The rule of law is one of the characteristic institutions of a democracy, and
of course, this country. To preserve the rule of law, the judiciary must be
independent and not subject to pressure from outside influences. Further, the
public must have the confidence and trust that its judiciary is impartial,
unbiased and free from partisan interests.
To create and strengthen public confidence, states have implemented codes of
judicial conduct and passed statutes that prohibit judicial candidates from
announcing their views on, or committing themselves in advance to, issues or
controversies that may come before the court. Judges who make advance
commitments, the reasoning goes, would be under pressure to honor those
commitments if elected. This pressure would hamper the judge’s ability to make
an impartial decision and would ultimately undermine the credibility of his or
her decision and the judicial system.
These prohibitions on speech are seen as essential to further the state
interest in maintaining, or as least appearing to maintain, the integrity of the
judiciary. They also serve to distinguish judicial elections from legislative
elections, as many believe that judicial elections are not and should not be the
same as legislative elections. The argument is that since judges perform a
special function, restrictions on what they can say during an election are
desirable and necessary. Supporters of such rules argue judicial candidates
should be subject to speech restrictions that would be impermissible in other
elections.
Prohibiting speech, however, conflicts with another essential element of our
democracy, freedom of speech. This conflict becomes particularly problematic for
candidates seeking election to judicial office. Thirty-nine states use popular
elections in some form to elect judges to their general jurisdiction trial
courts, appellate courts or both. The candidates campaigning for these posts
must balance the need to inform the voting public of their views and the need to
avoid breaking the law or committing an ethics violation by providing too much
information.
The rules states use to regulate judicial campaign speech are patterned after
the codes of judicial conduct adopted by the American Bar Association.
ABA model Code of Judicial Conduct
As the national representative
of the legal profession, the ABA adopted the Code of Judicial Conduct to
establish standards for ethical conduct of judges and to provide guidance to
assist judges in establishing and maintaining high standards of judicial and
personal conduct.
The ABA first proposed standards of conduct in its 1924 Canons of Judicial
Ethics. These canons were replaced by the 1972 ABA Code of Judicial Conduct.
Among the ABA canons was Canon 7 B(1)(c), known as the announce clause, which
stated that a judicial candidate “should not make pledges or promises of conduct
in office other than the faithful and impartial performance of the duties of the
office; [nor] announce his views on disputed legal or political issues.” This
particular provision was modified in 1990 when the ABA revised the 1972 code.
The 1990 Model Code of Judicial Conduct retained the “pledges or promises”
section of the canon but replaced the announce clause with a “commit” clause
stating that a judicial candidate shall not 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." The previous announce clause was
replaced because it was found to be too broad and too restrictive. Nevertheless,
nine states — Arizona, Colorado, Iowa, Maryland, Minnesota, Mississippi,
Missouri, New Mexico and Pennsylvania — retained the 1972 version in their state
codes of conduct.
Minnesota’s retention of the announce clause led to a challenge of its
constitutionality by a judicial candidate in that state. The conflict between
restrictions on judicial candidates' speech and freedom of speech eventually
made its way to the U.S. Supreme Court in the case Republican
Party of Minnesota v. White.
Republican Party of Minnesota v. White
The Supreme Court
ruled 5-4 on June 27, 2002, that Minnesota Code of Judicial Conduct Canon
5(A)(3)(d)(i), known as the announce clause, was unconstitutional. This clause
stated that a “candidate for a judicial office, including an incumbent judge,”
shall not “announce his or her views on disputed legal or political issues.”
Gregory Wersal, a candidate for associate justice of the Minnesota Supreme
Court, brought the suit challenging the statute. Wersal first ran for the office
in 1996. During his campaign he distributed literature criticizing several
Minnesota Supreme Court decisions concerning crime, welfare and abortion. A
complaint was filed with the Office of Lawyer’s Professional Responsibility
based in part on this literature. The lawyers board dismissed the complaint and
expressed doubt whether the announce clause was constitutional. Nonetheless,
Wersal withdrew from the election fearing that further ethical complaints would
hurt his practice.
