In a blog item last week, I discussed a YouTube video sent out by Arizona Attorney General Tom Horne's GOP primary rival, former Arizona Gaming Director Mark Brnovich. The video talked about his family life and included some heartfelt comments from his wife, Maricopa County Superior Court Judge Susan Brnovich.
The video did not identify Susan Brnovich by name or profession, other than hubby Mark noting that they met while they were working at the Maricopa County Attorney's Office. It was embedded in an e-mail from the campaign.
Basically, Susan talks about what attracted her to Mark and praises him as a good father. Titled "Live Your Values, Do the Right Thing," the video is a not-so-veiled jab at Horne's lack of family values, at least in the sense that Horne hired his alleged mistress to a state job at a salary of $108,000.
The note from Mark in the e-mail included an appeal for campaign contributions and a direct swipe at Horne.
"As you know, I am running against an incumbent Attorney General that has been plagued with scandal after scandal," reads the text. "It will take help from Arizonans like you to help me win in August and be afforded the opportunity to run in the General Election in November.
"Arizona's Attorney General should be able to work with law enforcement, not have their personal lawyer on speed dial."
Pretty standard stuff for what promises to be a rough-and-tumble primary. Save for one issue: In being a part of the video, did Judge Brnovich violate Arizona's Code of Judicial Conduct, which prohibits judges from campaigning on behalf of anyone other than themselves?
The rule occurs in Canon 4, specifically Rule 4.1., which states that a judge shall not, "publicly endorse or oppose another candidate for any public office," or "actively take part in any political campaign other than his or her own campaign for election, reelection or retention in office."
Comments accompanying the rule make clear that this includes campaigns for family members as well.
Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office.
A judge or judicial candidate must not become involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take and should urge members of their families to take reasonable steps to avoid any implication that the judge or judicial candidate endorses any family member's candidacy or other political activity.
Regular readers of this blog may recall that ex-Justice of the Peace Lester Pearce, brother of recalled, disgraced former state Senate President Russell Pearce, was censured and fined by Arizona's Commission on Judicial Conduct in 2012 for the campaigning he did for his brother back in 2011.
By the time the commission got around to dinging Pearce, he already had left office to run unsuccessfully for county supervisor.
Still, the commission's reproach will dog the ex-JP for the remainder of his days.
In the rarefied world of judges and lawyers, such rules are taken pretty seriously. And for good reason. The idea is to remove judges from politics as much as possible, so that justice will be blind, or as blind as we can make it.
Elections law expert Tom Ryan was one of the first persons to raise the issue with me. Ryan is the Irish wolfhound who pursued the Pearces throughout Russell's recall election, and he has been a fierce critic of Tom Horne's many ethical lapses.
He told me that he believed Susan Brnovich stepped over the line. He did not think the fact that she was not identified in the video let her off the hook. So I asked him, if he were advising the Brnoviches, would he tell them to jerk the video?
"If the Brnoviches were to call me, it would be an unqualified, `Hell yeah you yank it,"' he told me.
"The Canons of Judicial Conduct make it especially bad for judges to campaign for family members," he said, adding that, "This is very serious stuff."
Former Superior Court Judge Colin Campbell's firm Osborn Maledon did the investigation into Lester Pearce for the Commission on Judicial Conduct.
Campbell, who has given advice to Judge Brnovich on this issue, cited what he referred to as the "leading paper" on the subject, entitled, "Political Activity by Members of a Judge's Family," which can be found on the American Bar Association's Web site.
The paper offers a survey of state rules restricting campaigning by judges. Campbell says he believes there is an exception under which Judge Brnovich would fall.
"Many state ethics opinions have held that that a candidate's campaign ads or flyers can identify a candidate's spouse by name and relationship as long as the material does not identify the spouse as a judge," he told me in a lengthy e-mail.
"Taking these authorities into account," he continued, "in my opinion, Judge Brnovich can participate in an interview with her husband, provided that she does not identify herself as a judge and limits her remarks to her marriage and family.
"In this situation, her role as a wife and mother is 'solely to the legitimate need of the candidate to present a full biography of himself.' The interview you note is well within these limitations. I suspect that 99.9% of the people who view the interview will not even know or recognize the wife as a judge."
Problem is, now that the genie has fled the oil can, a lot of people are going to know that Susan Brnovich is the wife of Mark and is on the bench.
