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The Supreme Court held in Republican Party of Minnesota v. White1 that the announce clause in Minnesota’s Code of Judicial Conduct was unconstitutional. That decision has paved the way for numerous lawsuits challenging various state canons governing the practices of judicial candidates.

The Court’s holding provides a brief history of judicial elections and the canons that have been adopted in the United States to guide candidates’ behavior in such elections. According to the holding, before 1812, only Vermont chose its judges by election.2 By the time of the Civil War, most states had changed their systems so that they also elected their judges.3 During the 19th century and until 1924, judicial candidates’ election speech was unregulated.4 In 1924, the American Bar Association (ABA) adopted a canon providing that judicial candidates may not announce their views regarding conclusions of law.5 Some (but not all) of the states that elected judges adopted the same provision, or something similar. The clause was modified by the ABA in 1972, but it essentially remained the same and continued to forbid candidates from announcing their views, broadening the prohibited topic from “conclusions of law” to “disputed legal or political issues.” Minnesota adopted the latter clause, which was held unconstitutional in the above-mentioned White case.

In 1990, the ABA, concerned that the announce clause violated the First Amendment, adopted a replacement canon that prohibited judicial candidates from making “statements that commit or appear to commit the candidate to cases, controversies, or issues that are likely to come before the court.”6 This canon, along with others, has been litigated numerous times since White because it is often construed to have the same effect as an unconstitutional announce clause.

In May 2006, Kansas Judicial Watch (a political action committee), Judge Charles M. Hart (standing for retention election in 2008), and 2006 judicial candidate Robb Rumsey filed suit in the United States District Court for the District of Kansas to block enforcement of Kansas judicial canons preventing state court judicial candidates from responding to a questionnaire asking their views on legal and political issues, and foreclosing them from personally seeking public support. The case, Kansas Judicial Watch, et al. v. Stout, et al.,7 was brought against members of the Kansas Commission on Judicial Qualifications and members of the Disciplinary Administrator’s office— entities charged with disciplining judges and lawyers who violate the judicial canons of Kansas and the state’s Rules of Professional Conduct.

Specifically, the plaintiffs challenged the commits clause, which provides that judicial candidates should 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;”8 the pledges and promises clause, providing that judicial candidates “should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;”9 and a disqualification clause, requiring judges to recuse themselves when “a judge’s impartiality might reasonably be questioned.”10 Plaintiffs also brought suit to prevent enforcement of the solicitation provision prohibiting judicial candidates from personally going door-to-door to seek nomination petition signatures from citizens. That clause requires that “a candidate shall not personally solicit or accept campaign contributions or solicit publicly stated support.”11

In February 2006, Kansas Judicial Watch sent a questionnaire to candidates for Kansas state judicial office. The questionnaire requested that the candidates state their views on policies and court decisions related to taxation, same-sex marriage, the death penalty and various other issues. All but one of the seven who responded refused to answer any of the questions, stating that they believed this would violate the Kansas canons governing judicial candidates’ speech.

The judicial candidate plaintiff asked the Kansas Judicial Ethics Advisory Panel if he could answer the questionnaire without violating the judicial canons, and the panel informed him that he could not do so pursuant to the pledges and promises clause and the commits clause. A prior advisory opinion also stated that a similar questionnaire could not be answered, but reasoned that doing so would equal a request for public endorsement in violation of the solicitation of public support clause. In addition, a separate advisory opinion indicated that judicial candidates could not go door-to-door to ask citizens to sign nomination petitions because it would violate the solicitation clause.

The district court ruled in July that the Kansas judicial canons that prevent candidates from effectively announcing their views on disputed legal and political issues and from personally seeking public support and contributions are unconstitutional and preliminarily enjoined Kansas officials from enforcing them. The court held that the pledges and promises clause and the commits clause are overbroad because they sweep in legitimate speech, causing judicial candidates’ speech to be chilled. The clauses fail to properly limit their prohibition to pledges, promises, and commitments to “decide an issue in a particular way.” The court reasoned that the state has interpreted the clauses, through advisory opinions issued by its Ethics Advisory Panel, to “operate as a de facto announce clause,” the clause held unconstitutional by the Supreme Court in White.

The court also considered the constitutionality of the clauses as applied to the questionnaire sent to judicial candidates by Kansas Judicial Watch and found them to be unconstitutional because the questions “merely require the candidates to announce their views on disputed legal and political issues,” speech protected by the Supreme Court’s decision in White.

The court found that the entire solicitation clause, which prohibits candidates from personally soliciting publicly stated support or campaign contributions, is unconstitutional because it fails strict scrutiny analysis. The clause, according to the court, “prohibits an entire class of speech relating to campaigns, which is intended to influence voters in the election.” The court also found that the solicitation clause is unconstitutional as applied to the questionnaire and as applied to prospective judicial candidates who desire to seek signatures from citizens so that they can qualify as candidates.

A scheduling conference has been set for mid-September 2006 to discuss discovery and a date for final resolution of the case. Kansas Judicial Watch v. Stout is one of several cases brought by plaintiffs after White to challenge canons that infringe upon judicial candidates’ right to announce their views on disputed legal, political, and social issues as well as canons that encroach on other constitutional rights.12

 

Endnotes

1 536 U.S. 765 (2002).

2 Id. at 785.

3 Id.

4 Id.

5 Id. at 786.

6 Id. at 773 n.5.

7 No. 06-4056-JAR, 2006 U.S. Dist. LEXIS 50765 (D. Kan. July 19, 2006).

8 Kansas Judicial Canon 5A(3)(d)(ii).

9 Kansas Judicial Canon 5A(3)(d)(i).

10 Kansas Judicial Canon 3E(1).

11 Kansas Judicial Canon 5C(2).

12 Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Commission, 388 F.3d 224 (6th Cir. 2004) (applying White to Kentucky’s pledges and promises clause and commits clause to find that the defendants could not demonstrate a likelihood of success on the merits to justify staying the lower court’s preliminary injunction); Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (applying the White Court’s analysis to Minnesota’s partisan-activities and solicitation clauses); Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (relying on White to apply strict scrutiny to Georgia’s canons that prohibited judicial candidates from making negligent false statements and misleading or deceptive true statements and from personally soliciting campaign funds, as well as a provision permitting the commission to issue a cease and desist order to the candidate for violating those provisions); O’Neill v. Coughlan, No. 1:04CV1612, 2004 U.S. Dist. LEXIS 29401 (N.D. Ohio Sept. 14, 2004) (applying the White Court’s analysis to Ohio’s political-affiliation clause, an advertising provision, and a requirement to “maintain the dignity appropriate to judicial office”); Spargo v. State Comm’n on Judicial Conduct, 244 F. Supp. 2d 72 (N.D.N.Y. 2003), vacated on other grounds, 351 F.3d 65 (2d Cir. 2003) (holding that various canons restricting political activity of judicial candidates were unconstitutional under White). See also Alaska Right to Life v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005) (holding the pledges and promises clause and the commits clause unconstitutional under White); North Dakota Family Alliance v. Bader, 361 F. Supp. 2d 1021 (D. N.D. 2005) (same); Family Trust Foundation of Kentucky, Inc. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004) (same). But see Pennsylvania Family Institute, Inc. v. Black, No. Civ. 105 CV 217, 2005 WL 2931825 (M.D. Pa. Nov. 4, 2005), appeal pending (3d Cir) (holding that plaintiffs lacked standing to challenge the pledges and promises, commits, and recusal clauses).

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