In 1998, Wersal again ran for the same office. This time he sought an
advisory opinion from the lawyers board regarding whether it would actually
enforce the announce clause. The board again expressed doubts about the
constitutionality of the clause, but said it could not advise him because he had
not submitted a list of announcements he wished to make. Subsequently, Wersal
filed suit in federal district court seeking a declaratory judgment that the
announce clause violated the First Amendment. The district court found against
Wersal and held the announce clause constitutional, a decision the 8th U.S.
Circuit Court of Appeals affirmed. The U.S. Supreme Court then agreed to hear
Wersal's appeal.
Justice Antonin Scalia wrote the majority opinion and clarified the meaning
of the announce clause. He established that all parties agreed that the clause
covered much more than a judicial candidate’s promise to decide an issue in a
certain way, that it extended “to the candidate’s mere statement of his current
position, even if he did not bind himself to maintain that position after
election.” The majority summed up by stating:
“It is clear that the announce clause prohibits a judicial candidate
from stating his views on any specific nonfanciful legal question within the
province of the court for which he is running, except in the context of
discussing past decisions — and in the latter context as well, if he expresses
the view that he is not bound by stare decisis” (the doctrine of
following precedent set by earlier court decisions).
The Court then turned to the focal point of the case. Quoting the 8th
Circuit, Scalia said the announce clause both prohibited speech on the basis of
its content and burdened core First Amendment political speech. Thus the proper
test to apply to determine the constitutionality of such a speech restriction,
he wrote, is strict scrutiny. Strict scrutiny requires the state to prove that a
restriction is narrowly tailored to serve a compelling state interest. In this
case the state established two interests: 1) preserving the impartiality of the
state judiciary and 2) preserving the appearance of the impartiality of the
state judiciary.
The majority clarified the meaning of impartiality before deciding whether it
was a compelling state interest. Three different definitions of impartiality
were examined and applied to the announce clause. Consequently the Court
determined that all three definitions of impartiality failed to meet the
standards to satisfy the strict-scrutiny test. As a result, the Court was found
that the announce clause violated the First Amendment.
The Court majority went on to say that “there is an obvious tension between
the article of Minnesota’s popularly approved constitution which provides that
judges shall be elected, and the Minnesota Supreme Court’s announce clause which
places most subjects of interest to voters off limits.” The Court argued that
“the First Amendment does not permit … leaving the principle of elections in
place while preventing candidates from discussing what the elections are
about.”
Within days of the decision, legal scholars and experts weighed in both for
and against it. Some hailed it as a major First Amendment victory that would
open a wider scope of debate. Others said it was a bad decision that would lead
to highly politicized judicial elections resulting in a biased judiciary.
Everyone did seem to agree that the decision would affect remaining
campaign-speech restrictions.
Post-White legislative action
The White decision had
an almost immediate effect. The Missouri Supreme Court repealed its announce
clause in July 2002 based on the U.S. high court's ruling in White. In
August, a U.S. district court ruling on a case in which a stay had been issued
to await the outcome of the Supreme Court’s consideration of White, found
no distinction between Canon 5(1) of Texas’s Code of Judicial Conduct and
Minnesota’s announce clause and declared it unconstitutional in Smith
v. Philips. Also in August, the California Commission on Judicial
Performance, citing the White decision, dismissed a proceeding against a
former judge charged with campaign-speech violations. In November, Pennsylvania
amended its judicial code of conduct by repealing its announce clause. In
addition, Ohio, Indiana, Kentucky, Florida and Louisiana all issued advisory
opinions or memoranda concerning the White decision and their own
judicial codes.
One of the biggest changes occurred in April 2003 when the North Carolina
Supreme Court revised that state’s Code of Judicial Conduct in response to
White and two cases discussed below, Bonner and Spargo.
