Judicial campaign speech

Thursday, November 4, 2004

The rule of law is one of the characteristic institutions of a democracy, and of course, this country. To preserve the rule of law, the judiciary must be independent and not subject to pressure from outside influences. Further, the public must have the confidence and trust that its judiciary is impartial, unbiased and free from partisan interests.

To create and strengthen public confidence, states have implemented codes of judicial conduct and passed statutes that prohibit judicial candidates from announcing their views on, or committing themselves in advance to, issues or controversies that may come before the court. Judges who make advance commitments, the reasoning goes, would be under pressure to honor those commitments if elected. This pressure would hamper the judge’s ability to make an impartial decision and would ultimately undermine the credibility of his or her decision and the judicial system.

These prohibitions on speech are seen as essential to further the state interest in maintaining, or as least appearing to maintain, the integrity of the judiciary. They also serve to distinguish judicial elections from legislative elections, as many believe that judicial elections are not and should not be the same as legislative elections. The argument is that since judges perform a special function, restrictions on what they can say during an election are desirable and necessary. Supporters of such rules argue judicial candidates should be subject to speech restrictions that would be impermissible in other elections.

Prohibiting speech, however, conflicts with another essential element of our democracy, freedom of speech. This conflict becomes particularly problematic for candidates seeking election to judicial office. Thirty-nine states use popular elections in some form to elect judges to their general jurisdiction trial courts, appellate courts or both. The candidates campaigning for these posts must balance the need to inform the voting public of their views and the need to avoid breaking the law or committing an ethics violation by providing too much information.

The rules states use to regulate judicial campaign speech are patterned after the codes of judicial conduct adopted by the American Bar Association.

ABA model Code of Judicial Conduct
As the national representative of the legal profession, the ABA adopted the Code of Judicial Conduct to establish standards for ethical conduct of judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

The ABA first proposed standards of conduct in its 1924 Canons of Judicial Ethics. These canons were replaced by the 1972 ABA Code of Judicial Conduct. Among the ABA canons was Canon 7 B(1)(c), known as the announce clause, which stated that a judicial candidate “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [nor] announce his views on disputed legal or political issues.” This particular provision was modified in 1990 when the ABA revised the 1972 code. The 1990 Model Code of Judicial Conduct retained the “pledges or promises” section of the canon but replaced the announce clause with a “commit” clause stating that a judicial candidate shall not make “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” The previous announce clause was replaced because it was found to be too broad and too restrictive. Nevertheless, nine states — Arizona, Colorado, Iowa, Maryland, Minnesota, Mississippi, Missouri, New Mexico and Pennsylvania — retained the 1972 version in their state codes of conduct.

Minnesota’s retention of the announce clause led to a challenge of its constitutionality by a judicial candidate in that state. The conflict between restrictions on judicial candidates’ speech and freedom of speech eventually made its way to the U.S. Supreme Court in the case Republican Party of Minnesota v. White.

Republican Party of Minnesota v. White
The Supreme Court ruled 5-4 on June 27, 2002, that Minnesota Code of Judicial Conduct Canon 5(A)(3)(d)(i), known as the announce clause, was unconstitutional. This clause stated that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.”

Gregory Wersal, a candidate for associate justice of the Minnesota Supreme Court, brought the suit challenging the statute. Wersal first ran for the office in 1996. During his campaign he distributed literature criticizing several Minnesota Supreme Court decisions concerning crime, welfare and abortion. A complaint was filed with the Office of Lawyer’s Professional Responsibility based in part on this literature. The lawyers board dismissed the complaint and expressed doubt whether the announce clause was constitutional. Nonetheless, Wersal withdrew from the election fearing that further ethical complaints would hurt his practice.

In 1998, Wersal again ran for the same office. This time he sought an advisory opinion from the lawyers board regarding whether it would actually enforce the announce clause. The board again expressed doubts about the constitutionality of the clause, but said it could not advise him because he had not submitted a list of announcements he wished to make. Subsequently, Wersal filed suit in federal district court seeking a declaratory judgment that the announce clause violated the First Amendment. The district court found against Wersal and held the announce clause constitutional, a decision the 8th U.S. Circuit Court of Appeals affirmed. The U.S. Supreme Court then agreed to hear Wersal’s appeal.

Justice Antonin Scalia wrote the majority opinion and clarified the meaning of the announce clause. He established that all parties agreed that the clause covered much more than a judicial candidate’s promise to decide an issue in a certain way, that it extended “to the candidate’s mere statement of his current position, even if he did not bind himself to maintain that position after election.” The majority summed up by stating:

“It is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions — and in the latter context as well, if he expresses the view that he is not bound by stare decisis” (the doctrine of following precedent set by earlier court decisions).

