Cameron Blau v. Hon Steven D. Wolnitzek in His Official Capacity as Chair, Judicial Conduct Commission

RENDERED: FEBRUARY 18, 2016
TO BE PUBLISHED
oSuprrittr Caurf TArttfurhu
2015-SC-000086-CL
IN RE: F
ROBERT A. WINTER, JR., PLAINTIFF
AND
CAMERON BLAU AND
HONORABLE ALLISON JONES,
INTERVENING PLAINTIFFS
THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY, NORTHERN DIVISION
COVINGTON, CIVIL NO. 14-119-ART
HONORABLE STEPHEN D. WOLNITZEK,
IN HIS OFFICIAL CAPACITY AS CHAIR,
JUDICIAL CONDUCT COMMISSION, ET AL.
OPINION OF THE COURT BY JUSTICE VENTERS
CERTIFYING THE LAW
Pursuant to CR 76.37(1), we granted the certification request of the
United States District Court for the Eastern District of Kentucky (District
Court), to provide the answer under Kentucky law to the following three
questions and the associated sub-questions:
Question 1:
Canon 5A(1)(a) states that a judge or judicial candidate shall not
"campaign as a member of a political organization." What
constitutes "campaign[ing] as a member of a political
organization"? As applied to this case, would it include a
candidate's statements in mailers identifying his political party,
such as "I am the only Republican candidate for Judge" or "I am
the Conservative Republican candidate for Judge"? Would a
candidate's statement that his opponent was "the Democrat
candidate for Judge" or the "Liberal Democrat for Judge" violate
the Canon?
Question 2:
Canon 5A(1)(b) states that a judge or judicial candidate shall not
"act as a leader or hold any office in a political organization." What
constitutes "act[ing] as a leader or hold[ing] any office"? As applied
to this case, would hosting events for a political party violate the
Canon?
Question 3:
Canon 5B(1)(c) states that a judge or judicial candidate "shall not
knowingly, or with reckless disregard for the truth, misrepresent
any candidate's identity, qualifications, present position, or make
any other false or misleading statements." What constitutes a false
statement? As applied to this case, would it include a candidate
who asks voters to "re-elect" her to a second term even though she
was appointed to her first term?
These canons were promulgated by this Court with the objective of
complying with Section 117 of our Constitution requiring that "Justices of the
Supreme Court and judges of the Court of Appeals, Circuit and District Court
shall be elected from their respective districts or circuits on a nonpartisan basis
as provided by law." (Emphasis added.) We interpret this provision of the
Kentucky Constitution as directing that Kentucky's judicial elections be
nonpartisan in truth and substance, and not merely in process and procedure
by the superficial omission of a political party designation on the voting ballot.
Accordingly, we provide the following certification of Kentucky law in response
to the District Court's questions.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
Robert A. Winter, Jr., filed to run in the May 2014 primary election as a
candidate for circuit court judge in the 16th Judicial Circuit (Campbell
County). As part of his campaign strategy, Winter mailed brochures to
registered Republican voters identifying himself as a registered Republican
and, conversely, identifying his opponents as registered Democrats. After the
brochures were sent out, the Kentucky Judicial Conduct Commission (JCC)
notified Winter that it had received complaints that his brochures violated the
Kentucky Code of Judicial Conduct. Winter responded in June 2014 by filing
suit in the District Court against the JCC challenging the constitutionality of
Canons 5A(1)(a) (prohibiting judges and judicial candidates from campaigning
as a member of a political organization) and 5B(1)(c) (prohibiting judges or
judicial candidates from making "false" or "misleading" statements).
During the same election cycle, Cameron Blau entered the race as a
candidate for district court judge in the 17th Judicial District (Campbell
County). Because Blau likewise intended to openly campaign as a Republican
and send brochures likewise identifying himself as a Republican, in October
2014, Blau filed an intervening complaint to join Winter's challenge to Canons
5A(1)(a) and 5B(1)(c). As relevant here, Blau also challenged the
constitutionality of Canon 5A(1)(b) (a judicial candidate shall not "act as a
leader or hold any office in a political organization"). In his complaint, Blau
stated that he wanted to send out brochures to potential voters identifying
himself as "the only Republican candidate for Judge," or "the Conservative
3
Republican candidate for Judge" and identifying his opponent as "the
Democrat candidate" or the "Liberal Democrat for Judge." Blau also indicated
in his complaint that he wanted to seek the endorsement of the local
Republican Party, host events for the local Republican Party, and make
political donations to members of the Republican Party.' In a lengthy order
preliminarily addressing the constitutionality of the canons under review (the
Injunction Order), the District Court concluded that there was a likelihood that
each of the canons at issue was unconstitutional, and granted Blau's motion to
prevent the JCC from enforcing the canons against him in the November 2014
election.
