Next week, we’ll release our newest set of questionnaire answers: that is, we’ll issue our report on the questionnaires we sent to appellate judicial candidates in late 2015.
Most people are unaware that the Advance Arkansas Institute sent questionnaires to the nine candidates for appellate judgeships in Arkansas. Three candidates returned them. Of those who did not return them, only one candidate — Job Serebrov — claimed that judicial ethics precluded him from doing so.
Here’s my question: what’s the real reason that Job Serebrov didn’t answer the Advance Arkansas Institute’s questionnaire?
Is it because he doesn’t want to answer, or is it because (as he says) he is prohibited from doing so because he was advised by the state’s judicial ethics commission that “answering these questions was forbidden to judicial candidates” (as he claimed in an e-mail to me)? If the latter is true, it will obviously come as a great surprise to the three judicial candidates who have answered AAI’s questionnaire.
There are really only two ways for candidates to deal with questionnaires: answer them or decline to answer them. I have the most respect for judicial candidates who see it as part of their job to publicly answer questions on issues of legal and judicial philosophy. Refusing to answer such questions is less admirable — regrettably, some judicial candidates see discussions of questions of legal and judicial philosophy as pointless or a waste of their time, and I fear that other candidates believe that answering such questions might do them more harm than good in the race. Serebrov seems to want to choose a third way – to claim that the law prohibits him from answering. When I spoke to Serebrov, he told me that he would like to answer our questions, but that he was disallowed from doing so as a matter of law. This has the effect of giving him the benefit of not answering without the embarrassment that comes with refusing to do so.
Subsequently, Serebrov told me by email that he asked the state’s Judicial Discipline and Disability Commission for guidance on this issue. He said that the Commission’s staff advised him that he was “forbidden” to answer any questions. This was most surprising: as I told him subsequently, that position is contrary to both the Arkansas Code of Judicial Conduct as well as established law at both the local and national levels. While judicial candidates must not provide answers on questions or controversies that may arise if they win their election, there is certainly no blanket prohibition on answering questionnaires such as the one submitted by AAI. Indeed, part of what the questionnaire tests is whether a candidate can competently discuss questions of legal and judicial philosophy without running afoul of the Canons of Judicial Conduct.
Specifically, in an e-mail to me, Serebrov explained that he was told, “These questions appear to be soliciting from you, a judicial candidate, opinions regarding matters, issues or controversies that could come before you were you to win the elected position you seek. Please see Canon 4, Rule 4.1 for clarification.” Serebrov explained to me that this guidance from the Commission served as a blanket prohibition that required him to decline to answer all questions.
Serebrov’s interpretation is groundless. There is no blanket prohibition; rather, as demonstrated above, he was given guidance to be cautious about answering questions generally, so as to ensure that they comport with the Canons. The Commission’s guidance refers to the portion of the Canons that Serebrov would ideally be guided by when making public statements as a candidate.
When Serebrov told me that judicial ethics blocked him from answering questions, I was taken aback — I could only conclude that Serebrov had a serious misunderstanding of the guidance he received from the Judicial Discipline and Disability Commission. I called the Director of the Commission, David Sachar, who told me that he had never communicated with Serebrov about this matter. Sachar advised me that I should talk to the only other person authorized to speak for the Commission on such matters, Deputy Director Emily White, who he thought might have communicated with Serebrov.
I spoke to White, who then confirmed my understanding of the nature of the guidance she had previously supplied to Serebrov. After I contacted White about her conversation with Serebrov (and provided her the emails that Serebrov had sent me, in which he said that he was “forbidden” by ethics rules from answering AAI’s questions), she eventually told me:
My statement to him was only with regard to a couple of the questions, where I said it looked like the questions were possibly asking him for a response to something that may come before him if he were to win. And it wasn’t every one of the questions. So it appears to me, from what you sent to me – as far as his response to you – that he used that as a blanket kind of a response to your entire list of questions. That was not my intent.
As White’s statement demonstrates, when Serebrov e-mailed me to say “it was made clear that answering these questions was forbidden to judicial candidates,” he was wrong in several respects. Of course he was not “forbidden” from answering anything, only cautioned to consider his answers in light of the relevant judicial Canon. And of course AAI’s questions can be answered without violating the Canons of Judicial Conduct — although it is possible for me to imagine some hypothetical answers to our questionnaire that would indeed violate the Canons of Judicial Conduct, there are plenty of ways to answer these questions without any violation of the rules.
The kindest way to understand this situation is that Serebrov is in possession of a terribly flawed understanding of our state’s judicial ethics rules. This does not speak well for someone who is running for a seat on the Court of Appeals. After all, we expect every lawyer to interpret the law competently — and competent interpretation of the law is the fundamental building block of the work that we expect appellate judges to do. Serebrov has apparently misinterpreted both the written law and several different communications from the relevant enforcement agency. I prefer not to think about the other possibility — that Serebrov intentionally communicated with me in a false or misleading way in an attempt to avoid answering AAI’s questionnaire — given that such conduct would violate the portion of the Canon which says that a judicial candidate shall not “knowingly, or with reckless disregard for the truth, make any false or misleading statement” (Rule 4.1 (A)(11)).
It is certainly possible that Serebrov misunderstood what Emily White told him. Given the rhetoric of certitude that he resorted to in multiple communications with me about this matter, that is troubling enough. (In one email, he informed me that “I was correct in my reading of your questions according to the Office of Director for Judicial Discipline and consequently must decline to respond to your questionnaire.” In a subsequent email that responded to my suggestion that such a statement reflected a misunderstanding of his rights under the law, he informed me that “The response I sent was the end result of a phone discussion with the Office of Judicial Discipline where it was made clear that answering these questions was forbidden to judicial candidates.” In retrospect, it seems likely that Serebrov was flatly wrong both times.) I appreciate that people can misunderstand things, although in this context such a misunderstanding strikes me as — at best — mildly unbelievable. But if Serebrov intentionally misrepresented judicial ethics rules as a pretext to avoid answering AAI’s questions, that isn’t just a political problem — rather, it’s a problem that is itself punishable by the Judicial Discipline and Disability Commission.
To sum up — we’re publishing our judicial candidate questionnaire answers later this week. I have a great deal of respect for the judicial candidates who supplied answers to our questions. And I appreciate that some judicial candidates will decide that they are just too busy to answer our questions, or that answering such questions doesn’t really benefit their campaign, although I think taking such a position suggests some degree of cynicism or contempt for the voters. But providing a groundless explanation to the effect that ethics rules prevent judicial candidates from answering questions is something that I don’t respect or appreciate at all.