The Court then turned to the focal point of the case. Quoting the 8th Circuit, Scalia said the announce clause both prohibited speech on the basis of its content and burdened core First Amendment political speech. Thus the proper test to apply to determine the constitutionality of such a speech restriction, he wrote, is strict scrutiny. Strict scrutiny requires the state to prove that a restriction is narrowly tailored to serve a compelling state interest. In this case the state established two interests: 1) preserving the impartiality of the state judiciary and 2) preserving the appearance of the impartiality of the state judiciary.

The majority clarified the meaning of impartiality before deciding whether it was a compelling state interest. Three different definitions of impartiality were examined and applied to the announce clause. Consequently the Court determined that all three definitions of impartiality failed to meet the standards to satisfy the strict-scrutiny test. As a result, the Court was found that the announce clause violated the First Amendment.

The Court majority went on to say that “there is an obvious tension between the article of Minnesota’s popularly approved constitution which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause which places most subjects of interest to voters off limits.” The Court argued that “the First Amendment does not permit … leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”

Within days of the decision, legal scholars and experts weighed in both for and against it. Some hailed it as a major First Amendment victory that would open a wider scope of debate. Others said it was a bad decision that would lead to highly politicized judicial elections resulting in a biased judiciary. Everyone did seem to agree that the decision would affect remaining campaign-speech restrictions.

Post-White legislative action
The White decision had an almost immediate effect. The Missouri Supreme Court repealed its announce clause in July 2002 based on the U.S. high court’s ruling in White. In August, a U.S. district court ruling on a case in which a stay had been issued to await the outcome of the Supreme Court’s consideration of White, found no distinction between Canon 5(1) of Texas’s Code of Judicial Conduct and Minnesota’s announce clause and declared it unconstitutional in Smith v. Philips. Also in August, the California Commission on Judicial Performance, citing the White decision, dismissed a proceeding against a former judge charged with campaign-speech violations. In November, Pennsylvania amended its judicial code of conduct by repealing its announce clause. In addition, Ohio, Indiana, Kentucky, Florida and Louisiana all issued advisory opinions or memoranda concerning the White decision and their own judicial codes.

One of the biggest changes occurred in April 2003 when the North Carolina Supreme Court revised that state’s Code of Judicial Conduct in response to White and two cases discussed below, Bonner and Spargo. Canon 7 of the North Carolina code, which governs political activity, does away with the “pledges or promises” clause, allows judicial candidates to endorse other candidates for judicial office, and allows judicial candidates to directly seek campaign contributions from individuals. The seven justices defended the changes as a reasonable response to the above-cited cases and also as a preemptive measure to prevent future lawsuits. The new code is considered to be the most liberal in the country, hypothetically allowing a candidate to promise to decide cases in a certain way.

Post-White cases
In October 2002, the first major court case affected by White was decided in the 11th U.S. Circuit Court of Appeals. The court ruled in Weaver v. Bonner that two sections of the Georgia Code of Judicial Conduct were unconstitutional. In this case, a candidate for judicial office, George M. Weaver, was publicly reprimanded by the Special Committee on Judicial Election Campaign Intervention for violating Canon 7(B)(1)(d), which prohibits making false and misleading statements. Weaver was charged with deliberately engaging in “unethical, unfair, false, and intentionally deceptive” campaign practices after he ran an ad on TV characterizing his opponent’s views on a number of issues. Weaver subsequently filed suit challenging Canon 7(B)(1) as well as Canon 7(B)(2), which prohibits judicial candidates from personally soliciting campaign funds.

The 11th Circuit ruled that Georgia’s canon prohibiting false and misleading statements was not narrowly tailored to serve the state’s interest in preserving the integrity, impartiality and independence of the judiciary because it did not afford the requisite “breathing space” to protected speech. The court stated that an actual-malice standard must be applied to candidate speech during political campaigns. This standard limits restrictions on candidate speech during an election to false statements made with knowledge of falsity or with reckless disregard as to whether the statement is false. The Georgia canon prohibited not only these statements but also false statements negligently made and true statements that were misleading or deceptive or contained a material misrepresentation. The court reasoned that since these types of statements are inevitable in free debate, they must be protected to avoid chilling protected speech.

