judicial candidate hosting a political event acts as a leader of that event and is, 

in turn, acting as a leader of the political party on whose behalf the political 

event is being held. Under Canon 5A(1)(b) that is prohibited conduct. 

10http://www.merriam-webster.com/dictionary/host (January 2016). 

18 
VI. QUESTION III - CANON 5B(1)(C) 

The final questions posed by the District Court concern the misleading 

speech prohibition by a judicial candidate contained in Canon 5B(1)(c). Canon 

5B(1)(c) provides, in relevant part, as follows: 

B. Campaign Conduct. 

(1) A judge or candidate for election to judicial office: 

(c) shall not . . . with reckless disregard for the truth, misrepresent 

any candidate's identity, qualifications, present position, or make 

any other false or misleading statements. 

A. Answer to Question 3: Canon 5B(1)(c) states that a judge or judicial 

candidate "shall not knowingly, or with reckless disregard for the 

truth, misrepresent any candidate's identity, qualifications, present 

position, or make any other false or misleading statements." What 

constitutes a false statement? 

A falser statement is a statement that is not factually true in the normal 

sense; that is, an untrue utterance. For example, it would include such 

statements as: "I graduated first in my class" when the candidate did not; "I 

have won all of my cases as an attorney" when the candidate had not; "I was an 

officer in the military" when the candidate was not; or "my opponent was 

convicted of a drug offense" when the opponent was not. 12 

11 Merriam-Webster defines false as "not real or genuine: not true or accurate; 

especially: deliberately untrue: done or said to fool or deceive someone." 

http:/ / www.merriam-web sten com/ +dictionary/ false (January 2016) . 

12In United States v. Alvarez, 132 S. Ct. 2537 (2012), the Supreme Court held 

that false statements generally are not a category of unprotected speech exempt from 

the normal prohibition on content-based restrictions. Id. at 2547 (striking down a 

federal statute which prohibited lying about military awards). (Per opinion of Justice 

Kennedy, with three Justices concurring and two Justices concurring in the 

19 
The provision does not, however, cover expressions of opinion because 

expressions of an opinion do not implicate a statement that is not factually 

true. For example such statements as "Justice Stevens was the best Justice 

ever"; "Citizens United was the best decision ever"; or "my opponent is too 

liberal" are all expressions of opinion and not subject to Canon 5B(1)(c). 

In summary, Canon 5B(1)(c) extends only to statements made during a 

campaign which are objectively factually untrue and do not extend to 

expressions of subjective opinions or innocuous campaign-trail "puffing" ("I am 

the most qualified candidate in the state."). 

B. Answer to Question 3A: As applied to this case, would it include a 

candidate who asks voters to "re-elect" her to a second term even 

though she was appointed to her first term? 

The prefix "re" affixed to a verb implies that the action described in the 

verb has occurred on a previous occasion. 13For example, if a television 

network announces that it will rerun a particular program, it has implicitly but 

definitively asserted that the program had been run on a prior occasion; it is 

implied that a soldier who re-enlists in the army had enlisted in the military on 

a prior occasion; and something can be reasserted only if it has previously 

been asserted. 

judgment). However, the Court pointedly exempted from the scope of the decision 

laws aimed at "maintain[ing] the general good repute and dignity of . . . government . . 

. service itself." Id. at 2546 (citing United States v. Lepowitch, 318 U.S. 702, 704, 63 S. 

Ct. 914, 87 L.Ed. 1091 (1943)). Because the canons we address fall squarely within 

this exception, we are persuaded that Alvarez does not apply here. 

13 See generally http://www.merriam-webster.com/dictionary/re (January 

2016). 

20 
Given this universally accepted convention of the English language, a 

candidate's request for voters to re-elect her to a judicial office is an affirmative 

assertion that she had been elected by voters to the same office on a prior 

occasion. A judge who holds her office by way of a gubernatorial appointment 

cannot honestly claim that she was elected to the office, and if she seeks to 

retain the office at the next election, she cannot honestly assert that she seeks 

to be re-elected. Such an assertion would be a materially false statement, 

deceptive to the public, and would run afoul of Canon 5B(1)(c). 

