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Just before Election Day (2006), the United States District Court for the Eastern District of Kentucky preliminarily enjoined the enforcement of portions of the Kentucky Code of Judicial Conduct1 (“the Code”) in Carey v. Wolnitzek.2 The lawsuit was brought by Marcus Carey, a candidate for Justice of the Supreme Court of Kentucky, Sixth Appellate District, against the Kentucky Judicial Conduct Commission, the Kentucky Inquiry Commission, and the Kentucky Bar Association- -agencies charged with the enforcement of the Code. Carey is the latest decision in the ongoing controversy surrounding the scope of the free speech rights of candidates in state judicial elections.3

The Carey plaintiff made facial and as-applied First Amendment challenges to five canons of judicial conduct and one Kentucky statute governing judicial recusal. Mr. Carey sought during the 2006 campaign to post on his website answers to specific questions he had formulated—questions, he proposed, his opponent also answer: (1) his judicial philosophy in interpreting the law, (2) his opinion as to the controversial doctrine of “jural rights” under the Kentucky Constitution, (3) his beliefs as to when life begins as a legal matter, (4) whether the “best interest of the child” standard is an appropriate consideration in certain family law contexts, (5) what recognition should be given to God when discussing the foundations of American law and justice, and (6) whether there is a constitutional right to abortion or gay marriage under the Kentucky Constitution. Mr. Carey also sought to state publicly his political party affiliation, to seek endorsement from other political officials, and to personally solicit contributions during his campaign. The plaintiff alleged that all of these activities were unconstitutionally prohibited by the relevant portions of the Code of Judicial Conduct and the Kentucky statute at issue.

To begin, Carey challenged the “Commit Clause” of the Code of Judicial Conduct, which prohibits a judge or judicial candidate from “intentionally or recklessly mak[ing] a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court.”4 The court noted that the Kentucky Supreme Court, in its commentary on the Commit Clause, had stated that the current language of the clause was adopted with the intent that it conform to the holdings in Republican Party of Minnesota v. White5 and Family Trust Foundation of Kentucky v. Wolnitzek.6 However, the commentary specifically allows judges and judicial candidates to “inform the electorate of their judicial and political philosophies and their thinking on points of law so long as the candidates make clear that they will decide matters on the facts and law as presented and developed in the cases that come before them.”

Whether a judicial candidate intended his statements to be taken as a commitment to rule in a certain way, and whether a reasonable person would perceive the statements as such a commitment, the court opined, are determinative of whether the statements would violate the Commit Clause. Thus, the words spoken and the context in which they are spoken are the key to deciding the issue. Because Carey did not disclose the particular statements he intended to make in response to the questions he had formulated, the court held that it was impossible to determine whether Carey would violate the Clause by answering the questions. Distinguishing other cases, including the Family Trust Foundation case, where the plaintiffs had asked questions of judicial candidates and thus suffered an “informational injury” by the candidates’ refusal to answer, the court held that Carey had failed to show a credible, objective threat to his First Amendment rights. Therefore, the constitutional challenge to the Commit Clause was dismissed on grounds of lack of standing and ripeness.

The second and third provisions of law Carey challenged were the “Recusal Requirements,” contained both in the Code of Judicial Conduct7 and in Kentucky statutory law.8 These provisions generally require that a judge recuse himself in any situation in which either he has “expressed an opinion concerning the merits of the proceeding” or when his “impartiality might reasonably be questioned.”

The court found two problems with Carey’s challenge to the Recusal Requirements. First, without knowing what Carey intended to say in response to the questions he posed, it was impossible for the court to say whether those statements might cause Carey’s impartiality to reasonably be questioned. Second, the Recusal Requirements pertain only to sitting judges, not candidates. Thus, reasoned the court, “determining that Carey has established a current injury-in-fact as a result of the Recusal Requirements would require the Court to engage in a series of conjectures and hypotheticals regarding the content of the statements he intends to make during the campaign, the types of cases that would come before him if he is elected justice and whether the Kentucky Supreme Court would determine that Carey’s impartiality could be reasonably questioned in those cases as a result of the unknown statements.” Hence, the court dismissed Carey’s challenge to the Recusal Requirements on standing and ripeness grounds.

In dicta, the court “question[ed] whether recusal is actually a sanction for engaging in speech,” given that judges are required to recuse in a whole host of circumstances, including “benign activity” such as the judge’s relationship to a party to an action or his financial investments. It is an interesting question posed by the court, as it had been addressed by none of the parties to the Carey case. While not decided by the Carey court, left for argument another day, the court’s observation brings into question whether any judge or judicial candidate will ever have standing to challenge the constitutionality of the Recusal Requirements, if recusal is not tantamount to any injury to the judge or candidate.

The fourth ethics provision Carey alleged to be in violation of the First Amendment was the Code’s “Endorsement Clause,” which proscribes a judge or judicial candidate from “mak[ing] speeches for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office.”9 The court turned back Carey’s challenge to the Endorsement Clause, finding that the text of the clause itself did not prohibit Carey from seeking the endorsements of other political officials. Even though the Kentucky Supreme Court has yet to decide whether the Endorsement Clause prohibits his proposed endorsement-seeking, the court found that “it is highly likely that the Kentucky Supreme Court would interpret the clause in a way that would moot the constitutional issue raised by Carey.” Because Carey again failed to demonstrate that his proposed activities would in fact violate the clause, he “failed to establish the requisite injury required to satisfy the standing or ripeness doctrines.”