Canon 7 of the North Carolina code, which governs political activity, does away
with the “pledges or promises” clause, allows judicial candidates to endorse
other candidates for judicial office, and allows judicial candidates to directly
seek campaign contributions from individuals. The seven justices defended the
changes as a reasonable response to the above-cited cases and also as a
preemptive measure to prevent future lawsuits. The new code is considered to be
the most liberal in the country, hypothetically allowing a candidate to promise
to decide cases in a certain way.
Post-White cases
In October 2002, the first major court case
affected by White was decided in the 11th U.S. Circuit Court of Appeals.
The court ruled in Weaver
v. Bonner that two sections of the Georgia Code of Judicial Conduct were
unconstitutional. In this case, a candidate for judicial office, George M.
Weaver, was publicly reprimanded by the Special Committee on Judicial Election
Campaign Intervention for violating Canon 7(B)(1)(d), which prohibits making
false and misleading statements. Weaver was charged with deliberately engaging
in “unethical, unfair, false, and intentionally deceptive” campaign practices
after he ran an ad on TV characterizing his opponent’s views on a number of
issues. Weaver subsequently filed suit challenging Canon 7(B)(1) as well as
Canon 7(B)(2), which prohibits judicial candidates from personally soliciting
campaign funds.
The 11th Circuit ruled that Georgia’s canon prohibiting false and misleading
statements was not narrowly tailored to serve the state’s interest in preserving
the integrity, impartiality and independence of the judiciary because it did not
afford the requisite “breathing space” to protected speech. The court stated
that an actual-malice standard must be applied to candidate speech during
political campaigns. This standard limits restrictions on candidate speech
during an election to false statements made with knowledge of falsity or with
reckless disregard as to whether the statement is false. The Georgia canon
prohibited not only these statements but also false statements negligently made
and true statements that were misleading or deceptive or contained a material
misrepresentation. The court reasoned that since these types of statements are
inevitable in free debate, they must be protected to avoid chilling protected
speech.
The special committee argued that the actual-malice standard was not
appropriate for judicial elections and that a lower standard should be adopted.
The 11th Circuit disagreed, writing:
“We believe that the Supreme Court decision in White suggests
that the standard for judicial elections should be the same as the standard for
legislative and executive elections ... we agree that the distinction between
judicial and other types of elections has been greatly exaggerated, and we do
not believe that the distinction, if there truly is one, justifies greater
restrictions on speech during judicial campaigns than during other types of
campaigns.”
The 11th Circuit also found unconstitutional the prohibition against judicial
candidates personally soliciting campaign contributions. The court pointed out
that the canon does not allow the candidate to solicit funds but does allow the
candidate’s election committee to do so, thus completely chilling the
candidate’s ability to speak to potential contributors or endorsers. The court
shrugged off any impartiality concerns, saying that personal solicitation does
not suggest that a candidate will be partial if elected. A “successful candidate
will feel beholden to the people who helped get him elected regardless of who
did the soliciting of support” the 11th Circuit said.
The next case to affect judicial campaign speech came in February 2003, when
the a federal judge in the northern district of New York ruled in Spargo
v. N.Y. State Commission on Judicial Conduct. The New York State
Commission on Judicial Conduct filed complaints against Justice Thomas Spargo
alleging various charges of misconduct. The commission’s complaint claimed that
Spargo “failed to observe high standards of conduct; failed to avoid impropriety
and the appearance of impropriety; failed to respect and comply with the law;
and failed to act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary” as required by the New York
Code of Judicial Conduct. Allegations included that Spargo: 1) offered items of
value to encourage votes on his behalf during his campaign to become town
justice; 2) while sitting as town justice, failed to disclose to the defense
that he had represented the county district attorney's campaign, which still
owed him $10,000 for legal services rendered, and failed to disqualify himself
as town justice in cases prosecuted by the D.A., based on this information; 3)
while town justice, “attended governmental sessions for the recount of
presidential votes in … Florida as an observer for the Republican Party” and
“with the aim of disrupting the recount process, participated in a loud and
obstructive demonstration.” Spargo, in turn, filed a complaint challenging the
constitutionality of certain sections of the New York code.