The opponents of the canon cite to various court decisions and news 

articles where the term "re-elect" was used to describe a judge who was seeking 

to retain an office attained by appointment rather than election. Using the 

term in news articles and other narratives to chronicle historic events is an 

informal and idiomatic phrasing, but it is nonetheless inaccurate. 

In contrast, when an incumbent judge uses the word "re-elect" as 

campaign stratagem to persuade the public that she acquired the office by the 

popular vote of the people rather than as the appointee of a governor, its use is 

calculated to mislead and deceive the voters. Accordingly, we distinguish these 

informal, idiomatic usages and regard these journalistic references as 

irrelevant to our review. 

VII. CONSTITUTIONAL REVIEW 

The closing step to interpreting a statute or other legal authority, such as 

the canons interpreted herein, is undertaking a final examination to ascertain 

that our interpretation complies with any existing constitutional mandates. We 

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have undertaken that review and are satisfied that our interpretations as 

expressed above fall well within the requirements of White, Carey, WilliamsYulee, and other applicable First Amendment authorities. 

Nevertheless, we are attentive that in its Injunction Order, the District 

Court expressed its skepticism regarding the constitutionality of each of the 

canons under review. In response to that skepticism, we emphasize that we 

are persuaded that Williams-Yulee resolves the District Court's criticism in 

favor of the interpretations expressed herein. For example, the District Court 

criticizes our campaign limitation, expressed in Canon 5A(1)(a), as being 

underinclusive 14because it fails to address the practical reality that, in lieu of 

the candidate directly portraying himself as the favored candidate of a political 

party, his supporters and surrogates may undertake that same function. The 

District Court is correct; we do not purport to limit the campaign conduct of 

supporters and surrogates. But the Court's criticism ignores the fact that the 

compelling interest served by our canon is to insulate the judge personally from 

behaviors that directly undermine the impartiality and objectivity of the 

Kentucky Court of Justice. That others outside the judiciary may pursue these 

political objectives on behalf of the judge or judicial candidate does not in any 

way diminish our objective. If anything, it is a factor that favors the 

constitutionality of our canon by emphasizing its limited impact on political 

14 "[U]nderindusiveness can raise 'doubts about whether the government is in 

fact pursuing the interest it invokes, rather than disfavoring a particular speaker or 

viewpoint.' Williams-Yulee, 135 S. Ct. at 1668. 

22 
discourse. The objective is not to keep information hidden from the public; the 

objective is to keep the judge from compromising his or her integrity and 

impartiality by engaging in deceptive and misleading conduct. 

Williams-Yulee presented a very similar situation. While the Florida rules 

prohibited a judge from personally soliciting funds, responsible representatives 

were permitted to do so on her behalf. Against the underinclusiveness 

argument, the United States Supreme Court noted: "A State need not address 

all aspects of a problem in one fell swoop; policymakers may focus on their 

most pressing concerns. We have accordingly upheld laws—even under strict 

scrutiny—that conceivably could have restricted even greater amounts of 

speech in service of their stated interests." 135 S. Ct. at 1668. By the same 

force of reasoning, our Canon 5A(1)(a) is not underinclusive; 15nor are the other 

judicial canons we have discussed. 

The District Court likewise criticizes our canons as overbroad in that 

they may be construed to extend beyond the range of prohibitable speech and 

reach non-prohibitable speech. 16In drafting our canons, we strived to avoid 

overbreadth and the clarifications expressed herein should obviate that 

concern. In any event, Williams-Yulee addressed the same point and the same 

15And further, of course we have no jurisdiction over the judicial candidate's 

supporters and surrogates; however that does not mean we are powerless over those 

whom we do have jurisdiction from misleading the public into believing that they are 

the officially sanctioned nominee of a political party. 

