Marcus Carey v. Stephen Wolnitzek

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0199p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant/Cross-Appellee, -
MARCUS CAREY,
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Nos. 08-6468/6538
v.
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>
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STEPHEN D. WOLNITZEK, in his official
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capacity as Chairperson of the Kentucky
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Judicial Conduct Commission; MICHELE M.
KELLER, in her official capacity as a member -
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of the Kentucky Judicial Conduct
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Commission; EDDY COLEMAN, in his official
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capacity as a member of the Kentucky
Judicial Conduct Commission; SUSAN M. -
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JOHNSON, in her official capacity as a
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member of the Kentucky Judicial Conduct
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Commission; DIANE E. LOGSDON, in her
official capacity as a member of the Kentucky -
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Judicial Conduct Commission; JOYCE KING
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JENNINGS, in her official capacity as a
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member of the Kentucky Judicial Conduct
Commission; LEE E. SITLINGER, JR., in his -
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official capacity as chairperson of Panel A of
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the Kentucky Inquiry Commission; REED N.
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MOORE, JR., in his official capacity as
chairperson of Panel B of the Kentucky -
Inquiry Commission; STEPHEN L. BARKER, in -
his official capacity as chairperson of Panel C -
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of the Kentucky Inquiry Commission; LINDA
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A. GOSNELL, in her official capacity as Bar
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Defendants-Appellees/Cross-Appellants. -
Counsel in Kentucky,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 06-00036—Karen K. Caldwell, District Judge.
Argued: January 13, 2010
Decided and Filed: July 13, 2010
1
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Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN, District
*
Judge.
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COUNSEL
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana,
for Appellant. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort,
Kentucky, for Appellees. ON BRIEF: James Bopp, Jr., Anita Y. Woudenberg, BOPP,
COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Mark R. Overstreet,
STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany A. Breetz, STITES &
HARBISON, PLLC, Louisville, Kentucky, R. Gregg Hovious, FULTZ MADDOX
HOVIOUS & DICKENS PLC, Louisville, Kentucky, for Appellees. Benjamin C. Mizer,
David M. Lieberman, Emily S. Schlesinger, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, B. Eric Restuccia, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J.,
joined. WISEMAN, D. J. (p. 44), delivered a separate opinion concurring in part and
dissenting in part.
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OPINION
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SUTTON, Circuit Judge. Imagine if a State imposed these restrictions on
candidates for election to the legislature: (1) They “shall not identify” themselves “as
a member of a political party in any form of advertising or when speaking to a
gathering”; (2) they “shall not solicit campaign funds”; and (3) they “shall not . . . make
a statement that a reasonable person would perceive as committing” the candidate to vote
“a certain way on a[n] . . . issue” likely to come before the legislature. A court faced
with a First (and Fourteenth) Amendment challenge to the law would make short work
of it. Legislative candidates have a First Amendment right to associate publicly with a
political party, see Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986), to
solicit campaign funds, see Riley v. Nat’l Fed. of the Blind of N.C., 487 U.S. 781, 796
(1988), and to communicate to their constituents how they will vote on the issues of the
*
The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.
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day, see Brown v. Hartlage, 456 U.S. 45, 55–59 (1982). It is doubtful that a single
federal or state court judge in the country would see it differently.
Yet what happens if the same restrictions apply to judicial elections, not
legislative elections? Some say the answer is the same. Elections are elections, and the
same First Amendment applies to all of them. When the government suppresses election
speech based on its content—prohibiting candidates from mentioning a political party
with whom they affiliate, barring them from putting their name on a fund-raising letter
or telling them what they can and cannot say about their judicial philosophy—the most
rigorous form of constitutional second-guessing applies, and no categorical exemption
from the First Amendment spares the government from this burden. In modern America,
judicial elections are no less relevant to the public policy concerns of the citizenry than
legislative elections, and the First Amendment protects electioneering speech in the one
context as vigorously as it does in the other. Concerns about impartiality and open-
mindedness that might result from unfettered judicial campaigning can be handled after
the elections, not before, through the application of case-by-case judicial recusal rules
that all States require their judges to follow before they agree to hear a case. Any
remaining concerns flow not from the absence of speech restrictions on judicial
candidates but from the State’s insistence on holding elections for judicial office in the
first place. A State cannot simultaneously insist that judges be held accountable to the
electorate at regular intervals but deny to sitting judges and candidates alike the
communicative tools for explaining how they will be held to account.
Others say it is not that easy. Judges do not represent constituents. They apply
the law to the facts one case at a time, and, if they represent anyone or anything, it is the
rule of law, which is why they sometimes must rule against the policy preferences of a
majority of the voters. The judicial process works only when it is done in a disinterested
manner, which is inconsistent with campaigns in which judges commit to rule, or appear
to commit to rule, in a certain way in certain cases. It is one thing when a legislator
solicits money during a campaign; it is quite another when a judicial candidate, a sitting
judge above all, does the same. With a few modest exceptions, see, e.g., Caperton v. A.
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T. Massey Coal Co., ___ U.S. ___, 129 S. Ct. 2252 (2009); Mich. Court Rule 2.003,
judicial-recusal rules are self-enforced and therefore may not provide adequate
safeguards against the risks that flow from treating judicial elections like legislative
ones. Unlike the other branches of government, the authority of the judiciary turns
almost exclusively on its credibility and the respect warranted by its rulings, both of
which are likely to be diminished by free-flowing electoral speech that permits the
malignant inference that there is such a thing as caucus-bound blue-robed judges and
caucus-bound red-robed judges. In some settings, there can be too much of a good thing,
and unfettered free speech in judicial elections is one of them.
This is a complicated debate, and today’s case requires us to take a side on some
of these issues. Most recently in 2005, the Kentucky Supreme Court promulgated a
judicial canon along the lines of the hypothetical legislative campaign rules mentioned
above. As sitting judges ourselves, we have considerable sympathy for the concerns that
prompted the canon, so much so that we embrace a central premise of it: Judicial
elections differ from legislative elections, and the Kentucky Supreme Court has a
compelling interest in regulating judicial campaign speech to ensure the reality and
appearance of an impartial judiciary. Yet because two clauses of the canon overlooked
narrower ways of advancing this interest and because, as written, they remain
incompatible with the United States Supreme Court’s decision in Republican Party of
Minnesota v. White, 536 U.S. 765 (2002), we must invalidate them. The third clause is
constitutional in the main but contains a material ambiguity, which requires further
consideration by the district court. The district court’s decision is affirmed in part and
vacated in part.
I.
A.
In 1792, Kentucky became the fifteenth State (and the fourth Commonwealth).
The original Kentucky Constitution permitted the Governor to appoint judges, see Ky.
Const. art. 2, § 8 (1792), but the Commonwealth, in the aftermath of the Age of Jackson,
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amended its Constitution in 1850 to require its judges to stand for popular election to
eight-year terms. See Ky. Const. § 117; Ky. Const. art. 4, §§ 4, 6 (1850). Since 1975,
judicial elections in Kentucky have been “nonpartisan,” compare Ky. Const. §116
(1891) with Ky. Const. §117 (1976), meaning that political parties have no formal role
in any stage of the judicial selection process. Prospective candidates submit petitions
for nomination to the Secretary of State. Ky. Rev. Stat. Ann. § 118A.060. The
Commonwealth holds a single primary election for each judicial seat with no party
identifiers and random ballot positioning. Id. The top two vote-getters in the primary
election receive a spot on the general election ballot, which also is held without any
party identifier. Id.
In competing for judicial seats, all candidates must abide by the Kentucky Code
of Judicial Conduct. Promulgated by the Kentucky Supreme Court, it generally prohibits
“a judge or judicial candidate” from “inappropriate political activity.” Rules of Supreme
Court of Kentucky 3.130(8.2); 4.300, Canon 5. Sitting judges or judicial candidates
violate this admonition, the Code says, if they fail to follow these clauses of Canon 5,
among others:
The party affiliation clause. “A judge or 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. 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.” Canon 5A(2).
The solicitation clause. “A judge or a candidate for judicial office 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.” Canon
5B(2).
The commits clause. “A judge or candidate for election to judicial office
. . . shall not intentionally or recklessly make a statement that a
reasonable person would perceive as committing the judge or candidate
to rule a certain way in a case, controversy, or issue that is likely to come
before the court . . . .” Canon 5B(1)(c).
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The Kentucky Judicial Conduct Commission, a constitutionally mandated state body
subject to judicial review by the Kentucky Supreme Court, see Ky. Const. § 121,
enforces the Code of Judicial Conduct. It may impose sanctions on violators of the
Code, which run the gamut from a private reprimand to a public censure to removal from
office to a referral to the Kentucky Bar Association for disbarment from the practice of
law. Rules of Supreme Court of Kentucky 4.020. The Kentucky Inquiry Commission
and the Office of Bar Counsel also police ethical violations by Kentucky attorneys,
including violations of the rule that “[a] lawyer who is a candidate for judicial office
shall comply with the applicable provisions of the Code of Judicial Conduct.” Rules of
Supreme Court of Kentucky 3.130(8.2); 3.160(1).
B.
In June 2006, Marcus Carey, then a candidate for a seat on the Kentucky
Supreme Court, filed a complaint in federal district court claiming that the party
affiliation, solicitation and commits clauses violated his speech and associational rights
under the First and Fourteenth Amendments of the U.S. Constitution. The named
defendants sit on the Kentucky Judicial Conduct Commission, sit on the Kentucky
Inquiry Commission or serve as Bar Counsel.