District judge David N. Hurd found that the sections ordering judges and
judicial candidates to “refrain from inappropriate political activity” were
impermissible prior restraints upon the rights guaranteed by the First
Amendment. Hurd relied on White and, applying strict scrutiny, found that
the New York code of conduct was not narrowly tailored to serve the compelling
state interest of preserving judicial independence.
Hurd then looked to the sections that ordered judges to “uphold the integrity
and independence of the judiciary” and “to avoid impropriety and the appearance
of impropriety in all of the judge’s activities.” It found them void because of
vagueness. Hurd said that “the language of the rules provided no reasonable
opportunity for a person of any level of intelligence to know what conduct would
be prohibited.”
In December 2003, however, the 2nd Circuit vacated Hurd’s judgment and
remanded the case back to the district court. The 2nd Circuit said the lower
court should abstain from exercising jurisdiction over Spargo’s constitutional
challenge. The trial court, it said, should instead defer to the disciplinary
proceeding pending before the New York State Commission on Judicial Conduct,
letting it decide on the constitutional issue. (Spargo
v. N.Y. Comm. on Judicial Conduct, 351 F. 3d 65 (2nd Cir. 2003) cert.
denied 124 S. Ct. 2812 (June 2004.))
Before the 2nd Circuit’s decision, it seemed that those who feared
White would open a Pandora’s box and lead to a loosening of judicial
election standards were correct. They feared, among other things, that the
White decision would open the door for challenges against the other
clauses that restricted candidate’s speech; i.e., the “commit” clause and the
“pledges or promises” clause. However, a number of rulings in early 2003 seemed
to indicate that this would not be the case.
The Florida Supreme Court decided the case In
re Patricia Kinsey in 2003. The state high Court upheld the Florida
Judicial Qualifications Commission discipline against a judge who had challenged
the commission’s findings by asserting that her campaign speech was protected by
the First Amendment.
The Florida Supreme Court determined that, during her election campaign,
Judge Kinsey had violated Canon 7 of Florida’s Judicial Code by fostering the
impression that she held a prosecutor’s bias. The court found that Kinsey’s
statements during the campaign and in her campaign materials gave the distinct
impression that a judge's role in criminal proceedings was to combat crime and
support police officers as opposed to conducting an impartial tribunal where
justice was dispensed without favor or bias. The high court held that these
statements clearly affected Kinsey’s appearance of impartiality and were not
protected by the First Amendment. The decision upheld Florida’s
pledges-or-promises clause and commit clause, finding them to be narrowly
tailored to serve a compelling state interest.
In reaching its decision, the Florida court in essence concluded that the
ruling in White did not affect the Kinsey case since it struck
down Minnesota’s announce clause and did not address that state’s
pledges-or-promises clause. The Florida court also found Kinsey guilty of
violating canons prohibiting making false statements and false representations
about her opponent.
In June 2003, New York’s highest court, the Court of Appeals, decided two
cases that affected judicial campaign conduct.
In In
re Raab (2003), New York’s highest court considered the case of Nassau
County Supreme Court Justice Ira J. Raab, who, relying on the White
decision, answered a complaint by the state Commission on Judicial Conduct that
he had engaged in inappropriate political activity. Raab contended that the
rules restricting political activity of judges and judicial candidates were not
narrowly tailored to serve a compelling state interest, did not withstand strict
scrutiny and, therefore, violated his First Amendment rights.
The New York Court of Appeals reviewed the White decision and found it
significantly distinguishable from the situation in Raab. The justices
noted that White did not declare that judicial candidates must be treated
the same as non-judicial candidates or that their political activity or speech
may not legitimately be circumscribed. They also noted that the Supreme Court
distinguished Minnesota’s announce clause from other rules restricting the
speech of judicial candidates and that the Supreme Court took no position on the
validity of the other judicial conduct restrictions. Thus, the New York court
found that the canons restricting a judge or judicial candidate from engaging in
inappropriate political activity (such as participating in other candidates’
campaigns or making contributions to political organizations supporting other
candidates or party objectives) are narrowly tailored to serve a compelling
state interest and are constitutional.