Fifth, Carey challenged the Code’s “Solicitation Clause,” which provides that a judge or judicial candidate “shall not solicit campaign funds, but may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support for the candidacy.”10 And lastly, the plaintiff ’s complaint challenged the constitutionality of the Code’s “Partisan Activities Clause.”11 This provision provides that a judge or judicial candidate “shall not identify himself or herself as a member of a political party in any form of advertising or when speaking to a gathering.” There is one exception to this rule contained in the provision itself: “If not initiated by the judge or candidate for such office, and only in answer to a direct question, the judge or candidate may identify himself or herself as a member of a particular political party.”

The district court found that Carey did have standing to raise First Amendment challenges to both the Solicitation Clause and the Partisan Activities Clause. By proposing to personally solicit campaign contributions and to publicly announce his political affiliation during the course of the campaign, the court found that Carey had stated his intention to act precisely in the way prohibited by these provisions. He therefore established a credible threat that he would be sanctioned for engaging in these activities. Due to the immediacy of the threat and the “considerable hardship” to the parties if the court did not address the matter, the court also found Carey’s Solicitation Clause and Partisan Activities Clause challenges ripe for review.

Applying strict scrutiny, the court declared both provisions unconstitutional. In doing so, the court rejected three purported justifications put forward by the defendants to save the Solicitation Clause. First, requiring a judge to raise funds through a committee does not further the state’s interest. In the case of actual partiality, it will not prevent a judge who is predisposed to favoring parties who contributed to his campaign from doing so. In the case of any partiality perceived by the public, the perception is unlikely to be dispelled where a judge’s committee solicits money on the judge’s behalf instead of the judge doing so himself.

Second, the clause does not further the state’s interest by prohibiting one-on-one solicitations. Campaign finance regulations make the identities of campaign contributors a matter of public record, and judicial candidates will presumably be in regular contact with their campaign committees. Non-contributors may therefore be identified by a process of elimination. “[A] solicitee’s fear of disfavor cannot be significantly reduced by solicitations through committees rather than by candidates.”

Third, the Solicitation Clause does not reduce the potential for corruption because it eliminates one-on-one solicitations by a candidate. Blatantly corrupt activities are prohibited by other provisions of the Code, so a ban on all direct solicitations with the aim of preventing corrupt solicitations is overbroad. The court therefore held that the Solicitation Clause “does not serve the state’s interest in preserving the actual or apparent impartiality of the elected judiciary.”

With respect to the Partisan Activities Clause, the court offered three reasons for striking it down as well. First, the Clause does not further the state’s interest in judicial impartiality or the appearance thereof. It does not prohibit speech for or against particular parties in any particular case, but only restricts speech identifying the candidate as a member of a political party. The court also held that preventing partiality toward a particular legal view was not a compelling state interest. The Clause, according to the court, is also a poorly suited means of ensuring a judge’s actual open-mindedness. Second, the court specifically rejected the defendants’ purported interest in ensuring “nonpartisan elections” and “judicial independence.” Permitting a candidate to state his political party affiliation would not change the nominating structure of an election or change the appearance of the ballot, turning a nonpartisan election into a partisan one. As it is, political party affiliations are a matter of public record and candidates are allowed to disclose their party membership, if asked directly; so the Partisan Activities Clause does not prevent the electorate from learning a candidate’s political party membership. Further, the Clause does not prevent political parties from publicly funding or endorsing a candidate.

Finally, the Partisan Activities Clause does not serve the state’s interest in avoiding the appearance of the Judiciary’s independence from the influence of political parties. The Clause is under-inclusive if its goal is to keep the public from learning the candidates’ political affiliations, as this information is a matter of public record. It does not prevent political parties from funding or endorsing judicial candidates at all. Therefore, the court held, it is not narrowly tailored to serve any compelling state interests proffered by the defendants, and is unconstitutional.

Accordingly, the court granted Carey’s motion for a preliminary injunction, but only as to the Solicitation Clause and the Partisan Activities Clause. As to all the other ethics rules challenged by Carey, the court granted the defendants’ motions to dismiss.

*Aaron J. Silletto is an associate in the Louisville (KY) based litigation group of Goldberg & Simpson, P.S.C.

 

Endnotes

1 Rule 4.300 of the Rules of the Kentucky Supreme Court (“SCR”). 

2 Carey v. Wolnitzek, No. 3:06-36-KCC, 2006 WL 2916814 (E.D. Ky. Oct. 10, 2006) (opinion and order granting plaintiff ’s motion for preliminary injunction in part, and granting defendants’ motions to dismiss in part). 

3 For additional historical background in this area of the law, see “Judicial Speech in Kansas,” Federalist Society State Court Docket Watch (Nov. 2006 ed.), at 3. 

4 SCR 4.300, Canon 5(B)(1)(c). 

5 536 U.S. 765 (2002) (holding that a judicial canon that a judge or judicial candidate shall not “announce his or her views on disputed legal or political issues” violates the First Amendment). 6 345 F. Supp. 2d 672 (E.D. Ky. 2004) (holding that the prior version of the Commit Clause, as well as a judicial canon that prohibits judges and judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office,” both violate the First Amendment). 

7 SCR 4.300, Canon 3(E)(1). 

8 Ky. Rev. Stat. § 26A.015(2)(e). 

9 SCR 4.300, Canon 5(A)(1)(b). 

10 SCR 4.300, Canon 5(B)(2). 

11 SCR 4.300, Canon 5(A)(2).

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