Carey complained that he wanted to disclose his party status, yet he feared the
party affiliation clause barred him from doing so. He wanted to ask for campaign
contributions by signing fund-raising letters, yet he feared the solicitation clause barred
him from doing so. And he wished to respond to a judicial questionnaire distributed by
Kentucky Right to Life, raising questions for the candidates about their judicial
philosophy and about their positions on specific issues, yet he feared the commits clause
barred him from doing so. He asked the court to declare the clauses unconstitutional on
their face and to enjoin their enforcement.
In October 2006, roughly one month before the election, the district court
preliminarily enjoined enforcement of the party affiliation and the solicitation clauses
but dismissed Carey’s challenge to the commits clause on ripeness and standing grounds.
On November 2, Carey moved to amend his complaint, re-challenging the commits
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clause, this time detailing the statements he proposed to make in possible violation of
the clause. About a week later, Carey lost the election.
In September 2007, the court ruled that Carey’s amended challenge to the
commits clause was ripe for review and allowed it to proceed along with Carey’s
challenges to the party affiliation and solicitation clauses. The parties all moved for
summary judgment. In ruling on the motions, the district court determined that strict
scrutiny applied to all of the challenges. It then invalidated the party affiliation and
solicitation clauses on their face but rejected Carey’s facial challenge to the commits
clause. The state defendants appeal the court’s ruling on the party affiliation and
solicitation clauses, and Carey appeals the court’s ruling on the commits clause.
II.
Before turning to the merits, we must consider two jurisdictional questions
implicated by these challenges: Did Carey file his claims too early, making them unripe
for judicial review, or too late, making them moot? See Warshak v. United States, 532
F.3d 521, 525 (6th Cir. 2008) (en banc).
Ripeness. Designed to ensure that the federal courts resolve “existing, substantial
controversies,” Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002), not disputes
“anchored in future events that may not occur as anticipated” or may not occur “at all,”
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997), the ripeness
doctrine ensures that a dispute is concrete and real before the judicial branch resolves
it. Three considerations inform the doctrine: Is the alleged injury likely to occur? Is the
factual record sufficiently developed to resolve the question? And what kinds of
hardships, if any, will the parties face if the court delays resolution of the question?
Warshak, 532 F.3d at 525. In the context of a free-speech overbreadth challenge like
this one, a relaxed ripeness standard applies to steer clear of the risk that the law “may
cause others not before the court to refrain from constitutionally protected speech or
expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
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Carey meets these requirements. In future judicial elections, as in prior ones, he
claims an interest in engaging in protected speech that implicates, if not violates, each
clause. He wants to let voters know his party affiliation. He wants to solicit campaign
funds directly, as opposed to indirectly via an election committee. And he wants to
answer judicial questionnaires propounded by a local right-to-life organization. These
aspects of the canon at least chill, and in some instances prohibit, these forms of
communication, and in the course of the November 2006 election, at least until the entry
of the October 2006 injunction, Carey censored himself on each topic. All of this
establishes a “credible fear of enforcement,” Norton, 298 F.3d at 554, sufficient to
overcome any ripeness concerns.
The Kentucky Judicial Conduct Commission persists that the Kentucky Supreme
Court and its ethics branch, the Kentucky Judicial Ethics Committee, have yet to apply
these clauses to Carey, noting that “an authoritative construction of the canons may
significantly alter the constitutional questions.” Commission’s Opening Br. at 22. That
is all true, but it is a peculiar ground for staying our hand now with respect to all of these
challenges, some of which involve clauses with little ambiguity. See City of Lakewood
v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n.11 (1988). This challenge dates from July
2006, and a related challenge, supported by the same counsel, dates from September
2004, see Family Trust Found. of Ky., Inc. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky.
2004). The Commission has had ample time to request interpretations or modifications
of Canon 5 by the Committee or the Court, yet apparently has not done so. Nor has the
Commission, or anyone else in this case, asked the federal courts to certify any questions
to the Kentucky Supreme Court. These claims are ripe for review.
Mootness. In one sense, Carey’s original challenge seems moot because the
November 2006 election has come and gone. Carey filed his original complaint months
ahead of the election, and moved to amend it a week before the election, yet here we are
more than three years after the election, still considering his claims. Carey, however,
retains the right to run for judicial office again, and all candidates for judicial office in
Kentucky, whether sitting judges or not, are subject to Canon 5. Under these
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circumstances, the claims may proceed: The alleged wrongs are “capable of repetition,
yet evading review,” saving them from mootness, as the district court correctly held and
as the parties do not dispute. See Fed. Election Comm’n v. Wis. Right to Life, Inc., 551
U.S. 449, 462 (2007); Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 492–93 (6th Cir.
1995).
III.
A.
Two recent decisions of the Supreme Court—White and Caperton—set the stage
for resolving the merits of this dispute. At issue in White was a judicial canon, first
promulgated by Minnesota in 1974, providing that “a candidate for a judicial office,
including an incumbent judge,” shall not “announce his or her views on disputed legal
or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i); White, 536
U.S. at 768. Applying strict scrutiny, the Court rejected Minnesota’s contention that the
canon preserved judicial “impartiality” in a permissible way.
To the extent the Minnesota announce clause sought to preserve judicial
“impartiality” in one sense—a “lack of bias for or against either party to the
proceeding,” id. at 775—the Court accepted the State’s interest as a compelling one. Id.at 777 n.7. But the clause suffered from a means-end problem because it did “not restrict
speech for or against particular parties, but rather speech for or against particular
issues.” Id. at 776. It may be, the Court acknowledged, that, “when a case arises that
turns on a legal issue on which the judge (as a candidate) had taken a particular stand,
the party taking the opposite stand is likely to lose,” but that is not due to “any bias
against that party” for “[a]ny party taking that position is just as likely to lose.” Id. at
776–77.
To the extent the State meant to advance “impartiality” in another sense—an
absence of judicial “preconception in favor of or against a particular legal view”—that
was not a compelling interest. Id. at 777. “[S]ince avoiding judicial preconceptions on
legal issues is neither possible nor desirable, pretending otherwise by attempting to
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preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state
interest either.” Id. at 778.
And to the extent the State meant to promote “impartiality” in the sense of
judicial “open-mindedness”—the “willing[ness] to consider views that oppose [one’s]
preconceptions”—the Court found it unnecessary to decide whether this “desirable”
quality amounted to a compelling interest. Id. at 778. It held that the clause was so
poorly tailored to any interest in open-mindedness that the Minnesota Supreme Court
could not have “adopted the announce clause for that purpose.” Id. Judges, both
incumbent and prospective, it reasoned, retained so many ways to communicate their
views on legal issues other than through election statements that the clause gratuitously
limited speech while “leav[ing] appreciable damage to that supposedly vital interest
unprohibited.” Id. at 780.
Caperton dealt with a sitting state supreme court justice whose top campaign
donor in the previous election, the head of a mining company, had spent $3 million on
his behalf—more than all of his other supporters combined. See Caperton, 129 S. Ct.
at 2257. When a high-stakes dispute involving the mining company came before the
court, the justice refused to recuse himself from hearing it and ultimately joined the 3–2
majority in ruling for the company. See id. at 2258. The losing party claimed that the
justice’s participation in the case violated its due process rights. The Supreme Court
agreed, holding that, by refusing to disqualify himself, the justice had unconstitutionally
deprived the parties of a fair hearing. See id. at 2265. When “there is a serious risk of
actual bias,” the Court reasoned, the Constitution requires judges to disqualify
themselves, though the Court cautioned that this was “an extraordinary situation,”
emphasizing the size of the mining company’s support relative to other donors’ support,
the apparently decisive effect of this support on the justice’s election and the close
temporal connection between the justice’s election and the company’s case. Id. at 2263,
2265.
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B.
Strict scrutiny applies to all three aspects of this First Amendment challenge.
White, for one, suggests as much, even if the decision does not compel that conclusion.
In striking down Minnesota’s announce clause, the Court said the following about the
standard of review:
As the Court of Appeals recognized, the announce clause both prohibits
speech on the basis of its content and burdens a category of speech that
is “at the core of our First Amendment freedoms”—speech about the
qualifications of candidates for public office. 247 F.3d at 861, 863. The
Court of Appeals concluded that the proper test to be applied to
determine the constitutionality of such a restriction is what our cases
have called strict scrutiny, id., at 864; the parties do not dispute that this
is correct.
536 U.S. at 774.
The state defendants seize on the modest length of the Court’s analysis and
Minnesota’s concession, arguing that we need not apply strict scrutiny here. But White’s
brevity on this score and Minnesota’s concession may suggest something else: that the
counter-argument has little to support it. The multi-State amicus brief filed in support
of Minnesota did not question the applicability of strict scrutiny in White. See Brief
Amicus Curiae of California, et al. in Support of Respondents, Republican Party of
Minn. v. Kelly, 536 U.S. 765 (2002) (No. 01-521). Not one of the Justices, not even one
of the four dissenters, objected to the application of strict scrutiny. And if strict scrutiny
does not apply to judicial canons like this one and the one at issue in White, it is difficult
to understand why the Court exercised its discretion in reviewing White, given that
virtually the entire analysis is premised on the applicability of strict scrutiny and given
that the outcome of the case under a lower level of scrutiny is far from clear.
Free-speech first principles also suggest that strict scrutiny should apply. The
three canons censor speech based on its content in the most basic of ways: They prevent
candidates from speaking about some subjects (judicial philosophy, the legal issues of
the day, party affiliation) but not others (experience); and they prevent candidates from
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asking for support in some ways (campaign funds) but not others (a vote, yard signs).
