In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the U.S. Supreme Court held that a prohibition on judicial candidates announcing their views on disputed legal and political issues violated the First Amendment, concluding: “We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”
After White, constitutional challenges were filed against the prohibitions on judicial candidates making inappropriate pledges, promises, and commitments. The version of the prohibition in the 1990 American Bar Association Model Code of Judicial Conduct stated:
A judge or a candidate for election or appointment to judicial office shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office [or] 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.
Rule 4.1(A)(13) of the 2007 model code provides:
[A] judge or a judicial candidate shall not . . . in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
Comment 15 notes that that rule does not specifically address how judicial candidates should respond to “questionnaires or requests for interviews from the media and from issue advocacy or other community organizations that seek to learn their views on disputed or controversial legal or political issues.” It explains:
Depending upon the wording and format of such questionnaires, candidates’ responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way. To avoid violating paragraph (A)(13), therefore, candidates who respond to media and other inquiries should also give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. Candidates who do not respond may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification. See Rule 2.11.
Federal courts have held that the pledges, promises, and commitments clause does not violate the First Amendment if narrowly construed to allow judicial candidates to answer some but not necessarily all questions on some but not necessarily all questionnaires.
In Pennsylvania Family Institute v. Celluci, 521 F. Supp. 2d 351 (Eastern District of Pennsylvania 2007), the court concluded that, “it is hard to imagine a restriction more narrowly tailored to Pennsylvania’s compelling interest in protecting the due process rights of future litigants” than the pledges, promises clause, and commitments clause. The clause was construed to prohibit a candidate from making only pledges, promises, or commitments to decide an issue or a case in a particular way and to allow a candidate to answer questionnaires sent out by the Pennsylvania Family Institute.
In Duwe v. Alexander, 490 F. Supp. 2d 968 (Western District of Wisconsin 2007), the court held that the pledges, promises, and commitments clause did not prohibit judicial candidates from responding to a questionnaire from Wisconsin Right to Life and was not unconstitutional on its face. The court stated that, “whether a statement is a pledge, promise or commitment is objectively discernable,” and “people are practiced in recognizing the difference between an opinion and a commitment.”
In Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), the U.S. Court of Appeals for the 7th Circuit stated:
It is not clear to us that any speech covered by the commits clauses is constitutionally protected, as White I understands the first amendment. How could it be permissible to “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office”?
The 7th Circuit acknowledged that “neither the commits clauses nor the Code’s definitions pin . . . down” what promises are inconsistent with the impartial performance of the adjudicative duties of judicial office, noting that “the principle is clear only in these extremes.” However, the court concluded that advisory opinions are a more appropriate method for clarifying the provision than summary condemnation by a federal court, stating that the constitution allows those details to be fleshed out in an administrative system.
Several advisory committees have interpreted the clause as applied to questionnaires directed to judicial candidates.
The Illinois advisory committee concluded that judicial candidates are free to answer questionnaires that seek their views on controversial topics based on their First Amendment right to announce their views on disputed moral, legal, and political issues. Illinois Advisory Opinion 2021-3. However, the opinion noted that judicial candidates are not required to make such announcements.
Further, the committee cautioned that a candidate’s response “must not contain statements that commit or appear to commit them to decide particular cases, controversies, or issues within cases that are likely to come before the court in a particular way.” It added further caveats:
- A candidate must carefully analyze “the likely impact of whether or how to answer the questionnaire.”
- A candidate should consider whether they “have information that would suggest that any answers provided to a particular questionnaire are likely to be misused or misinterpreted,” raising a genuine concern that answering might undermine public confidence in the independence and integrity of the judiciary.
- A candidate’s response should “include assurances that the candidate will keep an open mind and carry out adjudicative duties faithfully and impartially if elected.”
See also Arizona Advisory Opinion 2006-5 (although not required to, a judge standing for retention or election may respond to a political interest group questionnaire seeking their views on disputed political and legal issues or judicial philosophy if the responses do not constitute pledges, promises, or commitments that are inconsistent with the impartial performance of their adjudicative duties).
Some advisory opinions address specific questionnaires.
