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.

Above the partisan fray

In a challenge to provisions in the Kentucky code of judicial conduct, the U.S. Court of Appeals for the 6th Circuit (1) held unconstitutional bans on judicial candidates making speeches for or against a political organization or candidate, campaigning as a member of a political organization, and making misleading statements, but (2) upheld prohibitions on judges and judicial candidates making contributions to a political organization or candidate, publicly endorsing or opposing a candidate for public office, acting as a leader or holding office in a political organization, knowingly or with reckless disregard for the truth making false statements during a campaign, and making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office in connection with cases, controversies, or issues that are likely to come before the court.  Winter v. Wolnitzek, Opinion (6th Circuit August 24, 2016).  (Thus, the Court affirmed in part and reversed in part the holding of the U.S. District Court for the Eastern District of Kentucky discussed in a previous post.)

The 6th Circuit stated:

Regulating campaign speech is not easy.  It’s not supposed to be.  But treating elections for the courts just like elections for the political branches does not make sense either. Candidates for judicial office, if elected, are supposed to follow the rule of law — no matter current public opinion, no matter the views of the political branches, no matter the views of the parties that support them.  But candidates for the other offices are permitted to, indeed often expected to, listen to the views of their constituents and parties.  Navigating these cross-currents is no simple task . . . .

The Court distinguished the rules it was overturning on campaigning as a member of a party and making speeches on behalf of a party from the rules it was upholding because the former denied judicial candidates the means of effectively running their own campaigns while the latter kept “judges above the partisan fray of trading political favors” and prevented “the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”  It explained “[t]here is a distinction between speech-limiting regulations that limit all judges (elected or not) and those that hamstring judges in their efforts to run for election.”  The Court noted that “a state ‘cannot have it both ways.  If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate,” but concluded, “there is no having-it-both-ways problem with a contributions limit like this one,” for example.

A contribution to a political organization or a candidate in a different campaign “is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker.” . . .  While “[j]udicial candidates have a First Amendment right to speak in support of their campaigns,” . . . they do not have an unlimited right to contribute money to someone else’s campaign. . . .

Financial contributions, we realize, amount to speech. . . .  But the alignment between speech and money makes a difference only with respect to Janus-faced regulations that tell judicial candidates to run for office but deny them the tools for doing so.  That is not what this regulation does.  A contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign.  There is “a dividing line between” the speeches clause, “which impermissibly bars protected speech about the judge’s own campaign,” and the contributions clause, “which addresses a judge’s entry into the political arena on behalf of his partisan comrades.”

Upholding the prohibition on false statements, the Court noted that it had recently invalidated an Ohio ban on false statements that covered all non-judicial candidates for political office, but stated that the Ohio law was broader than the Kentucky rule and emphasized that Kentucky’s interest in preserving public confidence in the honesty and integrity of its judiciary is narrower and “more compelling than Ohio’s purported interest in protecting voters in other elected races from misinformation.”

However much or however little truth-bending the public has come to expect from candidates for political jobs, “[j]udges are not politicians,” and a “State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” . . .  Kentucky has a “vital state interest” in safeguarding the public’s confidence in the honesty of its judiciary, . . . and the State’s ban on materially false statements by judicial candidates survives strict scrutiny — at least facially.

But the Court concluded that a ban on misleading statements “adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment.”  The Court is the sixth court to declare a prohibition on judicial candidates’ making misleading statements unconstitutionally vague and broad.  See also Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001); Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (provision in Georgia code); In re Chmura, 608 N.W.2d 31 (Michigan 2000); In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014); O’Toole v. O’Connor, 2016 U.S. Dist. LEXIS 109923 (U.S. District Court for the Southern District of Ohio 2016).

There is a document summarizing all caselaw since the U.S. Supreme Court decision in Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site at

Compelling interests

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.

Post Williams-Yulee

Affirming the judgment of the district court denying a motion for a preliminary injunction, the U.S. Court of Appeals for the 6th Circuit held that a judicial candidate’s campaign committee failed to demonstrate a likelihood of success on the merits of its claim that the temporal restrictions on solicitation and receipt of campaign contributions violated its First Amendment free speech rights and the Equal Protection Clause of the 14th Amendment.  O’Toole v. O’Connor (September 21, 2015).  The 6th Circuit relied on the U.S. Supreme Court’s April decision upholding the personal solicitation clause in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).