The special committee argued that the actual-malice standard was not appropriate for judicial elections and that a lower standard should be adopted. The 11th Circuit disagreed, writing:

“We believe that the Supreme Court decision in White suggests that the standard for judicial elections should be the same as the standard for legislative and executive elections … we agree that the distinction between judicial and other types of elections has been greatly exaggerated, and we do not believe that the distinction, if there truly is one, justifies greater restrictions on speech during judicial campaigns than during other types of campaigns.”

The 11th Circuit also found unconstitutional the prohibition against judicial candidates personally soliciting campaign contributions. The court pointed out that the canon does not allow the candidate to solicit funds but does allow the candidate’s election committee to do so, thus completely chilling the candidate’s ability to speak to potential contributors or endorsers. The court shrugged off any impartiality concerns, saying that personal solicitation does not suggest that a candidate will be partial if elected. A “successful candidate will feel beholden to the people who helped get him elected regardless of who did the soliciting of support” the 11th Circuit said.

The next case to affect judicial campaign speech came in February 2003, when the a federal judge in the northern district of New York ruled in Spargo v. N.Y. State Commission on Judicial Conduct. The New York State Commission on Judicial Conduct filed complaints against Justice Thomas Spargo alleging various charges of misconduct. The commission’s complaint claimed that Spargo “failed to observe high standards of conduct; failed to avoid impropriety and the appearance of impropriety; failed to respect and comply with the law; and failed to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” as required by the New York Code of Judicial Conduct. Allegations included that Spargo: 1) offered items of value to encourage votes on his behalf during his campaign to become town justice; 2) while sitting as town justice, failed to disclose to the defense that he had represented the county district attorney’s campaign, which still owed him $10,000 for legal services rendered, and failed to disqualify himself as town justice in cases prosecuted by the D.A., based on this information; 3) while town justice, “attended governmental sessions for the recount of presidential votes in … Florida as an observer for the Republican Party” and “with the aim of disrupting the recount process, participated in a loud and obstructive demonstration.” Spargo, in turn, filed a complaint challenging the constitutionality of certain sections of the New York code.

District judge David N. Hurd found that the sections ordering judges and judicial candidates to “refrain from inappropriate political activity” were impermissible prior restraints upon the rights guaranteed by the First Amendment. Hurd relied on White and, applying strict scrutiny, found that the New York code of conduct was not narrowly tailored to serve the compelling state interest of preserving judicial independence.

Hurd then looked to the sections that ordered judges to “uphold the integrity and independence of the judiciary” and “to avoid impropriety and the appearance of impropriety in all of the judge’s activities.” It found them void because of vagueness. Hurd said that “the language of the rules provided no reasonable opportunity for a person of any level of intelligence to know what conduct would be prohibited.”

In December 2003, however, the 2nd Circuit vacated Hurd’s judgment and remanded the case back to the district court. The 2nd Circuit said the lower court should abstain from exercising jurisdiction over Spargo’s constitutional challenge. The trial court, it said, should instead defer to the disciplinary proceeding pending before the New York State Commission on Judicial Conduct, letting it decide on the constitutional issue. (Spargo v. N.Y. Comm. on Judicial Conduct, 351 F. 3d 65 (2nd Cir. 2003) cert. denied 124 S. Ct. 2812 (June 2004.))

Before the 2nd Circuit’s decision, it seemed that those who feared White would open a Pandora’s box and lead to a loosening of judicial election standards were correct. They feared, among other things, that the White decision would open the door for challenges against the other clauses that restricted candidate’s speech; i.e., the “commit” clause and the “pledges or promises” clause. However, a number of rulings in early 2003 seemed to indicate that this would not be the case.

The Florida Supreme Court decided the case In re Patricia Kinsey in 2003. The state high Court upheld the Florida Judicial Qualifications Commission discipline against a judge who had challenged the commission’s findings by asserting that her campaign speech was protected by the First Amendment.

The Florida Supreme Court determined that, during her election campaign, Judge Kinsey had violated Canon 7 of Florida’s Judicial Code by fostering the impression that she held a prosecutor’s bias. The court found that Kinsey’s statements during the campaign and in her campaign materials gave the distinct impression that a judge’s role in criminal proceedings was to combat crime and support police officers as opposed to conducting an impartial tribunal where justice was dispensed without favor or bias. The high court held that these statements clearly affected Kinsey’s appearance of impartiality and were not protected by the First Amendment. The decision upheld Florida’s pledges-or-promises clause and commit clause, finding them to be narrowly tailored to serve a compelling state interest.

