Judicial ad prompts complaint

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Candidates running for judicial office are limited in what they can say during their campaigns, but sometimes those limits are tested.

The Bar Association of Erie County believes a campaign by Republican Kenneth F. Case, candidate for Erie County Court judge, is undignified and told him so last week. Case refused to pull a television ad for his campaign, prompting the association’s Judicial Election Oversight Committee to issue a public response.

“I think it had kind of the sensational type of aspects of a lot of negative political ads that we see now a days,” said BAEC President Scott M. Schwartz, who also is a member of the committee. Schwartz said the ad first ran at 6 a.m. Oct. 26 — a week before the general election. He said Judge James A. W. McLeod, Case’s Democratic opponent and a sitting Buffalo City Court judge, filed a formal complaint with the association.

The television ad — available online at www.youtube.com/watch?v=Rb3ZrR_y7nU — was paid for by Ken Case for Erie County Court Judge, features the word “censure” and highlights a 19-year-old Appellate Division ruling against McLeod for misconduct for failing to serve his clients. The ad refers to Judge McLeod as a lawyer, not a sitting judge, which Schwartz said he also finds inappropriate.

“Number one, I think the opponent is entitled to be referred to as a judge,” Schwartz said. “I think the overall character of the ad is not fitting of a judicial campaign. It’s not something we think the public expects or deserves from a judicial campaign.”

Case is an attorney for the Legal Aid Bureau of Buffalo Inc., which like the court was closed on Election Day, so neither he nor Judge McLeod could be reached for comment.

According to The Buffalo News, Judge McLeod acknowledged drug and alcohol problems in the 1980s, which resulted in his loss of effectiveness as a lawyer and points out the censure also praised him for overcoming his dependencies. Since, Judge McLeod has been elected twice to city court, served as treasurer of the Bar Association of Erie County and president of that bar’s foundation. He was appointed by former Chief Judge Judith S. Kaye to a special panel to assist attorneys and judges who suffer substance-abuse problems.

Schwartz, an attorney at Lipsitz Green Scime Cambria LLP, said Case responded to the bar association in writing, stating  he felt the text of the ad was accurate, fair comment, not sensational and not undignified.

“His opinion of it was different from our committee’s opinion,” Schwartz said. “Amongst the legal community, the reaction I have had on the street has been very, very negative to it. I have not had anyone from the legal community say they thought the commercial was dignified and appropriate and worthy of being aired in a judicial campaign.”

The conduct of judicial candidates is governed by a state Code of Judicial Conduct, which essentially limits campaign comments to their qualifications, experience, any endorsements received and bar association ratings, said Susan Schultz Laluk, president of the Monroe County Bar Association, which has a Judicial Campaign Practices Committee.

Laluk said the reason is because every case is different, and must be judged on its own merits, applying the law on a case-by-case basis.

Laluk, a partner at Hiscock & Barclay, said Monroe County candidates are asked to sign a commitment to conduct their campaigns within that code. She said most ink the document and, if they don’t, the lack of a signature can be used in the MCBA’s judicial evaluation process.

Like its Erie County counterpart, the MCBA tries to resolve complaints privately, either by talking directly with the candidate or through mediation. Laluk said that if a complaint cannot be resolved, the matter is put to the board of trustees, and then may be released to the public.

She wouldn’t say whether any complaints were brought this year, but that none rose to the level of being disclosed publicly.

As for defining “dignified,” Laluk and Schwartz agreed that’s open to interpretation. They compared it to former U.S. Supreme Court Justice Potter Stewart’s ruling in an obscenity case, Jacobellis v. Ohio, 378 U.S. 184 (1964), in which he wrote: “I know it when I see it.”

“It’s sometimes difficult for the judges because of the restrictions,” Laluk said. “On the other hand, I do think we see a lot more positive campaigning from the judges as opposed to the negative campaigning we’re seeing from everyone else.”

She said it’s rare for the bar association to respond publicly to a campaign, but recalled that it did happen last year.

Harold Kurland, who was the MCBA president at the time, said a press release was issued in response to a television ad by the Monroe County Democratic Committee on behalf of Judge Brian M. McCarthy, who was running against Republican Irondequoit Town Justice John L. DeMarco for a seat on the Monroe County Court. Judge DeMarco won.

Kurland, a partner at Ward Greenberg Heller and Reidy LLP, said the ad, which questioned Justice DeMarco’s record in drunken driving cases, depicted a graveyard with several headstones and an overturned school bus.

Neither candidate complained, Kurland said, but the ad was reviewed by the MCBA committee after other members complained.

“The bar has a process by which it will trigger a review of ads if there’s a complaint saying the statements are inappropriate,” Kurland said. “I know that last year, there was one that we felt was not reasonable on all the circumstances and we spoke out against it.”

The ad was discontinued after it was formally questioned by the bar. Judge DeMarco defeated Judge McCarthy for the seat to which McCarthy had been appointed after Justice Elma A. Bellini was elected to the state Supreme Court for the Seventh Judicial District.