The Florida committee considered 2 questionnaires – one from the Florida Family Policy Council and one from the Christian Coalition of Florida – that sought “a combination of personal and political information.” Florida Advisory Opinion 2006-18. For example, the Family Policy Council questionnaire asked candidates “which United States and Florida Supreme Court Justices most reflect the candidate’s own judicial philosophy, whether the candidate believes that the Florida Constitution recognizes a right to unisex marriage, and whether the candidate agrees with federal or Florida Supreme Court opinions on such subjects as parental consent for abortion, school vouchers, and assisted suicide.” The questions gave the candidates 5 options: “agree,” “disagree,” “undecided,” “decline to respond,” and “refuse to respond.” According to a footnote, “decline” would “be viewed as willing to answer but for a belief that such action is prohibited by the Florida Code of Judicial Conduct and/or that providing answers might subject a judge to disqualification in a future case.” The opinion noted that “some of the Christian Coalition’s options are more extensive, but several questions ask for ‘yes,’ ‘no,’ or ‘refused.’”
The Florida committee declined to definitively permit or prohibit judicial candidates from answering the 2 questionnaires but did give general guidance about what “sorts of answers or comment are likely to run afoul of the Code of Judicial Conduct.” It explained:
To the extent the questionnaires seek comment on the Florida Constitution or published judicial decisions, we note that the Code of Judicial Conduct does not impose a blanket proscription on expressions of a general judicial philosophy, including “views on constitutional or statutory construction.”. . . The scope of such expression, however, should acknowledge the cardinal duty of a judge to follow the law whether the judge agrees with it or not. Apart from this we know of no ethical impediment to analytical, informed, respectful, and dignified comment on past decisions. Judicial opinions on most controversial legal issues will have been the subject of scholarly analysis (e.g., law review articles), from which endeavor judges are not barred. . . . Moreover, the mere expression of an opinion does not necessarily mean the person giving the opinion has researched the issue exhaustively, or that the person would not be amenable to altering the opinion in the face of capable advocacy. That is, expressing an opinion does not automatically indicate closed-mindedness.
The committee did caution that “the line between ’announcing’ and ‘promising’ can be a thin one” and even if a judicial candidate’s pronouncements are constitutionally protected speech that complies with the canons, the dispositive question in a motion for disqualification is “whether the individual ‘beholder’s’ fear of partiality is reasonable, reasonableness being determined by a neutral and objective standard.”
The committee also noted that the questionnaires did not leave “much room” for candidates to explain their responses, essentially calling “for ‘yes or no’ answers to their questions on substantive law” and that it was not clear whether candidates were prohibited from elaborating. It noted that in a prior opinion it had stated:
[M]any responses may not necessarily fit into the “yes” or “no” or “undecided” boxes on the questionnaire. Depending upon the subject matter of the question, some complex legal or political questions may not be able to be ethically answered at all. Other questions may need a thoughtfully drafted explanation or elaboration to appropriately satisfy ethical considerations.
The committee left “to the candidates’ professional judgment whether such brevity is sufficient.”
The Kansas advisory committee stated that a judicial candidate may not answer a questionnaire from Kansas Judicial Watch that asked the candidate to state whether in their view the state supreme court had violated the state constitution in a particular opinion; whether the state constitution makes the power to tax and spend and to define marriage the prerogative of the legislature only, not the supreme court; their views on same-sex marriage, who should define pornography, and the rights of an unborn child; whether the death penalty should be determined by the state supreme court; and whether any portion of the state constitution is intended to protect a right to assisted suicide. Kansas Advisory Opinion JE-139 (2006). (However, the Kansas Commission on Judicial Qualifications added a disclaimer on the advisory committee website stating that it “respectfully rejects” the committee’s conclusion, citing White, andnoting that it is not bound by advisory opinions.)
The New York committee advised that a judicial candidate may not answer a candidate questionnaire from the Women’s Equality Party that asked 20 yes/no questions about the candidate’s support for legislation regarding reproductive rights, pay equity, and sexual harassment; their opposition to attempts to limit federal programs; and their support for campaign finance, health education in public schools, and other local and federal programs and legislation. New York Advisory Opinion 2018-95. The opinion noted that many of the questions expressly asked “the candidate to say yes or no to a specific pledge or promise, such as . . . ‘Will you pledge to fight any attempts to roll back the reproductive protections afforded women by Roe v. Wade?’” Further, candidates were expected to check “yes or no for each question, without comment,” although they could provide “additional narrative” on a separate page. The questionnaire did not “acknowledge a judge’s obligation to ‘decide all cases fairly and impartially and in accordance with governing law’” or “invite candidates to assert any caveats when responding ….”