The other case decided in June 2003 was In re
Watson. In this case, City Court Judge William Watson appealed the
sanction handed down by the Commission on Judicial Conduct, arguing in part that
New York’s pledges or promises rule impermissibly restricts constitutionally
protected campaign speech. The commission had issued a complaint against Watson
during his election campaign for a city court judgeship, alleging misconduct
arising from statements he made during the campaign.
The New York Court of Appeals found that Watson did in fact violate the
pledges or promises clause by effectively promising, if elected, to aid law
enforcement rather than apply the law neutrally and impartially. Analyzing the
White decision, the high court found that White did not compel a
particular result in Watson. As in Raab, the court noted that
White distinguished the announce clause from other restrictions and that
New York has a pledges or promises clause. The New York court determined that
the pledges or promises clause withstood strict-scrutiny analysis, appropriately
balanced the interests of litigants and the rights of judicial candidates and
voters, and was constitutional.
Also in 2003, the Supreme Court of Maine decided In re
Dunleavy. The Maine Committee on Judicial Responsibility and Disability
found that a probate judge, James P. Dunleavy, had violated the state Code of
Judicial Conduct by, among other things, soliciting funds for his unsuccessful
campaign for a state senate seat. Dunleavy answered that the canon in question
violated his First Amendment rights. Relying on Weaver, White and
Spargo, he contended that the canon had a chilling effect on a
candidate’s ability to speak to potential contributors and that the restrictions
were impermissibly designed to treat judicial elections differently from
legislative elections.
The Maine high court found that all the cases Judge Dunleavy relied upon were
distinguishable from this case, and that his personal solicitations exposed him
to suggestions of bias and compromised the appearance of impartiality
fundamental to the integrity of the judiciary. The court held that the canon
survived strict scrutiny and was constitutional.
Another case concerning judicial campaign speech was decided in a U.S.
District Court in Ohio on Sept. 14, 2004. In O’Neill
v. Coughlan, District Judge Ann Aldrich granted a motion for a
preliminary injunction barring the Ohio Office of Disciplinary Counsel from
pursuing a complaint filed against Judge William O’Neill for violations of
judicial canons.
The complaint alleged that O’Neill violated these canons by repeatedly
identifying his party affiliation in his campaign materials and by making
statements implying that the Ohio Supreme Court was for sale to campaign
donors.
O’Neill sued the disciplinary counsel after he received a letter from them
announcing their investigation. Relying, in part, on the U.S. Supreme Court’s
decision in White, O’Neill asserted the canons in question could not be
enforced because they violate judicial candidates’ First Amendment right to
freedom of speech.
Aldrich agreed. She wrote that the canons restrained “speech on the basis of
content, a type of restriction that the government generally has no right to
impose.” She added:
“The First Amendment does not permit the State to dictate what
information the voters may be ‘trusted’ with. The First Amendment guarantees
voters the right to obtain what ever information they like, and to decide what
information is relevant to their decision on whom to elect to the bench.
Conversely, for the voters’ First Amendment right to mean anything, judicial
candidates must be allowed to impart whatever information they wish about their
party membership or affiliation, their views on political or legal issues, and
their personal philosophy — without restriction.”
Aldrich deferred ruling on making the injunction permanent and on the
disciplinary counsel’s motion to dismiss. The judge’s order can be immediately
appealed.
Another case was decided on Oct. 19, 2004, in a district court in Kentucky.
This was the first of a line of nearly identical cases. Family Trust
Foundation of Kentucky v. Wolnitzek, No. 6: 04-473-DCR (E.D. Ky.) District
Judge Danny Reeves decided that Canon 5B(1)(c) of Kentucky’s Code of Judicial
Conduct, which contains both a pledges-and-promises clause and a commit clause,
violated the First Amendment.
The decision came in a lawsuit filed by a Kentucky nonprofit organization,
the Family Trust Foundation of Kentucky. The Family Trust Foundation sent
surveys to all Kentucky judicial candidates asking them to answer questions
about contentious issues. None of the candidates fully responded to the survey,
citing concerns about violating the canon on judicial speech.