Campbell also suggested that there could be, "a question whether a prohibition of speech under these circumstances, confined to statements as to her role as a wife to the candidate, is constitutional under the Arizona and United States Constitutions."
I asked him, since he was citing state rules, wouldn't Arizona's rules be paramount in this matter?
"The rules are remarkably consistent on this across the States," he replied. "The issue is what does the rule mean. Other states have address these issues in similar factual circumstances, but Arizona has not."
As I suspected, Ryan, who is a purist when it comes to such matters, was not convinced by Campbell's argument, which I sent to him in full, along with a link to the legal study Campbell cited.
"Doing an interview that is content neutral is not the problem," he told me. "The problem is when you take the image of the judge - whether a still or video - and attach it to campaign literature or a campaign website as they do here.
"It is not a defense under current Arizona canons to say 'Well, I didn't say I was a judge,' or '99.9% of the people who look at this won't know she's a judge.'"
He added, "if a judge cannot drive around with her husband's campaign stick on her bumper, how can she appear in a video affixed to his campaign website? What is the functional difference? Spoiler alert: NONE!"
What about other states having more less stringent rules?
"Yes, other states may well have more lenient rules regarding campaigns and judges," conceded Ryan, "but that ain't Arizona."
"Wyoming may have an 85 mph speed limit on its freeways, but it is not a defense to a speeding charge in Arizona where the speed limit is 75 mph. Same rule applies here. By the way, there are examples listed in that article that are even more strict than Arizona's rules. Should the Brnovichs be ignoring those?
"If Judge Brnovich is...saying these Judicial canons affect my First Amendment Rights and I am taking a stand, then more power to her. But that is not what she is saying."
He also pointed out that Brnovich has an obligation as a judge to order her husband to cease using her image and to self-report the possible ethical violation.
How do Judge Brnovich's actions compare with Lester Pearce's? I'm sure this will depend on whom you ask, but Pearce was a presence throughout the 2011 recall of his brother.
In the minutes of a controversial Republican Legislative District 19 meeting at the time, he is identified as a Justice of the Peace, and it is recorded that he spoke in favor of his brother and against the recall.
In a blog item back then, I also noted that:
"I confronted [Lester Pearce] about an account of him going to someone's door and arguing that the individual should remove a Jerry Lewis sign from that person's front yard.
"The judge explained that he had approached a neighbor about a Lewis sign, but that this had only been a joke."
Lewis was the Republican candidate who defeated Pearce in the recall election.
Lester Pearce also got physical briefly with videographer Dennis Gilman as we asked him questions before a debate in Mesa between Lewis and Pearce, though this issue and the other issue involving the yard sign were not addressed in the complaint against Lester.
In my personal opinion, Lester Pearce's actions were far more egregious than anything Judge Brnovich has done.
That said, it is unfortunate that Horne, from whose every pore oozes corruption, now has a weapon to use against Mark Brnovich.
Indeed, some of the wingnut blogs are already in attack mode, though why they want to hitch their cabooses to Tom "Hit-and-Run" Horne, a guy who is facing a much-delayed hearing on Monday into alleged campaign finance violations, is beyond me.
Speaking for the Brnovich campaign, spokesman Ryan Anderson shot back at the Horne partisans taking advantage of the issue online.
Anderson issued the following statement:
"It's pathetic that Tom Horne's minions and allies want to make this campaign about attacking wives and families. They have nothing to attack Mark on, so this is the best they've got?
"We're talking about a sitting AG who has been convicted of a hit and run, who has been found to have violated campaign finance laws not by one, but by two county attorney's, who has a lifetime trading ban from the Securities Exchange Commission, has questions revolving around his personal life, and Tom Horne's supporters want to talk about ethics? We feel confident that we will win that battle any day.
"Susan is one of the highest rated judges sitting on the bench today in Arizona. To call into question her ethics is beyond the pale. With the exception of Mark's mother, there is no one more qualified to speak to the values of Mark as a husband and a family man than Susan.
"Obviously the content of this video has hit a little too close to home for some in the Horne camp."
He also told me that the campaign sought and received legal advice before releasing the video, and they are confident that it adheres to any and all ethical rules.
Even if Judge Brnovich's participation in the video is found to be in error, it's tiny taters compared with the colossal transgressions of Horne.
Sure, Horne loyalists will attempt to muddy the waters with it. Hell, what else have they got to work with?
For them, this is like trying to paddle the Titanic out of the way of that iceberg. No matter how hard they try, their ship's still going down.
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