16The overbreadth doctrine "is predicated on the danger that an overly broad 

statute, if left in place, may cause persons whose expression is constitutionally 

protected to refrain from exercising their rights for fear of criminal sanctions." 

Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). 

23 
compelling interests were at stake. There, the Supreme Court observed that 

"The First Amendment requires that [the personal solicitation canon] be 

narrowly tailored, not that it be 'perfectly tailored.' The impossibility of perfect 

tailoring is especially apparent when the State's compelling interest is as 

intangible as public confidence in the integrity of the judiciary." 135 S. Ct. at 

1671 (citation omitted). The same principle applies in this situation as we 

strive to protect the democratic ideal of citizens choosing their judges and, at 

the same time, preserve the neutrality of the judicial branch by insulating 

judges from detrimental influences of partisan politics. Perhaps we have not 

achieved the ideal-but-elusive "perfect tailoring," but nevertheless our tailoring 

comports with the standard prescribed in Williams-Yulee. 

The District Court also suggests in its Injunction Order that the canons 

at issue are unconstitutionally vague; 17however, as we discuss herein, a plain, 

ordinary, and common sense application of the language of the canons gives 

accurate guidance to a judicial candidate of what he may or may not do in a 

political campaign: he may not campaign as the nominee of a political party; he 

may not act as an office holder or leader, in the traditional sense of those 

terms, of a political party and he may not lie to the public on the campaign 

trail, although he is free to otherwise express his opinion on matters relating to 

himself, his opponent, and matters of public interest. It bears emphasis as 

17"[The void-for-vagueness doctrine requires that a penal statute define the 

criminal offense with sufficient definiteness that ordinary people can understand what 

conduct is prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). 

24 
well that Kentucky's Judicial Conduct Commission maintains an ethics 

advisory structure which is available to judicial candidates seeking specific 

advice or guidance on campaign matters. 

VIII. CONCLUSION 

The law as set forth above is hereby certified to the United States District 

Court for the Eastern District of Kentucky. 

All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Venters, JJ., 

concur. Noble, J., concurs in part and dissents in part by separate opinion in 

which Wright, J., joins. 

NOBLE, J., CONCURRING IN PART AND DISSENTING IN PART: I concur 

with Justice Venters' excellent analysis on all the issues in this case except for 

his answer to question IA, as to whether the statement "I am the only 

Republican candidate for judge" is permissible. I do not think it is. In the same 

discussion, he concludes that it is NOT permissible to say, "I am the 

conservative Republican candidate for judge." Both the term "only" and the 

term "conservative" are modifiers and immediately precede the phrase 

"Republican candidate." Thus, whatever the modifier may be, both sentences 

are discussing "the...Republican candidate." As the majority explains, 

Republicans (Democrats) do not have a party candidate in non-partisan judicial 

elections, and saying that one is "the Republican candidate" is inappropriate 

and misleading. I can make no distinction between the two sentences at issue, 

and thus would find that neither is permissible. Our Constitution requires that 

judicial candidates be non-partisan candidates, and declaring oneself to be any 

25 
kind of Republican (or Democratic) candidate adds partisanship to the actual 

candidacy, rather than stating in which political party one has membership. 

Wright, J., joins. 

26 
COUNSEL FOR CAMERON BLAU: 

Jack Scott Gatlin 

Freund, Freeze, and Arnold 

Christopher D. Wiest 

Chris Wiest, Attorney at Law, PLLC 

COUNSEL FOR ALLISON JONES: 

Lucinda C. Shirooni 

Thomas B Bruns 

Jack Scott Gatlin 

Freund, Freeze & Arnold 

COUNSEL FOR HON. STEVEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS 

CHAIR, JUDICIAL CONDUCT COMMISSION: 

Jeffrey C. Mando 

Louis Kelly 

Adams, Stepner, Woltermann & Dusing, PLLC 

Mark Richard Overstreet 

Bethany A. Breetz 

Stites & Harbison, PLLC 

27