Allison Jones was appointed by Governor Steve Beshear to the Kentucky
Court of Appeals in July 2013. To retain the office to which she was appointed,
Jones became a candidate in the November 2014 General Election. In October
2014, the JCC received a complaint alleging that Judge Jones had made false
and misleading statements in speeches and campaign materials. The "false
and misleading statements" referred to Jones' use of the word "re-elect" to
describe her effort to retain the judicial position to which she had been
appointed rather than "elected." Jones then intervened in Winter's District
Court action, contending that Canon 5B(1)(c) (prohibiting false statements) was
unconstitutional. The only issue presented in Jones' portion of the case is
whether an incumbent judge who was appointed to office may properly use the
1 Blau also raised constitutional challenges to other judicial canons not at issue
in the questions of law presently before us.
4
word "re-elect" to describe her effort to retain the office to which she was
appointed but not elected.
It is within the context of this litigation that the District Court requested
that we certify the law on the questions addressed herein.
II. GENERAL CONSIDERATIONS
We begin with a few general considerations that guide our examination of
the questions presented by the District Court. First, pursuant to the Kentucky
Constitution, all judges and justices at every level of the state judiciary are
selected by ballots cast by the people of Kentucky. Ky. Const. § 117. Thus, we
recognize that the judicial canons we address in this decision were designed to
serve the state's compelling interest of encouraging an unbiased and impartial
judiciary for the Commonwealth, and that the Commonwealth's interest is
offset by restricting the political speech of only the few who volunteer to be a
candidate for office, not their supporters, advocates, and non-candidate
adversaries.
The ultimate objective of our system of judicial selection is to achieve a
delicate balance. On one side of the scales, we must foster and protect the
people's prerogative to choose by direct vote the judges that preside locally and
statewide. On the other side of the scales, we must create a political
environment in which judges selected by the citizens are not tethered, or
beholden to partisan political factions and their associated creeds. And, we
must do so in a way that preserves the judiciary as an institution that is not
partial to or biased against any political faction.
5
The federal judicial system achieves this balance by an effective but
different approach. Rather than selecting judges by popular election, the
federal system selects judges by the collaborative effort of the political
branches, the executive and the legislative, based upon any and all factors
including the nominee's political ties, beliefs, and political ideologies. The
federal system achieves its assurance that judges are not beholden to political
interests and factions by appointing them for life. With the lifetime tenure,
federal judges are liberated from any ties or allegiance to the political factions
that supported their ascension, and that might otherwise seek to influence
them.
The federal system secures the government's vital interest in an
independent judiciary at the expense of the people's ability to choose and
replace their judges. Kentuckians, like the citizens of most states, chose to
achieve the same balance by alternate means. We have judges who must earn
the public's respect and maintain the public's confidence by periodically
entering and re-entering the arena of elective politics. Kentucky, like most
states, assures the impartiality and integrity of the judiciary, not with a lifetime
appointment, but through moderate restrictions on partisan activities set out
in canons of conduct. The judicial canons at issue in this case perform the
same function of keeping judges free from the potentially corruptive influences
and appearances of partisan politics accomplished in the federal system by the
lifetime tenure of judges. As such, the canons that make up our Code Judicial
6
Conduct advance a laudable and necessary goal that serves a vital interest of
this Commonwealth.
In the discussions of the judicial canons at hand, we are mindful that the
public's trust in, and respect for, its judiciary is at stake. We accordingly are
constrained to undertake a narrow view of those canons as we answer the
questions posed by the District Court. At the same time we provide an
interpretation that complies with controlling First Amendment case authorities,
strict scrutiny, and other relevant, constitutional principles relating to
vagueness, overinclusiveness, and underinclusiveness.