The canons refer directly to, and are “justified with[] reference to,” the content of
candidates’ speech, meaning they are not eligible for the relaxed review that content-
neutral restrictions receive. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
Content-based restrictions on speech generally face strict scrutiny, see United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), and thus are
“presumptively invalid” unless the restriction discriminates on the basis of categorically
“proscribable” speech, see R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992). See
also United States v. Stevens, No. 08-769, slip. op. at 5 (April 20, 2010). None of the
categorical carve-outs apply. The canons do not address “fighting words” or incitement,
see Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), defamation, see
Beauharnais v. Illinois, 343 U.S. 250 (1952), obscenity, see Roth v. United States, 354
U.S. 476 (1957), or child pornography, see New York v. Ferber, 458 U.S. 747, 764
(1982). Far from implicating these exceptions, today’s regulations implicate a core area
of free-speech protection: elections. See Brown, 456 U.S. at 53–54; see also Stevens,
slip op. at 9 (declining to declare “depictions of animal cruelty” as a “new categor[y] of
speech outside the scope of the First Amendment”).
Nor does the nature of the restrictions implicate any of the other areas or types
of regulation—time, place and manner restrictions, commercial speech, expressive
conduct—in which the Court has applied less-than-rigorous review. The canons instead
are of a piece with the kinds of speech regulation—telling candidates what they can and
cannot say before an election—that the courts have scrutinized most rigorously. See,
e.g., Brown, 456 U.S. at 53–54; see also Erwin Chemerinsky, Restrictions on the Speech
of Judicial Candidates are Unconstitutional, 35 Ind. L. Rev. 735, 740–742 (2002)
(explaining that strict scrutiny should apply to First Amendment challenges to judicial
canons like these); Mark Spottswood, Comment, Free Speech and Due Process
Problems in the Regulation and Financing of Judicial Election Campaigns, 101 Nw. U.
L. Rev. 331, 347 (2007) (same).
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The Commission does not cite a single case, and we have not found one on our
own, applying anything less than strict scrutiny to comparable free-speech challenges
to judicial election canons. After White, the Eighth Circuit applied strict scrutiny to
Minnesota’s party affiliation and solicitation clauses. See Republican Party of Minn. v.
White, 416 F.3d 738, 749 (8th Cir. 2005) (en banc) (“White II”). After White, the
Eleventh Circuit did the same in invalidating Georgia’s rules prohibiting judicial
candidates from soliciting campaign funds. See Weaver v. Bonner, 309 F.3d 1312, 1319
(11th Cir. 2002). After White, the Seventh Circuit applied strict scrutiny to Wisconsin’s
party affiliation clause and held that Wisconsin’s solicitation clause survived both
intermediate and strict scrutiny. See Siefert v. Alexander, ___ F.3d ___, No. 09-1713,
slip op. at 5, 12 (7th Cir. June 14, 2010). And, before White, the Third Circuit applied
strict scrutiny in upholding some judicial speech restrictions. See Stretton v.
Disciplinary Bd. of Supreme Court of Pa., 944 F.2d 137, 141–42 (3d Cir. 1991).
The Commission urges us to apply a form of intermediate scrutiny, which
balances the “competing fundamental rights” of some judicial candidates (who have a
right to engage in campaign speech) and some litigants (who have a right to an impartial
judiciary). Commission’s Opening Br. at 10. But the reality that judicial impartiality
is a “vital state interest,” protected by the Due Process Clause, Caperton, 129 S. Ct. at2266–67, does not require us to dilute the First Amendment. It establishes instead that
Kentucky has a compelling interest in preserving the canon, proving that the State can
satisfy the first requirement of strict scrutiny, not that, having satisfied this requirement,
it may water down the remaining requirements.
The Commission’s analogy to Gentile v. State Bar of Nevada, 501 U.S. 1030(1991), does not hold up. Gentile “balance[d]” litigants’ fair trial rights with attorneys’
free speech rights in upholding a rule prohibiting attorneys involved in a pending trial
from making statements likely to prejudice the proceedings. Id. at 1075. As these
features of the decision suggest, Gentile applies only to speech restrictions imposed on
attorneys during a pending case, see id. at 1073 n.5, which is one reason—there are
others—why a comparable law restricting judges from telling the press about the
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outcome of a pending case would not be an unconstitutional prior restraint on speech.
Today, however, we have a speech restriction aimed not at judges performing court
functions but at judges and judicial candidates making campaign statements or
solicitations outside of court and outside of the process of deciding cases in their official
capacity—all for the purpose of communicating information to voters about whom they
should elect. That Gentile upholds a law restricting a lawyer’s speech during a trial does
not mean that it allows restrictions on lawyers in all settings. Otherwise, a lawyer
running to be the Attorney General or Governor of a State could be censored simply
because she is an “officer of the court.” That is not the case.
The Commission insists that the solicitation clause is an especially poor
candidate for strict scrutiny review, because the Supreme Court applies a “lesser”
standard of review to restrictions on political donations. See McConnell v. Fed.
Election Comm’n, 540 U.S. 93, 136 (2003). But this argument gives analogy a bad
name. The solicitation clause does not set a contribution limit, as in McConnell and
similar cases. See, e.g., Fed. Election Comm’n v. Nat’l Right to Work Comm., 459 U.S.
197, 208 (1982). It flatly prohibits speech, not donations, based on the topic (solicitation
of a contribution) and speaker (a judge or judicial candidate)—precisely the kind of
content-based regulations that traditionally warrant strict scrutiny.
C.
Because strict scrutiny applies, the Commission faces a daunting gauntlet, as “it
is the rare” law that “survives” this kind of review. Burson v. Freeman, 504 U.S. 191,
211 (1992). To survive, the three canons must be “narrowly tailored” to advance a
“compelling state interest.” Eu v. San Francisco County Democratic Cent. Comm., 489
U.S. 214, 222 (1989).
At the same time, Carey seeks to invalidate these clauses not just as applied to
him but in all of their applications, which is to say on their face. In most constitutional
cases, that exceptional remedy requires the claimant to “show one of two things: (1) that
there truly are ‘no’ or at least few ‘circumstances’ in ‘which the Act would be valid,’
United States v. Salerno, 481 U.S. 739, 745 (1987); see also Wash. State Grange v.
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Wash. State Republican Party, 552 U.S. 442, 449–50 (2008); or (2) that a court cannot
sever the unconstitutional textual provisions of the law or enjoin its unconstitutional
applications.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (en
banc). The courts, however, “rightly lighten this load in the context of free-speech
challenges to the facial validity of a law.” Id. In view of the risk that “enforcement of
an overbroad law” may “deter[] people from engaging in constitutionally protected
speech” and may “inhibit[ ] the free exchange of ideas,” the overbreadth doctrine permits
courts to invalidate a law on its face “if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Stevens,
No. 08-769, slip op. at 10 (quoting Wash. State Grange, 522 U.S. at 449 n.6).
IV.
A.
Party affiliation clause. This clause prohibits judges and candidates from
disclosing their party affiliation “in any form of advertising, or when speaking to a
gathering,” save in answer to a question by a voter in one-on-one or “very small private
informal” settings. Rules of Supreme Court of Kentucky 4.300, Canon 5(A)(2);
Kentucky Judicial Ethics Opinion JE-105 (2004). The clause advances at least two
interests, both sufficiently compelling to satisfy the First Amendment. It furthers the
Commonwealth’s goal of having a judiciary that is biased neither in fact nor in
appearance. See White, 536 U.S. at 775–79. And it furthers the Commonwealth’s
interest in diminishing reliance on political parties in judicial selection, a policy
grounded in the Kentucky Constitution’s requirement that judicial elections be
nonpartisan in nature.
The problem, however, is not the Commonwealth’s laudable interests in
promulgating this canon; it is the Commonwealth’s methods in furthering them. The
Court frequently says that censoring speech must be a government’s measure of
“last—not first—resort” in advancing its policy interests, e.g., Thompson v. W. States
Med. Ctr., 535 U.S. 357, 373 (2002), and the narrow-tailoring requirement is proof that
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 16
the Court means it. If a law does too much, or does too little, to advance the
government’s objectives, it will fail. See Eu, 489 U.S. at 222. This canon does both.
The canon’s first problem is a White problem—that it suppresses too much
speech to advance the government’s interest. In invalidating Minnesota’s announce
clause, White established that a State may not prohibit a judicial candidate from
disclosing, say, that “I am for limited government,” “I support a woman’s right to
choose,” “I prefer tough-on-crime laws,” or, to use an example from White, “I think it
is constitutional for the legislature to prohibit same-sex marriage.” 536 U.S. at 779. The
party affiliation clause prohibits all of this, only more so. It prohibits candidates from
announcing their position on one issue of potential importance to voters: the party they
support. And it prohibits them from announcing their position on many issues of
potential importance to voters: the party platform with which they affiliate. A party
platform after all is nothing more than an aggregation of political and legal positions, a
shorthand way of announcing one’s views on many topics of the day. If the single-issue
announce canon at play in White prevented candidates from “communicating relevant
information to voters” on “matters of current public importance,” and did not narrowly
advance the State’s interest in a non-partisan judiciary, id. at 781–82, the same is true
of Kentucky’s canon, which potentially prevents candidates from announcing their views
on many issues at once. See id. at 782 (“We have never allowed the government to
prohibit candidates from communicating relevant information to voters during an
election.”).
