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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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