III. STANDARDS OF REVIEW
Our canons of judicial conduct are set forth in Supreme Court Rule
(SCR) 4.300. The preamble to the canons states in part:
The Code of Judicial Conduct is intended to establish standards
for ethical conduct of judges. It [of necessity] consists of broad
statements . . . .
The Canons and Sections are rules of reason. They should be
applied consistent with constitutional requirements, statutes,
other court rules and decisional law and in the context of all
relevant circumstances . . . .
This litigation concerns the restrictions on the speech of judicial
candidates in judicial elections. Because the First Amendment 2 reviles
2 The First Amendment provides that Congress "shall make no law . . .
abridging the freedom of speech." The Fourteenth Amendment makes that prohibition
applicable to the States. Stromberg v. California, 283 U.S. 359, 368 (1931).
7
restrictions on core political speech, 3 such restrictions are subject to the strict
scrutiny standard. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665
(2015). 4 Under the strict scrutiny standard, "[a] State may restrict the speech
of a judicial candidate only if the restriction is narrowly tailored to serve a
compelling interest." Id. Prior authorities have identified and held that there is
a compelling governmental interest in encouraging an unbiased and impartial
judiciary and in maintaining the integrity of the judiciary. See id. at 1666(States have a compelling interest in preserving public confidence in the
integrity of the judiciary). Those are precisely the interests addressed in the
canons under review.
We interpret the law, including the judicial canons now under review, by
applying the plain and ordinary meaning of relevant text. Pearce v. University
of Louisville, by & through its Board of Trustees, 448 S.W.3d 746, 749 (Ky.
2014). 5 We fundamentally undertake to construe the law so as to avoid an
unconstitutional result. Caneyville Volunteer Fire Department v. Green's
Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009); Ballinger v.
3 Speech concerning public issues and the qualifications of candidates for
elective office commands the highest level of First Amendment protection. See Eu v.
San Francisco County Democratic Central Committee., 489 U.S. 214, 223 (1989).
4 This holding appears in Section II of Williams-Yulee, which was joined by only
four Justices. However, the four dissenters likewise agree that strict scrutiny is the
proper standard of review of laws constraining judicial campaign speech. Accordingly,
it is now definitively established that strict scrutiny is the proper standard of review in
judicial electioneering cases.
5 Of course, there is an obvious difference between our interpretation of
legislative acts, in which our principal objective is to determine the intent of another
body; here, the judicial canons we interpret were promulgated by this Court, and thus
in this sense we are interpreting our own work.
8
Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015) (citations omitted). Of course
this fundamental rule of construction also applies to the interpretation of the
rules we promulgate. Summe v. Judicial Retirement and Removal Commission,
947(S.W.2d 42, 47 (Ky. 1997). Moreover, we accede to the decisions of the
federal courts addressing important First Amendment issues relating to judicial
candidate electioneering. Because recent federal decisions guide our
interpretation of the canons at issue, we begin with a brief overview of their
central holdings.
In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the
Supreme Court struck down a Minnesota judicial canon which prohibited
candidates for judicial election from announcing their views on disputed legal
or political issues. Proponents of the canon argued that it survived the strict
scrutiny test because it served the compelling governmental interest of
preserving the appearance of an impartial judiciary. The Court, however,
concluded that the canon failed the strict scrutiny test because it did not
advance the proffered interest. The Court held that the canon did not preserve
the appearance of an impartial judiciary because it did not restrict speech
advocating for or against particular parties or political factions; rather, it
restricted candidates from expressing their own personal opinions on popular
issues. The Court found no compelling state interest in suppressing judicial
candidates' views on such issues. 6
6 See also J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991) (Panel of Special
Justices) (Code of Judicial Conduct provision prohibiting all discussion of judicial
9
In Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672(E.D. Ky. 2004), the District Court considered Kentucky's Judicial Canon
5B(1)(c), which provided, in relevant part, that a judge or candidate 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; [and] 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[.]" In
striking down the canon, the District Court held that the canon was
unconstitutionally overbroad in that it was not limited to a ban on promises or
commitments by candidates to rule a certain way on cases likely to come before
them (which would be sustainable as furthering a compelling government
interest in securing judicial open mindedness), and it consequently stifled the
right of judges and candidates to speak out on issues and the corresponding
right of voters to hear their views. Consistent with that determination the
decision further held that judicial candidates cannot be prohibited from
responding to election issue questionnaires inquiring into their positions on
public issues.
In Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010), the Sixth Circuit
Court of Appeals held that a former version of Kentucky Judicial Canon 5A(2),
which prohibited judges and judicial candidates from disclosing their party
candidate's views on disputed legal or political issues unnecessarily violated
constitutional free speech rights of judicial candidates).
10
affiliation in any form of advertising, or when speaking to a gathering, except in
answer to a direct question by a voter in one-on-one or very small private
informal settings, was unconstitutional because it was not narrowly tailored to
advance the Commonwealth's interest in preventing a biased judiciary, or
diminishing the role of political parties in judicial selection, and thus the canon
facially violated free speech and associational rights. The Sixth Circuit
reasoned that by prohibiting candidates from disclosing their party affiliations,
the clause effectively prevented candidates from announcing their individual
views on many issues to the extent that a party identification signals the
judicial candidate's alignment with the views incorporated into a political
party's platform. The decision further held that the canon was underinclusive
for these additional reasons: the identification of the candidate's party
affiliation was forbidden only when the candidate raised the point and could
otherwise be disclosed by the candidate's supporters; judicial candidates were
not restrained from disclosing their memberships or affiliations with other
types of organizations that advocated political opinions, such as the Federalist
Society or the ACLU, which may be more telling than one's actual party
identification itself; and the canon did not prohibit judicial candidates from
being members of a political party. Rather, it only prohibited them from
announcing their particular party membership.?
7 Carey also held that our canon prohibiting a judicial candidate from
personally soliciting funds was unconstitutional; however, that holding has been
superseded by Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding
restrictions on a judicial candidate's personal solicitation of campaign funds).
11
Most recently, and perhaps most importantly, the Supreme Court
decided in Williams-Yulee that a Florida judicial canon restricting a judicial
candidate's personal solicitation of campaign funds was constitutional because
it was narrowly tailored to serve the compelling governmental interest in
obviating the indecorous practice of an attorney who regularly practiced before
a judge, or a litigant with a case pending before a judge, personally handing
cash to the judge or being placed in the untenable position of rebuffing the
judge's personal solicitation. See also Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868, 889 (2009) (holding that there is serious risk of actual bias,
based on objective and reasonable perceptions, when a person with a personal
stake in a particular case has significant and disproportionate influence in
placing a judge on the case by raising funds, or by directing a judge's election
campaign, when the case was pending or imminent).
With the above standards and constitutional limitations in mind, we now
turn to the particular questions posed by the District Court in its certification
of law request.
IV. QUESTION I - CANON 5A(1)(A)
The District Court's first question seeks certification of a broadly-stated
question along with two more specific subparts. Canon 5A(1)(a) states as
follows:
Canon 5. A judge or judicial candidate shall refrain from
inappropriate political activity.
A. Political Conduct in General.
12
(1) Except as permitted by law, a judge or a candidate for election
to judicial office shall not:
(a) campaign as a member of a political organization[.]
(Emphasis added.) The section is further clarified by the following official
commentary:
A judge or a candidate for election to judicial office retains the right
to participate in the political process as a voter. A judge or a
candidate for election to judicial office may publicly affiliate with a
political organization but may not campaign as a member of a
political organization.
Because the specific prohibition contained in Canon 5A(1)(a) (shall not . .
. campaign as a member of a political organization) is limited by the
introductory clause "except as permitted by law," our interpretation of the
section is guided by the various First Amendment court decisions addressing
judicial campaign issues as referenced above.
A. Answer to Question 1: What constitutes "campaign[ing] as a
member of a political organization"?
The Terminology Section of SCR 4.300 defines a "political organization"
as "denot[ing] a political party or other group, the principal purpose of which is
to further the election or appointment of candidates to political office." The
Democrat and Republican parties clearly fall within this definition. Carey held
that a judicial candidate cannot be restrained from identifying himself as a
member of a political party, and our current version of Canon 5 was
promulgated in response to that decision. It follows that the canon does not,
and indeed could not, reach that activity. In summary, a judicial candidate
may identify himself to the public as a member of a political party. Carey v.
13
Wolnitzek, 614 F.3d 189; Commentary to Canon 5 ("a candidate for election to
judicial office may publicly affiliate with a political organization").