At the same time, the canon does too little to advance the State’s interest in
impartiality and the avoidance of partisan influence. Party affiliation, as it turns out, is
not a forbidden topic. It is forbidden only when the candidate raises the point. If, by
contrast, a voter asks the question in a one-on-one setting or in a small gathering, the
candidate is free to say what she wants. That reality undermines the suggestion that a
candidate deals a fatal blow to judicial impartiality by revealing her party affiliations.
And of course, once that information is disclosed, whether in answer to a question or
based on prior publicly known affiliations (including holding other elected offices),
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nothing in the canon prohibits others, whether newspapers or political parties or interest
groups, from disclosing to the world the candidate’s party affiliation. “A law cannot be
regarded as protecting an interest of the highest order, and thus as justifying a restriction
upon truthful speech, when it leaves appreciable damage to that supposedly vital interest
unprohibited.” Id. at 780.
The clause undershoots its target in another respect. Although candidates may
not reveal their party affiliation, they may discuss their membership in, affiliation with
or support of any other type of organization, including organizations that take positions
on judges and judicial philosophy. Although the two major political parties take
positions on a wide array of issues, many interest groups advance a narrower set of
positions and often do so more vocally, particularly with respect to judges. By
identifying themselves with such groups, candidates can communicate more about their
political and judicial convictions than they ever could by carrying a party membership
card—and, in the process, may do as much to call judicial open-mindedness into
question as any party affiliation ever would.
The canon also prohibits only disclosure of a candidate’s party membership, not
party membership itself. Yet the appearance of judicial closed-mindedness is part and
parcel of its reality, not a device designed to disguise reality. If concern over judicial
partisanship and the influence of political parties on judging truly underlies the clause,
the authorization to belong (secretly) to a political party amounts to a gaping omission.
A party’s undisclosed potential influence on candidates is far worse than its disclosed
influence, as the one allows a full airing of the issue before the voters while the other
helps to shield it from public view.
Kentucky responds that the restriction supports the Kentucky Constitution’s
requirement that judicial elections be nonpartisan—that they operate with no partisan
primaries and with no partisan identifiers at the ballot booth. See Ky. Const. § 117; Ky.
Rev. Stat. § 118A.060. The point, however, cuts both ways. In one sense, it establishes
the bona fides of the Commonwealth’s policy. But in another sense, it undermines the
Commonwealth’s professed need to suppress speech in the process. Carey does not
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challenge the validity of prohibiting party identifiers on the ballot or the validity of
holding non-partisan primaries. He just wishes to communicate about a matter of
potential interest to the voters and one that is often already a point of public
knowledge—party affiliation—on his own terms.
Most States have not made the choice Kentucky did. Fifteen States choose their
Supreme Court justices in contested, “nonpartisan” elections, and only five, including
Kentucky, prohibit candidates in those elections from revealing their partisan affiliations.
See App’x A. (Three more prohibit candidates from claiming to be “a candidate of a
political organization” but do not prohibit revealing membership or affiliation. Id.) And
two of these five canons—this one and Wisconsin’s—have been invalidated. See Siefert,
slip op. at 16. That a majority of the States with nonpartisan Supreme Court elections
have opted not to censor their candidates in this way of course does not establish the
invalidity of the clause, but it does call into question the necessity of implementing
Kentucky’s nonpartisan judicial election system in this way and whether it amounts to
the “least restrictive means” of protecting the Commonwealth’s interests. Playboy
Entm’t Group, 529 U.S. at 813.
The Commission says that the clause restricts as little speech as possible while
preventing Kentucky’s elections from turning into ultra-partisan affairs. It allows
judges, the Commission adds, to join political parties, to participate in them and to
disclose party affiliation if asked in the proper setting—allowing voters who care about
a candidate’s partisan affiliation to discover it while preventing widespread
advertisement of a candidate’s party membership and preventing “judicial races [from]
turning into partisan political campaigns.” Commission’s Opening Br. at 66. Yet this
argument looks at the problem through the wrong end of the telescope: It merely
demonstrates that the clause does not restrict as much speech as it might, not that the
clause restricts no more speech than is necessary.
We do not doubt one of the premises of the canon—that party affiliation may not
be a reliable indicator of the qualities that make a good judge. Yet “[i]t is simply not the
function of government to select which issues are worth discussing or debating in the
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course of a political campaign,” White, 536 U.S. at 782 (quotation omitted), and it is
difficult to see how Kentucky’s speech restriction does not do just that. Informational
bans premised on the fear that voters cannot handle the disclosure have a long history
of being legislatively tried and judicially struck, whether in the election setting or
elsewhere. See, e.g., Brown, 456 U.S. at 60 (“The State’s fear that voters might make
an ill-advised choice does not provide the State with a compelling justification for
limiting speech.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 773 (1976). Voters often resort to a variety of proxies in selecting judges
and other office holders, some good, some bad. And while political identification may
be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too-
familiar formula of running candidates with familiar or popular last names. In that
respect, this informational ban increases the likelihood that one of the least relevant
grounds for judicial selection—the fortuity of one’s surname—is all that the voters will
have to go on. As the district court correctly concluded, this clause violates the First
Amendment on its face.
B.
Solicitation clause. Kentucky prohibits judicial candidates from “solicit[ing]
campaign funds,” a restriction that extends to all fundraising by the candidate, including
in-person solicitations, group solicitations, telephone calls and letters. Rules of Supreme
Court of Kentucky 4.300, Canon 5(B)(2). The clause permits the candidate to establish
a committee that may solicit campaign donations, and it permits the committee to
disclose to the candidate the names of people who donated to the campaign and those
who declined. See id. Kentucky says that the clause satisfies the First Amendment, but
we, like the district court, conclude that it does not.
As with the party affiliation clause, we do not doubt the bona fides of the
solicitation clause: that it serves Kentucky’s compelling interest in an impartial
judiciary. The same goes for its interest in preserving the appearance and reality of a
non-corrupt judiciary, an objective often served by fundraising limitations. See Fed.
Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496–97
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(1985). Litigants have a due process right to a trial before a judge with no “direct,
personal, substantial pecuniary interest” in the outcome, Tumey v. Ohio, 273 U.S. 510,
523 (1927), and the legitimacy of the judiciary rests on delivering on that promise and
in furthering the public’s trust in the integrity of its judges, see Mistretta v. United
States, 488 U.S. 361, 407 (1989). See generally Caperton, 129 S. Ct. 2252.
Preserving these interests, we also acknowledge, grows more complicated when
a State exercises its sovereign right to select judges through popular elections. Judicial
elections, like most elections, require money—often a lot of it. Kentucky’s 2006
Supreme Court election, which featured four contested races and one uncontested race,
saw ten candidates raise a total of $2,119,871, of which the candidates spent $772,563
on 2,357 television commercials. Brennan Center for Justice at NYU School of Law,
The New Politics of Judicial Elections 2006 at 3, 16. “Unless the pool of judicial
candidates is limited to those wealthy enough to independently fund their campaigns, a
limitation unrelated to judicial skill, the cost of campaigning requires judicial candidates
to engage in fundraising.” White, 536 U.S. at 789–90 (O’Connor, J., concurring).
Complicating matters further, the general public often, though not invariably, pays less
attention to judicial elections than other elections, forcing judicial candidates to focus
their fundraising efforts on the segment of the population most likely to have an interest
in judicial races: the bar. “This leads to the unseemly situation in which judges preside
over cases in which the parties are represented by counsel who have contributed in
varying amounts to the judicial campaigns.” Stretton, 944 F.2d at 145.
That the clause advances important government interests, however, does not
establish that it does so narrowly. Prohibiting candidates from asking for money
suppresses speech in the most conspicuous of ways and, in the process, favors some
candidates over others—incumbent judges (who benefit from their current status) over
non-judicial candidates, the well-to-do (who may not need to raise any money at all)
over lower-income candidates, and the well-connected (who have an army of potential
fundraisers) over outsiders. For these reasons, it is tempting to say that any limitation
on a candidate’s right to ask for a campaign contribution is one limitation too many. But
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there are at least two areas covered by the clause that test such an interpretation—face-
to-face solicitations, particularly by sitting judges, and solicitations of individuals with
cases pending in front of the court. Yet we need not decide the validity of such
restrictions today because Kentucky goes well beyond them.
Besides covering in-person solicitations and those directed at individuals with
pending cases, the canon prohibits a range of other solicitations, including speeches to
large groups and signed mass mailings. Such indirect methods of solicitation present
little or no risk of undue pressure or the appearance of a quid pro quo. No one could
reasonably believe that a failure to respond to a signed mass mailing asking for
donations would result in unfair treatment in future dealings with the judge. Nor would
a speech requesting donations from a large gathering have a “coercive effect” on
reasonable attendees. Commission’s Opening Br. at 55; compare Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447, 465–66 (1978) (State may regulate lawyers’ in-person for-
profit solicitation of clients because of “intrusive[ness]” of “persuasion under
circumstances conducive to uninformed acquiescence”) with In re Primus, 436 U.S. 412,
435–36 (1978) (regulation of lawyer’s written, not-for-profit solicitation merited
heightened scrutiny because it did not “afford any significant opportunity for
overreaching or coercion”) and Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 475 (1988)
(“Targeted, direct-mail solicitation is distinguishable from the in-person solicitation”
because there is no “badgering advocate breathing down [a potential client’s] neck,”
asking for “an immediate yes-or-no answer.”).
At the same time, the clause does too little to protect the Commonwealth’s
interests. Although the candidate himself may not solicit donations, his campaign
committee may. And nothing prevents a committee member from soliciting donations
in person. That leaves a rule preventing a candidate from sending a signed mass mailing
to every voter in the district but permitting the candidate’s best friend to ask for a
donation directly from an attorney who frequently practices before the court. Are not
the risks of coercion and undue appearance far less with the first (prohibited) solicitation
than the second (permitted) one?
