Voters are accustomed to political campaigns that sink low with distorted facts, missing facts, innuendo, and outright lies. Judges, however, ought to be held to a higher standard, and in Kansas, the Supreme Court has rules for judges to follow in their campaigns. But the campaign for incumbent Richard T. Ballinger in Sedgwick County, Kansas, doesn’t seem to be interested in following these rules.
In the Rules related to Judicial Conduct adopted by the Kansas Supreme Court, the title of canon four, covering political activity, starts with this admonition: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”
Specifically, the rules state:
Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in General
(A) A judge or a judicial candidate shall not: …
(4) knowingly, or with reckless disregard for the truth, make any false or misleading statement.
The comment associated with paragraph 4 illuminates:
 Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their campaign committees. Paragraph (A)(4) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.
Here’s one example of the ways the Ballinger campaign has acted in contrary to these rules in his campaign against challenger Zoe Newton: On November 2, Ballinger ran radio advertisements stating this about Newton: “more than 60 percent of her campaign contributions have come from her boss Wink Hartman, or Hartman’s companies, or a handful of Hartman’s business associates.” The ad goes on to claim that Newton, if elected, “owes a debt of gratitude to a select few.”
The actual facts, however, are that based on my analysis of campaign finance reports through October 29, Newton herself has contributed 60.2 percent of her total campaign funds. We can see, therefore, that Ballinger’s claim violates the rule that requires judges to “knowingly, or with reckless disregard for the truth, make any false or misleading statement.”
As far as owing a “debt of gratitude,” if a case involving Hartman or his business interests were to come before a Judge Newton, she would have to recuse herself. She wouldn’t be able to preside over the case.
But that’s not the situation with the large number of Sedgwick County attorneys who have contributed to Ballinger’s campaign. Ballinger knows who his contributors are, and the contributors know who they are. But evidently, the rules in Kansas don’t require recusal or even notification to the parties to a case that there are political campaign contributions involved.
Judge Richard Ballinger Facebook post, October 30, 2012.
Another example: A Georgia political action committee ran radio advertisements critical of Ballinger. He ran advertisements criticizing “secret Georgia money,” and for a time, the source of that money was unknown. But the Wichita Eagle published an article where Wink Hartman acknowledged that he was source of the funding for the ads, a fact which Ballinger signaled awareness of by posting so on his campaign’s Facebook page. But the ads claiming “secret Georgia money” continued to run, making claims that were known to be false.
Hartman’s response might not have been necessary if not for Ballinger’s claim made in a radio advertisement. Citing Ballinger’s long tenure as judge, the commercial — in a disparaging tone and manner — said that Newton “works for Wink Hartman.” Hartman is a well-known businessman and entrepreneur who ran for U.S. Congress in 2010. He adds value to our community through his successful business ventures. And since when is working in the private sector a bad thing? I’d argue that diversity of experience, including private sector business experience, is important to our stable of judges.
Another example: On November 1, a radio ad in Ballinger’s own voice mentioned his cease and desist order issued by the Kansas Commission on Judicial Qualifications. That document may be read here. Ballinger says that happened seven years ago, when as you can see, the order was issued in 2006, which is six years ago.
It might be that the events for which Ballinger was cited (“inappropriately fraternizing with subordinate employees”) happened in 2005, which would be seven years ago. The cease and desist order doesn’t say. But Ballinger certainly knows when he committed these violations of judicial conduct, and if he wants to criticize an advertisement for getting dates wrong, he should reveal the record of his conduct. Either that, or we have to argue over the meaning of the word “this.” We’ve been through that (“it,” actually) with a former president.
Ballinger also claims, in the same advertisement: “… the Kansas Supreme Court reappointed me as chief judge with complete knowledge of the facts.” This, to me, is misleading. The same advertisement attempts a clarification a little later, when Ballinger states “I was appointed chief presiding judge of probate court.” Even this clarification does little to give voters accurate information, as the probate division, at least presently, appears to consist of only one judge — Ballinger himself.
Further, I believe that according to Kansas statute, it is the chief judge of a judicial district who appoints presiding judges, not the Kansas Supreme Court as Ballinger claimed.
Another example: A Ballinger advertisement mentions that he was overwhelmingly re-elected by voters in 2008. Upon hearing that, most people would assume there was a challenger that Ballinger defeated. But there was no opponent for Ballinger that year, which is not uncommon in judicial elections. Consider Ballinger’s statement in light of a comment to the rules: “Paragraph (A)(4) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading.” (emphasis added)
I’ll leave it to readers to decide whether boasting of an overwhelming victory in an election with no opponent is materially misleading.
Similarly, when voters make a decision about electing judges, they should remember that the Kansas Supreme Court holds judges to a high standard of conduct in their campaigns.