Nevertheless, there is a vast difference between the permissible speech of
a judicial candidate identifying herself as a member of a political party and the
impermissibly deceptive conduct of representing herself as the nominee of a
political party. The former statement would be true; the latter is by any
standard, blatantly false. Canon 5A(1)(a) draws that distinction.
The Canon 5 provision proscribing "campaigning as a member of a
political organization" prohibits the dissemination of campaign materials and
other public representations suggesting to the voters that the candidate is the
endorsed judicial nominee of a political party. For example, a campaign
representation such as "I am the Republican candidate for the 16th Judicial
Circuit Court" is impermissible. There is no "Republican candidate" for that
office; the assertion is materially false and misleading. See Canon 5B(1)(c)
(prohibiting materially false statements). Political parties and factions do not
select or nominate candidates for judicial office in Kentucky. Canon 5A(1)(a)
merely recognizes and faithfully codifies this Constitutional reality.
B. Answer to Question 1A: As applied to this case, would it include a
candidate's statements in mailers identifying his political party,
such as "I am the only Republican candidate for Judge" or "I am the
Conservative Republican candidate for Judge"?
As noted above, pursuant to Carey, prohibiting a judicial candidate from
identifying himself as a member of a political party is unconstitutional and the
present version of Canon 5A(1)(a) was drawn to comply with Carey. Therefore,
the statement "I am the only Republican candidate for Judge" is permissible, as
14
long as it is true, because the message merely identifies the candidate as a
Republican who is a candidate for judge, albeit the only one. It does not imply
that the candidate is the nominee of the Republican Party, which would be
prohibited.
In contrast, the statement "I am the Conservative Republican candidate
for Judge," transmits the message that the candidate is the formal nominee for
the Republican Party. As discussed above, this is an impermissible depiction
by the candidate of his status in the judicial race; the insertion of the modifier
"Conservative" into the statement does not, in our view, dispel the
disingenuousness of the statement. Under the current state of affairs of
modern American politics, the Republican Party is commonly regarded as
occupying the conservative side of the political spectrum, and so the addition of
the modifier "Conservative" is surplusage, doing nothing to dispel the implied
falsehood that the candidate is running for Kentucky judicial office as the
formal candidate of the Republican Party.
C. Answer to Question 1B: Would a candidate's statement that his
opponent was "the Democrat candidate for Judge" or the "Liberal
Democrat for Judge" violate the Canon?
The statement by a candidate that his opponent is "the Democrat
candidate for Judge" is an impermissible message to the voters. His opponent
is not, in fact, the Democrat candidate for Judge. As previously explained,
such candidates do not exist in Kentucky, and such a campaign message
would therefore amount to a blatant falsehood. See Canon 5B(1)(c) (prohibiting
materially false statements).
15
Similarly, a statement by a candidate that his opponent is "the Liberal
Democrat for Judge" is likewise impermissible. For the identical reasons
discussed above, the modern Democratic Party is widely acknowledged as
falling within the liberal segment of the political spectrum. There is no
meaningful difference between stating that someone is "the Liberal Democrat
for Judge" as opposed to "the Democrat for Judge." Both phrasings imply the
false and misleading message that the opponent is the Democratic Party
nominee for judge.
D. Summary
In summary, judicial candidates may "affiliate," 8 that is "portray"
themselves as members of a political party without restriction; what they may
not do under Canon 5A(1)(b), in tandem with Canon 5B(1)(c), is portray
themselves, either directly or by implication, as the official nominee of a
political party.
V. QUESTION 2 - CANON 5A(1)(B)
The second question concerns Canon 5A(1)(b). This Canon states as
follows:
Canon 5. A judge or judicial candidate shall refrain from
inappropriate political activity.
A. Political Conduct in General
(1) Except as permitted by law, a judge or a candidate for election
to judicial office shall not:
8 Merriam Webster defines "affiliate" as "to closely connect (something or
-
yourself) with or to something (such as a program or organization) as a member or
partner[.1" http://www.merriam-webster.corn/dictionary/affiliate (January 2016).
16
(b) act as a leader or hold any office in a political organization.
A. Answer to Question 2: Canon 5A(1)(b) states that a judge or judicial
candidate shall not "act as a leader or hold any office in a political
organization." What constitutes "act[ing] as a leader or hold[ing]
any office"?