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Although the clause prevents judicial candidates from saying “please, give me
a donation,” it does not prevent them from saying “thank you” for a donation given. The
clause bars any solicitation, whether in a large group or small one, whether by letter or
one on one, but it does not bar the candidate from learning how individuals responded
to the committee’s solicitations. That omission suggests that the only interest at play is
the impolitic interpersonal dynamics of a candidate’s request for money, not the more
corrosive reality of who gives and how much. If the purported risk addressed by the
clause is that the judge or candidate will treat donors and non-donors differently, it is
knowing who contributed and who balked that makes the difference, not who asked for
the contribution. If Kentucky fears that judges will allow campaign donations to affect
their rulings, it must believe that “[s]uccessful candidates will feel beholden to the
people who helped them get elected regardless of who did the soliciting of support.”
Weaver, 309 F.3d at 1323.
Two other circuits have considered the validity of similar canons and have come
to similar conclusions. In Weaver, the Eleventh Circuit considered a Georgia rule
providing that judicial candidates “shall not themselves solicit campaign funds.” 309
F.3d at 1315. Relying on many of the same means-end problems identified here, the
court concluded that the canon was “not narrowly tailored to serve Georgia’s compelling
interest in judicial impartiality.” Id. at 1322. In White II, on remand after the Supreme
Court invalidated Minnesota’s “announce” clause, the Eighth Circuit invalidated a canon
that prohibited judicial candidates from “personally solicit[ing] or accept[ing] campaign
contributions.” 416 F.3d at 745. In Siefert, ___ F.3d ___, the Seventh Circuit upheld
Wisconsin’s prohibition on judges’ “personal[] solicit[ation]” of campaign contributions.
See slip op. at 32–33. But, in doing so, it focused on the problems associated with
“direct” solicitation and did not consider the validity of applying the canon to mass
mailings and group solicitations—the most troubling scenarios here. See id. at 30–32.
The state defendants push back, arguing that, even though a candidate may
discover her donors’ identities from the campaign committee, the solicitation clause
makes “favoritism” toward contributors “more difficult.” Commission’s Opening Br.
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at 57. After all, they reason, when a candidate asks for a donation in person, she
immediately will find out whether the donor gives and how much. Id. That may or may
not be true. But even if we grant the Commonwealth’s premise—that in-person
solicitations always lead to more immediate information about donations or
rejections—that suggests only that the solicitation clause may be constitutional in some
settings. It does not resolve the clause’s considerable overbreadth: its application to
mass-mailing solicitations or speeches to a large audience.
But the solicitation clause must be constitutional, the state defendants add,
because most other States with judicial elections also prevent candidates from soliciting
funds. See Commission’s Opening Br. at 53. The argument is not as helpful as they
suggest. By our count, twenty-two States currently elect judges to their highest courts
in contested elections. (States with retention elections are less relevant because by
definition they do not involve two candidates competing for the same seat.) Of these
twenty-two States, thirteen, including Kentucky, prohibit candidates from soliciting
campaign contributions. See App’x B. (Two more have hortatory canons telling
candidates they “should not” or are “strongly discouraged” from personally soliciting.
Id.) Yet this bare majority is no more dispositive here than it was in White, where
twenty-six States had some form of announce clause. See White, 536 U.S. at 786. No
less importantly, we do not decide today whether a State could enact a narrowly tailored
solicitation clause—say, one focused on one-on-one solicitations or solicitations from
individuals with cases pending before the court—only that this clause does not do so
narrowly.
The Commonwealth to its credit wishes to avoid cases like Simes v. Ark. Judicial
Discipline & Disability Comm’n, 247 S.W.3d 876 (Ark. 2007), where a judge “made
direct, personal solicitations” to attorneys who “had cases currently pending in the
judge’s court.” Id. at 880. But Kentucky’s clause goes well beyond these sorts of
solicitations. Kentucky has chosen to elect its judges in competitive elections and must
abide by some of the risks that go with that decision. See White, 536 U.S. at 792(O’Connor, J., concurring). While we do not question Kentucky’s right to select judges
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 24
through popular elections, the Commonwealth cannot exempt itself from the demands
of the First Amendment in the process. See id. at 788 (majority); Geary v. Renne, 911
F.2d 280, 294 (9th Cir. 1990) (en banc) (Reinhardt, J., concurring) (“The 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.”), vacated on other grounds by Renne v. Geary, 501
U.S. 312 (1991). The solicitation clause is overbroad and thus invalid on its face.
C.
The commits clause. In prohibiting judicial candidates from “intentionally or
recklessly mak[ing] a statement that a reasonable person would perceive as committing
a judge or candidate to rule a certain way in a case, controversy, or issue that is likely
to come before the court,” Canon 5B(1)(c), the commits clause covers a range of
campaign statements. Some of those restrictions are legitimate. Others may not be.
And there is a “vast middle ground of uncertainty” between the two. Outlaw v. Airtech
Air Conditioning & Heating, Inc., 412 F.3d 156, 161 (D.C. Cir. 2005) (Roberts, J.).
In what seems to be its core sense, the clause, found in one form or another in 39
States, see App’x C, runs the gauntlet of strict scrutiny. By preventing candidates from
making “statement[s]” that “commit[]” them “to rule a certain way in a case [or]
controversy,” the clause secures a basic objective of the judiciary, one so basic that due
process requires it: that litigants have a right to air their disputes before judges who
have not committed to rule against them before the opening brief is read. See Caperton,
129 S. Ct. at 2266–67; Bracy v. Gramley, 520 U.S. 899, 904–05 (1997). Whatever else
a fair adjudication requires, it demands that judges decide cases based on the law and
facts before them, not based on “express . . . commitments that they may have made to
their campaign supporters.” Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 227 (7th
Cir. 1993). No one, Carey included, disputes that the Commonwealth has a compelling
interest in “prohibit[ing] candidates from promising to rule a certain way on cases.”
Carey’s Opening Br. at 14–15.
Nor does Carey dispute that the clause narrowly advances this interest—if, that
is, the clause is confined to campaign “commitments” with respect to “cases” or
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“controversies.” So limited, the clause targets the kinds of interests White suggests the
States may protect, as judicial commitments with respect to cases and controversies
implicate not just a lack of open mindedness about the law but a lack of impartiality in
its most essential sense—a commitment to rule for one party over another. See White,
536 U.S. at 775–76 (“[I]mpartiality” in “the traditional sense” means “apply[ing] the law
to [one party] in the same way [one] applies it to any other party.”). The First
Amendment permits a State to limit speech when the Due Process Clause demands
nothing less.
But the canon does not stop there. It also prevents candidates from making
commitments about “issues.” A commitment to rule a certain way on “issues likely to
come before the court” covers a raft of electioneering stands, and it unmoors the
prohibition from “cases” or “controversies” and the party-specific connotations that
come with those terms. As White reminds us, “there is almost no legal or political issue
that is unlikely to come before a judge of an American court, state or federal, of general
jurisdiction.” White, 536 U.S. at 772 (emphasis added and quotation omitted). To make
matters worse, the commentary to the clause says that it covers the “appearance” of
making “issue”-related commitments. Canon 5B(1)(c), Cmt.
Think back to White. How is a judicial candidate’s “announcement” of a position
on a legal “issue” during an election campaign not likely to create the “appearance” that
the candidate has “committed” to “rule a certain way” on the “issue”? And, if that is so,
how can this aspect of the canon survive White, given that it seems to ban what White
permits? These are good questions, but they prompt an even more basic one: what
exactly does the “issues” prohibition cover?
The clause contains a serious level-of-generality problem. At the broadest level
of meaning, it would seem to cover issue-related promises like these: “I commit to
follow stare decisis”; “I commit to follow an originalist theory of constitutional
interpretation” or for that matter “a living constitutionalist theory”; “I commit to a
purposive method of statutory interpretation” or for that matter a “textual” one; “I
commit to use (or not to use) legislative history”; or “I commit to be a rule-of-law
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 26
judge.” One might reasonably say that the clause covers all of these statements, as they
all relate to “issues” likely to come before a court and they all create an “appearance”
of commitment. Yet if that is what the clause means, it is hard to square with the
Constitution. A restriction on such promises does nothing to prevent the kind of
“impartiality” that the States have an interest in securing—defined as bias (or the
appearance of bias) toward particular parties or cases. See White, 536 U.S. at 776–77.
In a narrower sense, however, the “issues” prohibition may serve that interest.
In White itself, the Court contemplated that a State could prevent a candidate from
highlighting an “unbroken record of affirming convictions for rape” because such
statements would “exhibit a bias against parties,” namely against these types of criminal
defendants and in favor of the prosecutor in these types of appeals. 536 U.S. at 777 n.7;
id. at 800–01 (Stevens, J., dissenting). An interpretation of the clause confined to these
kinds of statements thus might advance a compelling state interest and do so narrowly.
In a facial challenge like this one, the ultimate question is one of overbreadth:
Does the law “prohibit[] a substantial amount of protected speech both in an absolute
sense and relative to [the canons’] plainly legitimate sweep”? Connection Distrib. Co.,
557 F.3d at 336 (internal quotations omitted). To determine the extent of a law’s
illegitimate reach, one needs to know what it means, as “it is impossible to determine
whether a statute reaches too far without first knowing what the statute covers.” United
States v. Williams, 553 U.S. 285, 293 (2008).
