CHARLESTON, W.Va. — Candidates for court seats should disavow misleading statements by political action committees, according to the commission overseeing judicial conduct in West Virginia.

“Further, a judge or judicial candidate should request the third-party or PAC to immediately cease and desist from making such statements,” according to the Judicial Investigation Commission.

“To refrain from taking such action would give the public the impression that the judge or judicial candidate endorses the improper statements in violation of the Code of Judicial Conduct.”

The Judicial Investigation Commission released an advisory opinion Dec. 14, following controversies over statements made by political action committees in high-profile court races.

The advisory opinion appeared to focus on advertisements by the Republican State Leadership Committee’s Judicial Fairness Initiative, which is based in Washington, D.C.

That political action committee, through spokesman David James, responded this week to the advisory opinion by saying it’s a position meant to protect the entrenched:

“Voter education is the lifeblood of free and fair elections and the highest priority for the JFI (Judicial Fairness Initiative). And any opinion that would compel a judicial candidate to disavow lawful criticism of his or her opponent only protects the status quo and insulates incumbents from public scrutiny.

“This opinion unfortunately gives the appearance of an entrenched group of judges trying to shield themselves from public criticism in violation of the First Amendment.”

The Judicial Fairness Initiative spent almost $2 million during last year’s election cycle in West Virginia, according to filings with the Secretary of State.

That included $1,717,720.93 on television advertising, $73,239.44 on direct mail, $66.500 on radio advertising and $86,221.07 on other advertising.

Tim Armstead

One advertisement touted the candidacies of Tim Armstead and Evan Jenkins for state Supreme Court, making claims that they would “throw the book at child predators and make drug dealers pay dearly with harsh sentences.”

The West Virginia Supreme Court hears appeals of decisions from circuit courts, including criminal convictions, but justices themselves do not hand down sentences.

Evan Jenkins

Armstead, who had been Speaker of the House of Delegates, and Jenkins, a former U.S. congressman, had been appointed to open state Supreme Court seats by Governor Justice.

Both had been Republicans, although judicial elections in West Virginia are supposed to be non-partisan. Armstead and Jenkins each won election against nine opponents.

Another advertisement focused on the Kanawha Circuit Court race between Dan Greear and Tera Salango.

Greear had been appointed to the open seat by Gov. Jim Justice. Salango wound up winning on Election Day.

The advertisement in that race accused Salango, a former assistant prosecutor, of dismissing charges against a man accused of attacking and kidnapping his girlfriend in 2006.

Kanawha Prosecutor Charles Miller released a statement saying Salango’s only involvement was to appear at sentencing and argue for incarceration. He called the ads “false and misleading.”

Dan Greear

Greear declined to comment this week about the advisory opinion. In a Nov. 2 Charleston Gazette-Mail article about the ads, Greear stated his disapproval of the PAC’s message:

“I personally disavow any erroneous ads that any third-party organization may put out regarding this race,” he stated.

Salango couldn’t be immediately reached today. In October, she put out statements on social media about the ads.

Tera Salango

“I didn’t back down to career criminals and I won’t back down to career politicians and their dirty money,” Salango stated.

The advisory opinion by the Judicial Investigation Commission was in response to multiple requests for guidance, but the names were redacted in the document that was posted publicly.

The advisory opinion signed by Judge Ronald Wilson, chairman of the commission, cites rules in the Code of Judicial Conduct having to do with political and campaign activities.

It concludes that political action committees may run campaign advertisements for or against judicial candidates.

And the memo concludes that the Code of Judicial Conduct does not limit the content of advertisements that a PAC may run for or against a judicial candidate.

But candidates for judicial office have a greater burden, the commission concluded.

The commission cites a rule indicating a judge or judicial candidate should take reasonable measures to ensure other people not make false or misleading statements.

“Importantly, the duty is on the judge or judicial candidate to disavow any advertisements or comments made by a PAC that are false or misleading, fail to accurately reflect the duties and role of a judge, or indicate that a judge is not neutral and detached but would be biased in favor of or against an individual, group or legal issue.”

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