The West Virginia committee stated that a judicial candidate may not answer a political party’s questionnaire about controversial issues because the questionnaire stated that it was not asking for the candidate’s personal opinions and did not give the candidate an opportunity to expound on their answers. West Virginia Advisory Opinion 2024-3. The questionnaire asked, for example, “(1) which of two U.S. Supreme Court Justices (Scalia or Breyer) the candidate agrees with in interpreting the U.S. Constitution; and (2) whether the candidate agrees with U.S. Supreme Court decisions overturning Roe v. Wade, 410 U.S. 113 (1973), protecting the right of an individual to possess firearms, and that a contraception mandate imposed by the federal government violated the Freedom Restoration Act.”
The opinion emphasized that the questionnaire stated that “it ‘requests [the candidate’s] opinion on settled legal precedent. These questions do NOT ask for your personal opinions on specific issues.’” (Emphasis added by the opinion.) The questions were “multiple choice – asking the candidate to agree with a specific justice or agree/disagree with the legal reasoning of a decision or the majority/dissent,” with no option for the candidate to explain their answer. The opinion noted that the questionnaire did not mention the code of judicial conduct.
The committee concluded:
The questionnaire by its own admission does not ask for the candidate’s personal opinions which would be perfectly acceptable as long as the responder was given the opportunity to explain that he/she could apply and uphold the law without regard to his/her own personal views. Instead, the questionnaire claims that it is seeking “opinions on settled legal precedent.” However, abortion rights, contraception and the right to bear arms, as of today, are still not truly settled, and the wording and format of the questionnaire . . . is such that candidate responses without any explanation might be viewed by the public however wrong it may be as a pledge, promise or commitment to perform his/her adjudicative duties of office other than in an impartial way. This is particularly true when there is no mechanism for the candidate to assure the public that he/she will faithfully and impartially carry out his/her duties if elected or for him/her to explain why he/she answered in the way that he/she did.
The Maryland committee advised that a sitting judge who is a candidate for election may respond to a questionnaire from the League of Women Voters that is published to provide information to voters regarding candidates. Maryland Advisory Opinion Request 2024-6. The opinion noted that the League describes itself as non-partisan and does not endorse candidates.
The questionnaire asked:
- Qualifications: How does your experience prepare you for the duties of this judgeship?
- Juvenile Justice: How would you address the problem of large numbers of minority youth being imprisoned?
- Diversion Programs: What are your views on diversion programs for behavioral problems and substance abuse?
- Challenges: What are the greatest challenges facing Maryland’s Circuit Courts and how should they be addressed?
The judge who asked the committee about the questionnaire was particularly concerned that responding to question 2 would violate the code.
The opinion noted that the code does not prohibit “a candidate-judge from expressing their opinion on important matters of public concern, notwithstanding the disputed legal and political positions and issues it may generate as long as the statements do not violate the ethical rules.”
The committee explained that to the extent that an answer to question 2 “may be interpreted as advocating for a particular position, i.e., to reduce the number of minority youth being incarcerated,” the answer could constitute a statement “with respect to a case, controversy, or issue that is likely to come before the court” and, depending on the answer, “may be viewed as making a ‘pledge[] or promise that is inconsistent with the impartial performance of the adjudicative duties of the office.’” However, the committee noted that there was “an alternative way to approach Question No. 2 that would not raise ethical problems:” a candidate could treat the question as “an attempt to elicit a response to discrimination in society and the right of all to be afforded equal justice under the law” and could take “the opportunity to express their strictest fidelity to justice and equal justice under the law.”
The Pennsylvania Judicial Ethics Advisory Board simply answered “yes” to the question “May I respond to questionnaires?” and quoted the comment to the code. Pennsylvania General Guidance 2-2023.
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