That inquiry has not happened here—at least with respect to the “issues”
prohibition. In upholding this clause, the district court focused on its application to
“cases” and “controversies” and, to that extent, we agree with its analysis for the reasons
noted. But the district court did not explore the clause’s applicability to “issues,” the
array of settings in which that part of the clause and commentary may apply and the
tension of several of them with White. At oral argument, we asked the parties about the
point. Carey agreed that the commits clause would satisfy the First Amendment if the
clause did not contain an “issues” component to it, and saw the addition of the “issues”
language (together with the commentary) as having two impermissible effects: chilling
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candidates’ free-speech rights to discuss their legal philosophies freely, and effectively
sidestepping White by prohibiting candidates from announcing their positions on legal
issues. The state defendants suggested that a narrowing construction of the “issues”
clause could save it.
Under these circumstances, discretion, to say nothing of respect for a co-equal
sovereign, is the better part of valor. At this point it is not clear what the
Commonwealth’s position on the term is, and the district court has not yet explored these
issues. If we remand this aspect of the case to the district court, the court will have that
chance. So too will the parties—particularly the state defendants, who retain
considerable authority over shaping the clause and the commentary that goes with it.
The state defendants may be able to obtain authority to remove the “issues” language;
they may be able to identify an acceptable narrowing construction of the “issues”
language along with a modification to the commentary; or they may suggest certification
to the Kentucky Supreme Court. Any of these options may spare the federal courts the
task of resolving a difficult constitutional question, and at a minimum they will give the
Commonwealth a first shot at addressing the question.
* * *
There is room for debate about whether the election of state court judges is a
good idea or a bad one. Yet there is no room for debate that, if a State opts to select its
judges through popular elections, it must comply with the First Amendment in doing so.
In this case, we have upheld some components of Kentucky’s Code of Judicial Conduct,
invalidated others and sought clarification of still one other provision. Through it all,
no one should lose sight of the reality that a judicial candidate’s right to engage in
certain types of speech says nothing about the desirability of that speech. The First
Amendment protects the meek and brazen, the “offensive” and agreeable. Texas v.
Johnson, 491 U.S. 397, 414 (1989). Today’s case is about the meaning of the First
Amendment, not about the virtues of some types of judicial campaign speech relative to
others.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 28
V.
For these reasons, we affirm the district court’s judgment as to the party
affiliation and solicitation clauses and vacate its judgment as to the commits clause and
remand the case for further consideration of the meaning and validity of that clause.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 29
APPENDIX A
State Party Affiliation Clause
Kentucky “A judge or 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.” Ky. Code of Jud. Conduct, Canon 5A(2).
Partisan Election
Alabama Judges should refrain from inappropriate political activities, but “it is
realized that a judge or a candidate for election to a judicial office
cannot divorce himself or herself completely from political
organizations and campaign activities . . . .” Ala. Canons of Jud.
Ethics, Canon 7A(1).
Illinois “A judge or candidate may . . . at any time . . . identify himself or
herself as a member of a political party.” Ill. Code of Jud. Conduct,
Canon 7(B)(1).
Louisiana “A judge or a judicial candidate may at any time . . . identify himself
or herself as a member of a political party.” La. Code of Jud. Conduct,
Canon 7(C)(1).
New Mexico “A judge may . . . identify the political party of the judge . . . .” N.M.
Code of Jud. Conduct, Rule 21-700A(2)(b).
Pennsylvania Judges and candidates may “identify themselves as a member of a
political party . . . .” Pa. Code of Jud. Conduct, Canon 7A(2).
Texas “A judge or judicial candidate . . . may indicate support for a political
party.” Tex. Code of Jud. Conduct, Canon 5(2).
West Virginia “A judge or a candidate subject to public election may . . . at any time
. . . identify himself or herself as a member of a political party . . . .”
W. Va. Code of Jud. Conduct, Canon 5C(1).
Partisan Nomination and Nonpartisan Election
Michigan No comparable rule.
Ohio “A judicial candidate shall not . . . [,] [a]fter the day of the primary
election, identify himself or herself in advertising as a member of or
affiliated with a political party.” Ohio Code of Jud. Conduct, Rule
4.2(B)(4).
Nonpartisan Election
Arkansas “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a candidate of a political organization . . . .” Ark.
Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
Georgia No comparable rule.
Idaho No comparable rule.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 30
Minnesota No comparable rule.
Mississippi “Judges . . . or candidates for such office, may . . . identify themselves
as members of political parties . . . .” Miss. Code of Jud. Conduct,
Canon 5C(1).
Montana “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a candidate of a political organization . . . .”
Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
Nevada “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a candidate of a political organization . . . .” Nev.
Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
North Carolina “A judge or a candidate may . . . identify himself/herself as a member
of a political party . . . .” N.C. Code of Jud. Conduct, Canon 7B(3).
North Dakota No comparable rule.
Oregon “[A] judicial candidate shall not knowingly . . . [p]ublicly identify the
judicial candidate, for the purpose of election, as a member of a
political party other than by registering to vote . . . .” Or. Code of Jud.
Conduct, JR 4-102(C).
Washington “Judges or candidates for election to judicial office shall not
. . . identify themselves as members of a political party . . . .” Wash.
Code of Jud. Conduct, Canon 7A(1)(e).
Wisconsin “No judge or candidate for judicial office or judge-elect may . . . [b]e
a member of any political party.” Wis. Code of Jud. Conduct, Rule
60.06(2)(b)(1). But see Siefert v. Alexander, ___ F.3d ___, No. 09-
1713 (7th Cir. June 14, 2010).
Retention Election
Alaska No comparable rule.
Arizona No comparable rule.
California No comparable rule.
Colorado No comparable rule.
Florida “A judicial candidate involved in an election or re-election . . . should
refrain from commenting on the candidate’s affiliation with any
political party or other candidate, and should avoid expressing a
position on any political issue. A judicial candidate attending a
political party function must avoid conduct that suggests or appears to
suggest support of or opposition to a political party, a political issue,
or another candidate.” Fla. Code of Jud. Conduct, Canon 7C(3).
Indiana “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a member or candidate of a political organization
. . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
Iowa No comparable rule.
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Kansas “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a candidate of a political organization . . . .” Kan.
Code of Jud. Conduct, Canon 4, Rule 4.1(B)(5); cf. Kan. Code of Jud.
Conduct, Canon 4, Rule 4.2(D)(1)(b) (Trial court judges subject to
partisan election may “identify” themselves “as a member of a political
party” “at any time”).
Maryland No comparable rule.
Missouri No comparable rule.
Nebraska No comparable rule.
Oklahoma No comparable rule.
South Dakota “A judge or candidate subject to public election may . . . at any time
. . . identify himself or herself as a member of a political party . . . .”
S.D. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
Tennessee “A judge or a candidate subject to election may . . . at any time . . .
identify himself or herself as a member of a political party . . . .”
Tenn. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
Utah “[A] judge or a judicial candidate shall not . . . publicly identify
himself or herself as a member of a political organization . . . .” Utah
Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
Wyoming No comparable rule.
Legislative Election
South Carolina No comparable rule. See S.C. Code of Jud. Conduct, Canon 5A(1).
Judges subject to “public election,” e.g., S.C. Code Ann. § 14-23-30(probate judges), may reveal political party membership “at any time.”
S.C. Code of Jud. Conduct, Canon 5C(1)(a)(ii).
Virginia No comparable rule.
Appointment
Connecticut No comparable rule.
Delaware No comparable rule.
Hawaii No comparable rule.
Maine No comparable rule.
Massachusetts No comparable rule.
New Hampshire No comparable rule.
New Jersey No comparable rule.
New York “A sitting judge . . . [may] . . . identify himself or herself as a member
of a political party . . . .” N.Y. Code of Jud. Conduct, Canon 5A(1)(ii).
Rhode Island No comparable rule.
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Vermont No comparable rule.
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APPENDIX B
State Solicitation Clause
Kentucky “A judge or candidate for judicial office shall not solicit campaign
funds . . . .” Rules of the Supreme Court of Kentucky 4.300, Canon
5B(2).
Partisan Election
Alabama “A candidate is strongly discouraged from personally soliciting
campaign contributions.” Ala. Canons of Jud. Ethics, Canon 7B(4)(a).
Illinois “A candidate shall not personally solicit or accept campaign
contributions.” Ill. Code of Jud. Conduct, Canon 7B(2).
Louisiana “A judge or judicial candidate shall not personally solicit or accept
campaign contributions.” La. Code of Jud. Conduct, Canon 7D(1).
New Mexico “[C]andidates . . . may solicit contributions for their own campaigns”
but they “shall not accept any contribution that creates an appearance
of impropriety” and “shall not personally solicit or personally accept
campaign contributions from any attorney, or from any litigant in a
case pending before the candidate. . . . Campaign committees shall not
disclose to the judge or candidate the identity or source of any funds
raised by the committee.” N.M. Code of Jud. Conduct, Rules 21-
800A–F.
Pennsylvania “Candidates . . . should not themselves solicit or accept campaign
funds, or solicit publicly stated support . . . .” Pa. Code of Jud.
Conduct, Canon 7B(2).
Texas Judges and judicial candidates may accept “political contribution[s]”
during a specified period of time around the election. Tex. Elec. Code
Ann. § 253.153.
West Virginia “A candidate shall not personally solicit or accept campaign
contributions or personally solicit publicly stated support.” W. Va.
Code of Jud. Conduct, Canon 5C(2).
Partisan Nomination and Nonpartisan Election
Michigan “A judge should not personally solicit or accept campaign funds . . . .”
