A federal district court permanently enjoined enforcement of provisions in the Kentucky code of judicial conduct prohibiting a judge or judicial candidate from:

• Making speeches for, paying an assessment or making a contribution to, or campaigning as a member of a political organization;
• Making pledges, promises, or commitments with respect to issues; or
• Making misleading statements.

Winter v. Wolnitzek, 2016 U.S. Dist. LEXIS 63412 (U.S. District Court for the Eastern District of Kentucky May 12, 2016).  It also held unconstitutional the prohibition on a judge engaging in “political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.”

Some of these provisions, the court found, were simply “closing the gate” after “the “horse has already escaped the paddock” – that is, they were indistinguishable from identifying as a member of a political party, which had previously been held to be protected political speech.  Other provisions it concluded were unconstitutionally vague, requiring a candidate “to perform an Olympic-caliber routine of mental gymnastics” to discern, for example, whether a statement was misleading or an issue or pledge involved improvement of the law.  (State judiciaries that want to maintain these restrictions should consider how to make them more definite and less ambiguous, perhaps by adding clarifying comments.)

However, the Court upheld prohibitions on a judge or judicial candidate:

• Making false statements;
• Acting as a leader or holding an office in a political organization; and
• Endorsing candidates.

These provisions, the court found, were narrowly tailored to ensure “that the county judge is not also the county political boss” and to differentiate judges from other politicians because “[c]itizens assume that politicians will lie” but “the public is unlikely to view a lying judge as a fair judge.”

The court also persuasively refuted several arguments frequently made in constitutional challenges to the canons.

For example, the plaintiffs argued that, rather than adopting prohibitions on speech, Kentucky could have chosen the less restrictive alternative of appointing its judges.  “The problem with that argument,” the court stated, is the U.S. Supreme Court decision on the ban on judicial candidates’ personally soliciting campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).  The Kentucky federal court explained:  “Replacing elections with an appointment system was surely an alternative in that case.  But the Supreme Court nevertheless found the challenged provision to be narrowly tailored, noting that ‘[a] state’s decision to elect judges does not compel it to compromise public confidence in their integrity.’”

As have plaintiffs in other cases, one of the plaintiffs in the Kentucky case argued that the canons were not narrowly tailored because they addressed only speech or conduct beginning the day after a non-judge candidate has filed his intention to run for judicial office.  The court stated it was “unclear what sort of alternative regulation [the plaintiff] has in mind.  A rule forbidding a lawyer to serve as a political leader if he is contemplating a judgeship in the future, perhaps?  [The plaintiff] does not say of course, but all of the alternatives that come to mind seem totally impractical if not downright Orwellian.”

 Further, one of the plaintiffs argued that the prohibition on acting as a leader in a political party was under-inclusive because it did not “prevent a judge from serving as an officer in the Federalist Society, the local FOP lodge, the local Freemason chapter, the local Right to Life chapter, or a host of other organizations.”  Rejecting that argument, the court approved the distinction drawn by the state.

The interest is not in preventing bias against parties; the interest is in preventing judges from being too involved in political machines.  And political parties control who goes on the ballot in most elections in the Commonwealth; the local Freemasons do not.  Thus, the state does not need to prevent a judge or candidate from leading the Freemasons.  It need only prevent him from leading a political party.

(Further, although the court did not note this, other parts of the code of judicial conduct may prevent a judge from serving as a leader in some non-political organizations as they prohibit a judge from any extra-judicial activity that would cast reasonable doubt on the judge’s capacity to act impartially as a judge.)

The decision in Winter v. Wolnitzek has been added to the summary of caselaw following Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.