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 www.ncsc.org/cje.

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).