Mich. Code of Jud. Conduct, Canon 7B(2)(a).
Ohio “A judicial candidate shall not personally solicit or receive campaign
contributions.” Ohio Code of Jud. Conduct, Rule 4.4(A).
Nonpartisan Election
Arkansas “[A] judge or a judicial candidate shall not . . . personally solicit or
accept campaign contributions other than through a campaign
committee . . . .” Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).
Georgia “Candidates . . . may personally solicit campaign contributions and
publicly stated support.” Ga. Code of Jud. Conduct, Canon 7B(2).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 34
Idaho “A candidate shall not solicit campaign contributions in person. . . .
Except as required by law, a candidate’s judicial election committee
should not disclose the names of contributors to judicial campaigns
and judicial candidates and judges should avoid obtaining the names
of contributors to the judicial campaign.” Idaho Code of Jud. Conduct,
Canon 5C(2).
Minnesota “[A] judge or judicial candidate shall not . . . personally solicit or
accept campaign contributions,” except that he or she may “make a
general request for campaign contributions when speaking to an
audience of 20 or more people; sign letters . . . soliciting campaign
contributions . . . [and] personally solicit campaign contributions from
members of the judge’s family, from a person with whom the judge
has an intimate relationship, or from judges over whom the judge does
not exercise supervisory or appellate authority.” Minn. Code of Jud.
Conduct, Canon 4, Rules 4.1(A)(6), 4.2(B)(3).
Mississippi “A candidate shall not personally solicit or accept campaign
contributions or personally solicit publicly stated support.” Miss.
Code of Jud. Conduct, Canon 5C(2).
Montana Candidates may solicit. See Mont. Code of Jud. Conduct, Canon 4,
Rule 4.4, Cmt. 1 (permitting candidates “to solicit financial or in-kind
campaign contributions personally or to establish campaign
committees to solicit and accept such contributions”).
Nevada Candidates may solicit. See Nev. Code of Jud. Conduct, Canon 4,
Rule 4.4, Cmt. 1 (“A candidate may personally solicit or accept
campaign contributions . . . .”).
North Carolina “A judge or a candidate may . . . personally solicit campaign funds and
request public support from anyone for his/her own campaign . . . .”
N.C. Code of Jud. Conduct, Canon 7B(4).
North Dakota “A candidate shall not directly and personally solicit or accept
campaign contributions,” but “the candidate may orally solicit
contributions . . . in front of large groups or organizations” and “[t]he
candidate’s actual signature or a reproduction of the signature may
appear on letters or other printed or electronic materials distributed by
the committee which solicit contributions . . . from individuals or large
groups.” N.D. Code of Jud. Conduct, Canon 5C(2). Additionally,
“[t]he candidate must take reasonable measures to ensure the names
and responses, or lack thereof, of the recipients of solicitations for
contributions will not be disclosed to the candidate.” Id.Oregon “[A] judicial candidate shall not knowingly . . . [p]ersonally solicit
campaign contributions in money or in kind . . . .” Or. Code of Jud.
Conduct, JR 4-102(D).
Washington “Candidates, including incumbent judges, for a judicial office that is
filled by public election between competing candidates shall not
personally solicit or accept campaign contributions.” Wash. Code of
Jud. Conduct, Canon 7B(2).
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Wisconsin “A judge, candidate for judicial office, or judge-elect shall not
personally solicit or accept campaign contributions.” Wis. Code of
Jud. Conduct, Rule 60.06(4).
Retention Election
Alaska “A judge who is a candidate for retention in judicial office shall not
personally solicit or accept any funds to support his or her candidacy
. . . .” Alaska Code of Jud. Conduct, Canon 5C(3).
Arizona “A judge or a judicial candidate shall not . . . personally solicit or
accept campaign contributions other than through a campaign
committee . . . .” Ariz. Code of Jud. Conduct, Canon 4, Rule
4.1(A)(6).
California Candidates may solicit. See Cal. Code of Jud. Ethics, Canon 5A, Cmt.
(“[J]udges are neither required to shield themselves from campaign
contributions nor are they prohibited from soliciting contributions from
anyone including attorneys.”).
Colorado “If there is active opposition to the retention of a candidate judge . . .
any committee . . . may raise funds for the judge’s campaign, but the
judge should not solicit funds personally or accept any funds . . . .”
Colo. Code of Jud. Conduct, Canon 7B(2)(d).
Florida “A candidate, including an incumbent judge, for a judicial office that
is filled by public election between competing candidates shall not
personally solicit campaign funds . . . .” Fla. Code of Jud. Conduct,
Canon 7C(1).
Indiana “[A] judge or a judicial candidate shall not . . . personally solicit or
accept campaign contributions other than through a campaign
committee . . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).
Iowa No rule directly addressing personal solicitation. See Iowa Code of
Jud. Conduct, Canon 7B(2) (“A judge . . . whose candidacy has drawn
active opposition, may campaign in response thereto and may establish
committees of responsible persons to obtain publicly stated support
and campaign funds.”).
Kansas “A judicial candidate may also personally solicit or accept campaign
contributions.” Kan. Code of Jud. Conduct, Canon 4, Rule 4.4(A).
Maryland No comparable rule. See Md. Code of Jud. Conduct, Canon 5B,
Comm. Note (a prohibition on personal solicitation “may be too
restrictive”).
Missouri “A candidate, including an incumbent judge, for a judicial office . . .
shall not solicit in person campaign funds from persons likely to
appear before the judge. A candidate may make a written campaign
solicitation for campaign funds of any person or group, including any
person or group likely to appear before the judge.” Mo. Code of Jud.
Conduct, Canons 5B(2)–(3).
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Nebraska “A judicial candidate for retention election whose candidacy has
drawn active opposition shall not personally solicit or accept campaign
contributions . . . .” Neb. Code of Jud. Conduct, Canon 5(C)(2).
Oklahoma “A candidate should not personally solicit campaign contributions
. . . .” Okla. Code of Jud. Conduct, Canon 5C(2).
South Dakota “Candidates, including an incumbent judge, may personally solicit
campaign contributions . . . from individuals and organizations other
than political parties.” S.D. Code of Jud. Conduct, Canon 5C(2).
Tennessee “A candidate shall not personally solicit or accept campaign
contributions.” Tenn. Code of Jud. Conduct, Canon 5C(2)(a).
Utah “The judge shall not directly solicit or accept campaign funds . . . .”
Utah Code of Jud. Conduct, Canon 4, Rule 4.2(B)(2).
Wyoming “[T]he judge shall not solicit funds personally or accept any funds
. . . and . . . the judge shall not be advised of the source of funds raised
by the committees.” Wyo. Code of Jud. Conduct, Canon 4, Rules
4.2(B)(4)–(5).
Legislative Election
South Carolina “A candidate for appointment to judicial office . . . shall not solicit or
accept funds, personally or through a committee or otherwise, to
support his or her candidacy.” S.C. Code of Jud. Conduct, Canon
5B(1).
Virginia No comparable rule.
Appointment
Connecticut No comparable rule.
Delaware No comparable rule.
Hawaii No comparable rule.
Maine No comparable rule as to appointed judges. Candidates for “election
or reelection as a judge of probate shall not personally solicit or accept
campaign contributions or personally solicit stated support.” Maine
Code of Jud. Conduct, Canon 5(C).
Massachusetts No comparable rule.
New Hampshire No comparable rule.
New Jersey No comparable rule.
New York “A judge or candidate for public election to judicial office shall not
personally solicit or accept campaign contributions . . . .” N.Y. Code
of Jud. Conduct, Canon 5A(5); see also Cmt. 5.1 (“Canon 5 generally
applies to all incumbent judges . . . .”).
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Rhode Island “A candidate for appointment to judicial office . . . shall not solicit or
accept funds, personally or through a committee or otherwise, to
support his or her candidacy.” R.I. Code of Jud. Conduct,
Canon5B(1).
Vermont “A candidate for appointment to . . . state judicial office . . . shall not
. . . solicit or accept funds, personally or through a committee or
otherwise, to support the candidacy . . . .” Vt. Code of Jud. Conduct,
Canon 5B(4)(d).
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APPENDIX C
State Commits Clause
Kentucky “A judge or candidate for election to judicial office . . . shall not
intentionally or recklessly make 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 . . . .” Rules of the Supreme Court of Kentucky 4.300 Canon
5B(1)(c).
Partisan Election
Alabama “A candidate for judicial office . . . [s]hall not make any promise of
conduct in office other than the faithful and impartial performance of
the duties of the office [and] shall not announce in advance the
candidate’s conclusions of law on pending litigation . . . .” Ala.
Canons of Jud. Ethics, Canon 7B(1)(c).
Illinois A “candidate for judicial office” shall not “make statements that
commit or appear to commit the candidate with respect to cases,
controversies or issues within cases that are likely to come before the
court.” Ill. Code of Jud. Conduct, Canon 7A(3)(d)(i).
Louisiana A “judge or judicial candidate . . . shall not . . . with respect to cases,
controversies, or issues that are likely to come before the court, make
pledges, promises or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office.” La.
Code of Jud. Conduct, Canon 7B(1)(d)(i).
New Mexico “A judge shall not, with respect to cases, controversies or issues that
are likely to come before the court, make pledges, promises or
commitments that are inconsistent with the impartial performance of
the adjudicative duties of the office.” N.M. Code of Jud. Conduct,
Rule 21-300B(11).
