Opinion 76-2
March 8, 1976

Re: Canon 7B(1)

Dear Judge:

This is in response to your recent inquiry requesting opinion on the following question:

"Where an incumbent judge is a candidate to succeed himself in the office of County Court Judge, may he use the word re-elect (or retain) in connection with his candidacy, where his previous election was under the Missouri Plan for the office of Judge of Metropolitan Court of ______ County."

You indicate that you were appointed to the ______Court in 1959 and that in 1970 an election was held under a "Missouri-type" plan where the question submitted to the voters was whether the incumbent should (or should not) be retained. As a result of this election the vote was favorable and you were continued as Metropolitan Judge until revision of Article V whereupon you automatically became a Judge of the County Court position which you hold at the present time. You indicate that your term will expire December 31, 1976 and that you intend to become a candidate to succeed yourself.

There is a wide divergence of views among the ten members of the Committee on the mater of this Committee's jurisdiction and on the merits of your inquiry. Six members of the Committee are of the view that your inquiry falls within its jurisdiction, whereas four members are of the view that your inquiry is more properly within the purview of the election laws with the suggestion that an Attorney General's opinion be obtained.

Of the six members who have expressed the view that the question posed is within the jurisdiction of the Committee, four are of the opinion that there is no prohibition against using the words either "re-elect" or "retain". One of the four specifically observed that you were duly "elected" by the voters of ______ County in 1970 and therefore it would be proper for you to use the words "re elect" or "retain" in your forthcoming election.

Of the six members of the Committee who are of the view that your inquiry falls within its jurisdiction, two of the members are of the view that the Code of Judicial Conduct prohibits the use of the word "re-elect". Specifically, the two members make reference to Canon 7B(1)(c), which expressly provides that an incumbent "should not...misrepresent his...present position, or other fact."

It might be well to point our that of the four members of the committee who have expressed the view that the matter is not within the jurisdiction of this Committee, two of these members observed, somewhat as an aside, that the use of the term "re-elect" should be avoided.

As it is readily apparent from the foregoing there is no clearcut (sic) majority view. It may be advisable under these circumstances for you to refer this matter to the Attorney General for an opinion. I regret that we could not have provided you with a more definitive answer to your inquiry.

Respectfully submitted,

Gerald Mager
Chairman, Committee on Standards of Judicial Conduct