"Holding any office" in a political organization means occupying a formal
position with a recognized title or performing a function within the established
organizational structure of an association whose principal purpose is to further
the election or appointment of candidates to political office. An "office" in such
an organization includes recognized titles such as chairman, director,
secretary, treasurer, press secretary, precinct leader, membership recruiter,
youth coordinator, and the like.
"Acting as a leader" encompasses a less formal but broader range of
participation. Matter of Disciplinary Proceeding Against Blauvelt, 801 P.2d 235,
238 (1990), 9 notes that Webster's Third New International Dictionary 1283
(1986), defines leader, among other ways, as "a person who by force of
example, talents, or qualities of leadership plays a directing role, wields
commanding influence, or has a following in any sphere of activity or thought."
"Acting as a leader," therefore, captures efforts to advance the political agenda
of the party in a less formal way through proactive planning, organizing,
9 Blauvelt addressed a judicial canon substantially identical to Canon 5A(1)(b)
and held that a judge serving as a delegate to political party's county convention was a
"leader" within meaning of the canon's prohibition against a judge acting as a "leader"
in a political organization.
17
directing, and controlling of party functions with the goal of achieving success
for the political party. These less formalized, leader-without-title, positions
would include, for example, acting formally or informally as a party
spokesperson; organizing, managing, or recruiting new members; organizing or
managing campaigns; fundraising; and performing other roles exerting
influence or authority over the rank and file membership albeit without a
formal title, including as further discussed below, hosting political events.
B. Answer to Question 2A: As applied to this case, would hosting
events for a political party violate the Canon?
Consistent with the definition of "acting as a leader," as just discussed,
one who hosts an event for a political party is "acting as a leader" for the party.
Merriam-Webster defines "host" as: "1 a: one that receives or entertains guests
socially, commercially, or officially; b: one that provides facilities for an event or
function . . . ." 1-0 Therefore, someone who provides the facilities for an event of
a political party or officially receives the political party attendees is, indeed,
acting as a "leader" of a political party. The "host" of an event, political or
otherwise, uses the prestige of his or her name to promote the event and exerts
a significant measure of control and authority over the event, more so, in our
view, than the more passive political delegate function in Blauvelt. Perforce, a
judicial candidate hosting a political event acts as a leader of that event and is,
in turn, acting as a leader of the political party on whose behalf the political
event is being held. Under Canon 5A(1)(b) that is prohibited conduct.
10 http://www.merriam-webster.com/dictionary/host (January 2016).
18
VI. QUESTION III - CANON 5B(1)(C)
The final questions posed by the District Court concern the misleading
speech prohibition by a judicial candidate contained in Canon 5B(1)(c). Canon
5B(1)(c) provides, in relevant part, as follows:
B. Campaign Conduct.
(1) A judge or candidate for election to judicial office:
(c) shall not . . . with reckless disregard for the truth, misrepresent
any candidate's identity, qualifications, present position, or make
any other false or misleading statements.
A. Answer to Question 3: Canon 5B(1)(c) states that a judge or judicial
candidate "shall not knowingly, or with reckless disregard for the
truth, misrepresent any candidate's identity, qualifications, present
position, or make any other false or misleading statements." What
constitutes a false statement?
A falser statement is a statement that is not factually true in the normal
sense; that is, an untrue utterance. For example, it would include such
statements as: "I graduated first in my class" when the candidate did not; "I
have won all of my cases as an attorney" when the candidate had not; "I was an
officer in the military" when the candidate was not; or "my opponent was
convicted of a drug offense" when the opponent was not. 12
11 Merriam-Webster defines false as "not real or genuine: not true or accurate;
especially: deliberately untrue: done or said to fool or deceive someone."
http:/ / www.merriam-web sten com/ +dictionary/ false (January 2016) .
12 In United States v. Alvarez, 132 S. Ct. 2537 (2012), the Supreme Court held
that false statements generally are not a category of unprotected speech exempt from
the normal prohibition on content-based restrictions. Id. at 2547 (striking down a
federal statute which prohibited lying about military awards). (Per opinion of Justice
Kennedy, with three Justices concurring and two Justices concurring in the
19
The provision does not, however, cover expressions of opinion because
expressions of an opinion do not implicate a statement that is not factually
true. For example such statements as "Justice Stevens was the best Justice
ever"; "Citizens United was the best decision ever"; or "my opponent is too
liberal" are all expressions of opinion and not subject to Canon 5B(1)(c).