Pennsylvania “Candidates . . . should not . . . make statements that commit the
candidate with respect to cases, controversies or issues that are likely
to come before the court.” Pa. Code of Jud. Conduct, Canon 7B(1)(c).
Texas “A judge or judicial candidate shall not . . . make pledges or promises
of conduct in office regarding pending or impending cases, specific
classes of cases, specific classes of litigants, or specific propositions
of law that would suggest to a reasonable person that the judge is
predisposed to a probable decision in cases within the scope of the
pledge . . . .” Tex. Code of Jud. Conduct, Canon 5(1)(i).
West Virginia “A candidate for judicial office . . . 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 . . . .”
W. Va. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 39
Partisan Nomination and Nonpartisan Election
Michigan “A candidate . . . should not make pledges or promises of conduct in
office other than the faithful and impartial performance of the duties
of the office . . . .” Mich. Code of Jud. Conduct, Canon 7B(1)(c).
Ohio “A judge or judicial candidate shall not . . .[i]n connection with cases,
controversies, or issues that are likely to come before the court, make
pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Ohio Code of Jud. Conduct, Rule 4.1(A)(7).
Nonpartisan Election
Arkansas “[A] judge or a judicial candidate shall not . . . in connection with
cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
Georgia “Candidates . . . shall not make statements that commit the candidate
with respect to issues likely to come before the court . . . .” Ga. Code
of Jud. Conduct, Canon 7B(1)(b).
Idaho “A candidate for judicial office . . . 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 . . . .”
Idaho Code of Jud. Conduct, Canon 5A(4)(d)(ii).
Minnesota “[A] judge or a judicial candidate shall not . . . in connection with
cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Minn. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(11).
Mississippi “A candidate for judicial office . . . 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 . . . .”
Miss. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Montana “[A] judge or a judicial candidate shall not . . . in connection with
cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(12).
Nevada “[A] judge or a judicial candidate shall not . . . in connection with
cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Nev. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
North Carolina No comparable rule. See N.C. Code of Jud. Conduct, Canon 7C.
Judges should “abstain from public comment about the merits of a
pending proceeding.” Id., Canon 3A(6).
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North Dakota “A candidate for a judicial office . . . shall not . . . with respect to
cases, controversies or issues that are likely to come before the court,
make pledges, promises or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office . . . .”
N.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).
Oregon “[A] judicial candidate shall not knowingly . . . [m]ake pledges or
promises of conduct in office that could inhibit or compromise the
faithful, impartial and diligent performance of the duties of the office
. . . .” Or. Code of Jud. Conduct, JR 4-102(B).
Washington “Candidates, including an incumbent judge, for a judicial office
. . . 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 . . . .” Wash. Code of Jud. Conduct,
Canon 7B(1)(c)(ii).
Wisconsin “A judge, judge-elect, or candidate for judicial office shall not make
or permit or authorize others to make on his or her behalf, with respect
to cases, controversies, or issues that are likely to come before the
court, pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office.” Wis.
Code of Jud. Conduct, Rule 60.06(3)(b).
Retention Election
Alaska “A candidate for judicial office . . . shall not . . . make statements that
commit or appear to commit the candidate to a particular view or
decision with respect to cases, controversies or issues that are likely to
come before the court . . . .” Alaska Code of Jud. Conduct, Canon
5A(3)(d)(ii).
Arizona “A judge or a judicial candidate shall not . . . in connection with cases,
controversies, or issues that are likely to come before the court, make
pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Ariz. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(10).
California “A candidate for election or appointment to judicial office shall not . . .
make statements to the electorate or the appointing authority that
commit the candidate with respect to cases, controversies, or issues
that could come before the courts . . . .” Cal. Code of Jud. Ethics,
Canon 5B.
Colorado “A judge who is a candidate for retention in office . . . should not make
pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office [or] announce how the
judge would rule on any case or issue that might come before the judge
. . . .” Colo. Code of Jud. Conduct, Canon 7B(1)(c).
Florida “A candidate for a judicial office . . . shall not . . . with respect to
parties or classes of parties, cases, controversies, or issues that are
likely to come before the court, make pledges, promises, or
commitments that are inconsistent with the impartial performance of
the adjudicative duties of the office . . . .” Fla. Code of Jud. Conduct,
Canon 7A(3)(e)(i).
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Indiana “[A] judge or a judicial candidate shall not . . . in connection with
cases, controversies, or issues that are likely to come before the court,
make pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).
Iowa “A judge who is a candidate for retention in judicial office . . . [s]hould
not, with respect to cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that
are inconsistent with the impartial performance of the adjudicative
duties of the office.” Iowa Code of Jud. Conduct, Canon 7B(1)(e).
Kansas “A judge or a judicial candidate shall not . . . in connection with cases,
controversies, or issues that are likely to come before the court, make
pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of judicial office.”
Kan. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).
Maryland “A judge who is a candidate for election or re-election to or retention
in a judicial office . . . with respect to a case, controversy or issue that
is likely to come before the court, shall not make a commitment,
pledge, or promise that is inconsistent with the impartial performance
of the adjudicative duties of the office . . . .” Md. Code of Jud.
Conduct, Canon 5B(1)(d).
Missouri “A candidate . . . shall not make pledges or promises of conduct in
office other than the faithful and impartial performance of the duties
of the office . . . .” Mo. Code of Jud. Conduct, Canon 5B(1)(d).
Nebraska “A candidate for a judicial office . . . [s]hall 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 . . . .”
Neb. Code of Jud. Conduct, Canon 5(A)(3)(d)(ii).
Oklahoma “A candidate for judicial office . . . should not . . . with respect to
cases, controversies, or issues that are likely to come before the court,
make pledges, promises or commitments that are inconsistent with
impartial performance of the adjudicative duties of the office . . . .”
Okla. Code of Jud. Conduct, Canon 5A(3)(d)(i).
South Dakota “A candidate for a judicial office . . . shall not . . . with respect to
cases, controversies, or issues that are likely to come before the court,
make pledges, promises or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office . . . .”
S.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).
Tennessee “A candidate for a judicial office . . . 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 . . . .”
Tenn. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Utah “[A] judge or a judicial candidate shall not . . . make pledges,
promises, or commitments other than the faithful, impartial and
diligent performance of judicial duties.” Utah Code of Jud. Conduct,
Canon 4, Rule 4.1(A)(11).
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Wyoming “A judge who is a candidate for retention in office shall . . . not make
pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office [or] announce how the
judge would rule on any case or issue that might come before the judge
. . . .” Wyo. Code of Jud. Conduct, Canon 4, Rule 4.2(A)(5).
Legislative Election
South Carolina “A candidate for a judicial office . . . 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 . . . .”
S.C. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Virginia No comparable rule.
Appointment
Connecticut No comparable rule.
Delaware No comparable rule.
Hawaii “[A] judge shall not . . . in connection with cases, controversies, or
issues that are likely to come before the court, make pledges, promises,
or commitments that are inconsistent with the impartial performance
of the adjudicative duties of judicial office.” Haw. Code of Jud.
Conduct, Canon 4, Rule 4.1(a)(13).
Maine “A candidate for appointment to judicial office . . . shall not . . . make
pledges or promises of conduct in office other than the faithful and
impartial performance of the duties of the office [or] 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 . . . .”
Maine Code of Jud. Conduct, Canon 5(B).
Massachusetts No comparable rule.
New Hampshire “A candidate for judicial office . . . shall not . . . with respect to cases,
controversies or issues that are likely to come before the court, make
pledges, promises or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office . . . .”
N.H. Code of Jud. Conduct, Canon 5B(1)(b)(i).
New Jersey No comparable rule.
New York “A judge or a non-judge who is a candidate for public election to
judicial office shall not . . . with respect to cases, controversies or
issues that are likely to come before the court, make commitments that
are inconsistent with the impartial performance of the adjudicative
duties of the office . . . .” N.Y. Code of Jud. Conduct, Canon
5A(4)(d)(ii).
Rhode Island “A candidate for a judicial office . . . 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 . . . .”
R.I. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 43
Vermont “A candidate for appointment to . . . state judicial office . . . 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 . . . .” Vt. Code of Jud. Conduct, Canon 5B(4)(b).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 44
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CONCURRING IN PART AND DISSENTING IN PART
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WISEMAN, District Judge, concurring in part and dissenting in part. I concur
in the judgment of affirmance of the District Court on the party affiliation and
solicitation clauses, as well as affirmance of the “cases and controversies” portion of the
commits clause. I would go further and affirm the District Court in upholding the entire
commits clause, including the issues portion. The majority’s concern with an overly
broad interpretation of what constitutes a commitment to vote a certain way or bias
toward a party based on campaign promises regarding an “issue,” amounts to the
construction of a straw man. I believe a candidate for judge knows exactly when she is
making a commitment, or giving the appearance of such a commitment. I believe the
same is true of the enforcer of the canons. Is there any doubt about commitment when
a candidate professes to believe that life begins at conception? Is there any committed
bias in favor of a potential party when a candidate for judge states a “strong belief in the
right to keep and bear arms?” Maybe the definition of White-permitted issue
commitments is like the definition of pornography. Anyone with common sense knows
the portent of a campaign commitment when he hears it. Yet by remand we are asking
the District Court to do what the Supreme Court could not do in White and we are unable
to do here.
Maintenance of public confidence that a litigant will receive an unbiased hearing
in the courts is as compelling an interest as any possessed by the Commonwealth of
Kentucky. The canon here appropriately addresses that interest. Definitional
disagreements, if they arise, can be addressed when they arise.
I respectfully dissent from the holding of the majority vacating the District Court
in respect to the commits clause.