In reaching its decision, the Florida court in essence concluded that the ruling in White did not affect the Kinsey case since it struck down Minnesota’s announce clause and did not address that state’s pledges-or-promises clause. The Florida court also found Kinsey guilty of violating canons prohibiting making false statements and false representations about her opponent.

In June 2003, New York’s highest court, the Court of Appeals, decided two cases that affected judicial campaign conduct.

In In re Raab (2003), New York’s highest court considered the case of Nassau County Supreme Court Justice Ira J. Raab, who, relying on the White decision, answered a complaint by the state Commission on Judicial Conduct that he had engaged in inappropriate political activity. Raab contended that the rules restricting political activity of judges and judicial candidates were not narrowly tailored to serve a compelling state interest, did not withstand strict scrutiny and, therefore, violated his First Amendment rights.

The New York Court of Appeals reviewed the White decision and found it significantly distinguishable from the situation in Raab. The justices noted that White did not declare that judicial candidates must be treated the same as non-judicial candidates or that their political activity or speech may not legitimately be circumscribed. They also noted that the Supreme Court distinguished Minnesota’s announce clause from other rules restricting the speech of judicial candidates and that the Supreme Court took no position on the validity of the other judicial conduct restrictions. Thus, the New York court found that the canons restricting a judge or judicial candidate from engaging in inappropriate political activity (such as participating in other candidates’ campaigns or making contributions to political organizations supporting other candidates or party objectives) are narrowly tailored to serve a compelling state interest and are constitutional.

The other case decided in June 2003 was In re Watson. In this case, City Court Judge William Watson appealed the sanction handed down by the Commission on Judicial Conduct, arguing in part that New York’s pledges or promises rule impermissibly restricts constitutionally protected campaign speech. The commission had issued a complaint against Watson during his election campaign for a city court judgeship, alleging misconduct arising from statements he made during the campaign.

The New York Court of Appeals found that Watson did in fact violate the pledges or promises clause by effectively promising, if elected, to aid law enforcement rather than apply the law neutrally and impartially. Analyzing the White decision, the high court found that White did not compel a particular result in Watson. As in Raab, the court noted that White distinguished the announce clause from other restrictions and that New York has a pledges or promises clause. The New York court determined that the pledges or promises clause withstood strict-scrutiny analysis, appropriately balanced the interests of litigants and the rights of judicial candidates and voters, and was constitutional.

Also in 2003, the Supreme Court of Maine decided In re Dunleavy. The Maine Committee on Judicial Responsibility and Disability found that a probate judge, James P. Dunleavy, had violated the state Code of Judicial Conduct by, among other things, soliciting funds for his unsuccessful campaign for a state senate seat. Dunleavy answered that the canon in question violated his First Amendment rights. Relying on Weaver, White and Spargo, he contended that the canon had a chilling effect on a candidate’s ability to speak to potential contributors and that the restrictions were impermissibly designed to treat judicial elections differently from legislative elections.

The Maine high court found that all the cases Judge Dunleavy relied upon were distinguishable from this case, and that his personal solicitations exposed him to suggestions of bias and compromised the appearance of impartiality fundamental to the integrity of the judiciary. The court held that the canon survived strict scrutiny and was constitutional.

Another case concerning judicial campaign speech was decided in a U.S. District Court in Ohio on Sept. 14, 2004. In O’Neill v. Coughlan, District Judge Ann Aldrich granted a motion for a preliminary injunction barring the Ohio Office of Disciplinary Counsel from pursuing a complaint filed against Judge William O’Neill for violations of judicial canons.

The complaint alleged that O’Neill violated these canons by repeatedly identifying his party affiliation in his campaign materials and by making statements implying that the Ohio Supreme Court was for sale to campaign donors.

O’Neill sued the disciplinary counsel after he received a letter from them announcing their investigation. Relying, in part, on the U.S. Supreme Court’s decision in White, O’Neill asserted the canons in question could not be enforced because they violate judicial candidates’ First Amendment right to freedom of speech.

Aldrich agreed. She wrote that the canons restrained “speech on the basis of content, a type of restriction that the government generally has no right to impose.” She added:

“The First Amendment does not permit the State to dictate what information the voters may be ‘trusted’ with. The First Amendment guarantees voters the right to obtain what ever information they like, and to decide what information is relevant to their decision on whom to elect to the bench. Conversely, for the voters’ First Amendment right to mean anything, judicial candidates must be allowed to impart whatever information they wish about their party membership or affiliation, their views on political or legal issues, and their personal philosophy — without restriction.”

Aldrich deferred ruling on making the injunction permanent and on the disciplinary counsel’s motion to dismiss. The judge’s order can be immediately appealed.

