Genuine, compelling, and indefinable

In the recent decision French v. Jones (9th Circuit December 7, 2017), the U.S. Court of Appeals for the 9th Circuit described how the “strict First Amendment framework” for challenges to restrictions on judicial campaign speech established in 2002 “underwent significant changes” in 2015.  In Republican Party of Minnesota v. White White, 536 U.S. 765 (2002), the U.S. Supreme Court held unconstitutional a prohibition on judicial candidates announcing their views on disputed legal and political issues, finding it was not narrowly tailored to serve the state’s interest in judicial impartiality.  In contrast, despite a similar First Amendment challenge, the Court upheld a prohibition on personal solicitation of campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

According to the 9th Circuit in French v. Jones:

  • Unlike White, the decision in Williams-Yulee “did not attempt to define precisely what judicial integrity or impartiality means” but emphasized that the concept of public confidence in judicial integrity “is genuine and compelling.”
  • Unlike White, the decision in Williams-Yulee “flatly rejected” arguments based on an under-inclusive analysis, noting it was “somewhat counterintuitive to argue . . . that a law violates the First Amendment by abridging too little speech” and emphasizing that a “State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.”
  • Unlike White, the decision in Williams-Yulee did not require that a restriction be “perfectly tailored,” only narrowly tailed, declining to “’wade into [the] swamp’ of unworkable line drawing” and respecting the state’s decision to address “evils in their most acute form.”

Thus, the 9th Circuit concluded that “Williams-Yulee marked a palpable change in the approach to state regulations of judicial-campaign speech” that now allows states to take “a middle ground” that both “abridge[s] some judicial-campaign speech and preserve[s] its election system . . . .’”  The court explained that the change was “perhaps best exemplified by our unanimous en banc decision in Wolfson” v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), in which it had upheld numerous clauses in the Arizona code of judicial conduct.

In French v. Jones, the 9th Circuit upheld the rule in the Montana code of judicial conduct providing that “a judge or judicial candidate shall not … seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate….”  The challenged rule is the same as Rule 4.1(A)(7) of the 2007 American Bar Association Model Code of Judicial Conduct except that the Montana version extends to endorsements by non-judicial officer holders and candidates as well as parties.

The 9th Circuit discerned 2 compelling state interests achieved by the endorsements rule:  an interest in both actual and perceived judicial impartiality and “a related but distinct” and perhaps “more compelling still” interest in a structurally independent judiciary.

With respect to impartiality, the Court noted “the regrettable but unavoidable consequence that judges who personally ask for political endorsements may diminish the public’s faith in the impartiality of the judiciary, whether a judge’s actual impartiality is affected or not.”  With respect to the judicial independence, it noted the numerous state models for judicial selection but emphasized, “[i]t is not for us to choose among these systems because the U.S. Constitution does not prescribe any particular form for state judicial elections.”  What is important, the court explained, is that “Montana has chosen to structure its third branch differently from the political branches,” and it declined to “fault its efforts to reinforce that choice in the manner in which it elects its judges” by prohibiting the solicitation and use of endorsements from political parties that might make the public “view the judiciary as indebted to, dependent on, and in the end not different from the political branches.”

The 9th Circuit rejected the plaintiff’s argument that the rule is fatally under-inclusive because it applies to endorsements from political organizations but not from other interest groups, corporations, and entities.  The court noted that “political parties are simply not the same as interest groups and private individuals.  Parties have comprehensive platforms, take firm positions on a multitude of issues, and are capable of exerting more influence in an election than most (if not any) interest groups.”  It also explained:

Once we turn to Montana’s interest in judicial independence (as opposed to mere judicial impartiality) the differences between political parties and interest groups grow starker.  An endorsement from a political party threatens the public perception of judicial independence to a greater degree than an endorsement from an interest group.  In all cases, an endorsement suggests the possibility of a quid-pro-quo exchange in which a judge may rule favorably for the endorsing entity.  But whereas a judge may only infrequently encounter litigation implicating an endorsing interest group, he or she is likely to often face legislation an endorsing political party has either supported or opposed.  Dependence on an endorsing political party brings into question whether a judge will be able to independently interpret and review a given piece of legislation and thus goes to the core of the separation of powers.

The 9th Circuit also rejected the plaintiff’s argument that the rule is impermissibly under-inclusive because it permits candidates to solicit and use political parties’ money but not their endorsements.

An endorsement is a public and easily communicable show of solidarity.  Although most campaign contributions are also public information, . . . they are less forceful and less easily communicable.  Unlike endorsements, information on campaign contributions typically requires extra work for voters to access.  It would therefore not be surprising for judicial candidates to derive more value from endorsements from political parties and popular politicians (including politicians outside Montana) than from even sizeable donations.  Montana could reasonably conclude that endorsements are more suggestive of a quid-pro-quo exchange and pose a greater risk to the public perception of its judiciary than donations.

Rejecting the plaintiff’s argument that the rule was unconstitutionally under-inclusive because it only applied during campaigns and to endorsements from “non-judicial office-holders,” the Court stated, “[i]t is almost self-evident that the dangers of actual and perceived bias and dependence are not nearly as great when the candidate is not yet running for office or when she uses endorsements from nonpartisan judges.”

The 9th Circuit rejected the argument that the rule is over-inclusive because it does not allow a candidate’s campaign committees to seek and use political endorsements.  The court stated that the “danger lies in the public losing trust in its judges from hearing political endorsements; it is irrelevant whether the candidate or the candidate’s committee delivers the message.”

The 9th Circuit rejected the argument that a party endorsement is just “shorthand for the [numerous] views the candidate holds.”  The court explained:

Seeking and using of political endorsements is nothing like announcing one’s views on certain issues.  An endorsement is a thing of value:  it may attract voters’ attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate and indicate that he or she is capable of mounting a successful campaign.  Such things of value are usually not given out for free, and even when they are, the mere perception of quid pro quo in judicial campaigns might undermine the public’s trust in the impartiality and independence of its judiciary.

Finally, the 9th Circuit rejected the argument that Montana had presented no evidence that political endorsements cause harm and that the fact that states with partisan elections not only allow but require political endorsements demonstrates that there is no harm.  The court emphasized that “the Supreme Court has flatly stated that ‘[t]he concept of public confidence in judicial integrity … does [not] lend itself to proof by documentary record.’”  It concluded:

Montana need not present empirical evidence of something as abstract as a decrease in actual or perceived judicial impartiality and independence for its rule to survive strict scrutiny.  And as to the point regarding states with partisan judicial elections, neither Williams–Yulee nor Wolfson so much as thought about invalidating restrictions designed to preserve nonpartisanship in judicial elections simply because there are some states that have partisan elections and appear to be doing just fine.  If that fact alone were sufficient to invalidate a restriction on judicial-campaign speech, then nonpartisan judicial elections could be themselves deemed unconstitutional.  We decline to reach such a result.

Although French suggests that eliminating judicial elections altogether would be a less restrictive means to accomplishing Montana’s stated goals, Williams–Yulee and Wolfson foreclose that suggestion.  Those cases confirm that the states have every right to devise and regulate a system of nonpartisan judicial elections. . . .  The Constitution does not demand that the states follow the federal model and appoint their judges, and if it permits the states to hold partisan judicial elections, we see no impediment to the states adopting nonpartisan judicial elections, as Montana has done.

There is a summary of caselaw since Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.

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