The Family Trust Foundation filed a lawsuit alleging that the state’s
judicial-speech restrictions violated the foundation’s and the voters’ rights to
receive important political information and that the restrictions violated the
candidates’ rights to free speech. Reeves quoted the White decision
throughout his opinion and used similar reasoning as the U.S. Supreme Court when
he came to the conclusion that “Kentucky’s canon of judicial conduct that
professes to prohibit candidates from making promises, pledges or commitments in
fact limits the candidate’s ability to announce his or her views in violation of
the First Amendment to the United States Constitution.”
What is particularly interesting about this decision is that the canon
contains both a pledges-and-promises clause and a commit clause, neither of
which were addressed in the White opinion but both of which were upheld
in previous court cases. In his opinion, however, Reeves wrote:
“[T]he interpretation and application of the promise and commit
clauses in Canon 5B(1)(c) have clearly been used by the state to reach the same
speech … protected by the First Amendment … i.e., information on the
legal issues of interest to the voting public, including a candidate’s personal
views and beliefs. Kentucky is simply using the promises and commit clauses as a
de facto announce clause.”
North Dakota Family Alliance v. Bader was decided in March 2005. In
this case a U.S. district court in North Dakota found the “pledges and promises”
and the “commit” clauses of the North Dakota Code of Judicial Conduct to be
overbroad and unconstitutional. Judge Daniel L. Hovland wrote that “both
[clauses] essentially embrace the same speech as the 'announce clause' that was
struck down by the U. S. Supreme Court in White.” He also presciently
noted “a careful reading of the majority opinion in White makes it clear
that the “pledges and promises clause” and the “commitment clause” are not long
for this world.”
Indeed, in July 2005 a U.S. district court in Alaska decided Alaska Right
to Life Political Action Committee v. Feldman, concluding that “the 'pledges
and promises clause' and the 'commitment clause' found in the Alaska Code of
Judicial Conduct, when viewed as mandatory as opposed to advisory, prohibit the
same type of constitutionally-protected speech guaranteed by the United States
Supreme Court in Republican Party of Minnesota v. White.” The two clauses
were declared unconstitutional.
U.S. district courts in Kansas and Indiana, in July 2006 and November 2006
respectively, came to the same conclusion concerning the same canons in their
own codes of judicial conduct.
“Commitment clause” challenges were also launched in two other states,
Pennsylvania and Kentucky, in 2005 and 2006, but both were dismissed for lack of
standing.
Currently there is at least one lawsuit pending challenging “pledges and
promises” and “commitment” clauses, that is in Arizona.
ABA’s actions
The White decision has also spurred the ABA to
renew its efforts to evaluate and amend the Model Code of Judicial Conduct. The
ABA House of Delegates approved amendments to the Model Code in August 2003 in
response to White. On Sept. 24, 2003, the ABA appointed a joint
commission to evaluate the model code of judicial conduct to review and revise
the code.
On Dec. 14, 2005, the joint commission released for public comment the final
draft report of its proposed new canons and rules. The commission set March 15,
2006, as the deadline for comments, and on Oct. 31, 2006, it issued its final
report recommending changes to the code. The new code is to be deliberated at
the ABA’s mid-year meeting in February 2007.
White revisited
On Jan. 23, 2006, the Supreme Court declined
to hear an 8th Circuit case concerning other canons of Minnesota’s Code of
Judicial Conduct. In a continuation of White, the 8th Circuit found that
the “partisan-activities clause,” which prohibits judicial candidates from
identifying themselves with a political party, attending political gatherings or
seeking, accepting, or using endorsements from a political organization, and the
“solicitation clause,” which prohibits a judicial candidate from personally
soliciting or accepting campaign funds, violate the First Amendment. Thirty-one
other states have rules similar to these Minnesota rules. How this decision will
affect them, and the tone of judicial campaigns in the future, remains to be
seen.
Updated February 2007
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