Another case was decided on Oct. 19, 2004, in a district court in Kentucky. This was the first of a line of nearly identical cases. Family Trust Foundation of Kentucky v. Wolnitzek, No. 6: 04-473-DCR (E.D. Ky.) District Judge Danny Reeves decided that Canon 5B(1)(c) of Kentucky’s Code of Judicial Conduct, which contains both a pledges-and-promises clause and a commit clause, violated the First Amendment.

The decision came in a lawsuit filed by a Kentucky nonprofit organization, the Family Trust Foundation of Kentucky. The Family Trust Foundation sent surveys to all Kentucky judicial candidates asking them to answer questions about contentious issues. None of the candidates fully responded to the survey, citing concerns about violating the canon on judicial speech.

The Family Trust Foundation filed a lawsuit alleging that the state’s judicial-speech restrictions violated the foundation’s and the voters’ rights to receive important political information and that the restrictions violated the candidates’ rights to free speech. Reeves quoted the White decision throughout his opinion and used similar reasoning as the U.S. Supreme Court when he came to the conclusion that “Kentucky’s canon of judicial conduct that professes to prohibit candidates from making promises, pledges or commitments in fact limits the candidate’s ability to announce his or her views in violation of the First Amendment to the United States Constitution.”

What is particularly interesting about this decision is that the canon contains both a pledges-and-promises clause and a commit clause, neither of which were addressed in the White opinion but both of which were upheld in previous court cases. In his opinion, however, Reeves wrote:

“[T]he interpretation and application of the promise and commit clauses in Canon 5B(1)(c) have clearly been used by the state to reach the same speech … protected by the First Amendment … i.e., information on the legal issues of interest to the voting public, including a candidate’s personal views and beliefs. Kentucky is simply using the promises and commit clauses as a de facto announce clause.”

North Dakota Family Alliance v. Bader was decided in March 2005. In this case a U.S. district court in North Dakota found the “pledges and promises” and the “commit” clauses of the North Dakota Code of Judicial Conduct to be overbroad and unconstitutional. Judge Daniel L. Hovland wrote that “both [clauses] essentially embrace the same speech as the ‘announce clause’ that was struck down by the U. S. Supreme Court in White.” He also presciently noted “a careful reading of the majority opinion in White makes it clear that the “pledges and promises clause” and the “commitment clause” are not long for this world.”

Indeed, in July 2005 a U.S. district court in Alaska decided Alaska Right to Life Political Action Committee v. Feldman, concluding that “the ‘pledges and promises clause’ and the ‘commitment clause’ found in the Alaska Code of Judicial Conduct, when viewed as mandatory as opposed to advisory, prohibit the same type of constitutionally-protected speech guaranteed by the United States Supreme Court in Republican Party of Minnesota v. White.” The two clauses were declared unconstitutional.

U.S. district courts in Kansas and Indiana, in July 2006 and November 2006 respectively, came to the same conclusion concerning the same canons in their own codes of judicial conduct.

“Commitment clause” challenges were also launched in two other states, Pennsylvania and Kentucky, in 2005 and 2006, but both were dismissed for lack of standing.

Currently there is at least one lawsuit pending challenging “pledges and promises” and “commitment” clauses, that is in Arizona.

ABA’s actions
The White decision has also spurred the ABA to renew its efforts to evaluate and amend the Model Code of Judicial Conduct. The ABA House of Delegates approved amendments to the Model Code in August 2003 in response to White. On Sept. 24, 2003, the ABA appointed a joint commission to evaluate the model code of judicial conduct to review and revise the code.

On Dec. 14, 2005, the joint commission released for public comment the final draft report of its proposed new canons and rules. The commission set March 15, 2006, as the deadline for comments, and on Oct. 31, 2006, it issued its final report recommending changes to the code. The new code is to be deliberated at the ABA’s mid-year meeting in February 2007.

White revisited
On Jan. 23, 2006, the Supreme Court declined to hear an 8th Circuit case concerning other canons of Minnesota’s Code of Judicial Conduct. In a continuation of White, the 8th Circuit found that the “partisan-activities clause,” which prohibits judicial candidates from identifying themselves with a political party, attending political gatherings or seeking, accepting, or using endorsements from a political organization, and the “solicitation clause,” which prohibits a judicial candidate from personally soliciting or accepting campaign funds, violate the First Amendment. Thirty-one other states have rules similar to these Minnesota rules. How this decision will affect them, and the tone of judicial campaigns in the future, remains to be seen.

Updated February 2007