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February
21, 2002
William
W. Benton F. Wilson Bynum, Jr.
Attorney at Law Attorney at Law
P. O. Box 8926 P. O. Box 7268
Pine Bluff, AR 71611 Pine Bluff, AR 71611
James L.
Williams, II James L. Hall
Attorney at Law Attorney at Law
P. O. Box 34085 P. O. Box 1492
Little Rock, AR 72203 Pine Bluff, AR 71611
RE: Advisory Opinion # 2002-03
Gentlemen:
This committee
has been asked whether a judicial candidate for Circuit Judge
may describe himself in his campaign materials, advertisements
and public statements as "Judge", when he has served
for the past six years as a part time city judge. The position
of city judge is an appointive, rather than elective position.
The Code
of Judicial Conduct views a city judge as a Continuing Part-time
Judge, who is required to comply with most provisions of the
Code. See Application Section (B). The Code bars a judicial
candidate from knowingly misrepresenting "the identity,
qualifications, present position or other facts concerning the
candidate or an opponent." Canon 5(A)(3)(d)(iii). Regardless
of whether the candidate is appointed or elected, full time
or part time, he is a judge. Accordingly, we conclude that the
Code does not bar him from describing himself as a "City
Judge" or a "Judge" in the campaign. The term
does not misrepresent his present position. It does not suggest
he is an incumbent; it does not urge his re-election.
We are aware
of Ark. Code Ann. 7-7-305 which states that a person may use
the prefix "Judge" in an election for a judgeship
only if the person is currently serving in a judicial position
to which the person has been elected. However, that statute
prescribes the name that will be used on the election ballot.
The statute does not purport to control campaign advertising
by judicial candidates.
We understand
the potential elective disadvantage to other judicial candidates
who may have been judges in the past, perhaps even to elective
positions. But because they are not presently serving as a judge,
the Code bars them from calling themselves "Judge."
However, the Code permits them to list their prior positions
and their qualifications.
The Supreme
Court could amend the language of the Code or the comments to
it. Likewise, the Supreme Court could provide consistency by
amending the Code provisions on campaign advertising to correspond
to the statute on ballot names. But it has not yet done so.
As we have
stated in prior opinions, our task is not to rewrite the Code,
but to interpret its clear language. We conclude that under
the language of the Code it is not misleading for a city judge
to describe himself or herself as "Judge" in his campaign
advertising.
Very truly
yours,
Howard W. Brill
For the Committee
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