In summary, Canon 5B(1)(c) extends only to statements made during a
campaign which are objectively factually untrue and do not extend to
expressions of subjective opinions or innocuous campaign-trail "puffing" ("I am
the most qualified candidate in the state.").
B. Answer to Question 3A: As applied to this case, would it include a
candidate who asks voters to "re-elect" her to a second term even
though she was appointed to her first term?
The prefix "re" affixed to a verb implies that the action described in the
verb has occurred on a previous occasion. 13 For example, if a television
network announces that it will rerun a particular program, it has implicitly but
definitively asserted that the program had been run on a prior occasion; it is
implied that a soldier who re-enlists in the army had enlisted in the military on
a prior occasion; and something can be reasserted only if it has previously
been asserted.
judgment). However, the Court pointedly exempted from the scope of the decision
laws aimed at "maintain[ing] the general good repute and dignity of . . . government . .
. service itself." Id. at 2546 (citing United States v. Lepowitch, 318 U.S. 702, 704, 63 S.
Ct. 914, 87 L.Ed. 1091 (1943)). Because the canons we address fall squarely within
this exception, we are persuaded that Alvarez does not apply here.
13 See generally http://www.merriam-webster.com/dictionary/re (January
2016).
20
Given this universally accepted convention of the English language, a
candidate's request for voters to re elect her to a judicial office is an affirmative
-
assertion that she had been elected by voters to the same office on a prior
occasion. A judge who holds her office by way of a gubernatorial appointment
cannot honestly claim that she was elected to the office, and if she seeks to
retain the office at the next election, she cannot honestly assert that she seeks
to be re elected. Such an assertion would be a materially false statement,
-
deceptive to the public, and would run afoul of Canon 5B(1)(c).
The opponents of the canon cite to various court decisions and news
articles where the term "re-elect" was used to describe a judge who was seeking
to retain an office attained by appointment rather than election. Using the
term in news articles and other narratives to chronicle historic events is an
informal and idiomatic phrasing, but it is nonetheless inaccurate.
In contrast, when an incumbent judge uses the word "re-elect" as
campaign stratagem to persuade the public that she acquired the office by the
popular vote of the people rather than as the appointee of a governor, its use is
calculated to mislead and deceive the voters. Accordingly, we distinguish these
informal, idiomatic usages and regard these journalistic references as
irrelevant to our review.
VII. CONSTITUTIONAL REVIEW
The closing step to interpreting a statute or other legal authority, such as
the canons interpreted herein, is undertaking a final examination to ascertain
that our interpretation complies with any existing constitutional mandates. We
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have undertaken that review and are satisfied that our interpretations as
expressed above fall well within the requirements of White, Carey, Williams-
Yulee, and other applicable First Amendment authorities.
Nevertheless, we are attentive that in its Injunction Order, the District
Court expressed its skepticism regarding the constitutionality of each of the
canons under review. In response to that skepticism, we emphasize that we
are persuaded that Williams-Yulee resolves the District Court's criticism in
favor of the interpretations expressed herein. For example, the District Court
criticizes our campaign limitation, expressed in Canon 5A(1)(a), as being
underinclusive 14 because it fails to address the practical reality that, in lieu of
the candidate directly portraying himself as the favored candidate of a political
party, his supporters and surrogates may undertake that same function. The
District Court is correct; we do not purport to limit the campaign conduct of
supporters and surrogates. But the Court's criticism ignores the fact that the
compelling interest served by our canon is to insulate the judge personally from
behaviors that directly undermine the impartiality and objectivity of the
Kentucky Court of Justice. That others outside the judiciary may pursue these
political objectives on behalf of the judge or judicial candidate does not in any
way diminish our objective. If anything, it is a factor that favors the
constitutionality of our canon by emphasizing its limited impact on political
14"[U]nderindusiveness can raise 'doubts about whether the government is in
fact pursuing the interest it invokes, rather than disfavoring a particular speaker or
viewpoint.' Williams Yulee, 135 S. Ct. at 1668.
-
22
discourse. The objective is not to keep information hidden from the public; the
objective is to keep the judge from compromising his or her integrity and
impartiality by engaging in deceptive and misleading conduct.
Williams-Yulee presented a very similar situation. While the Florida rules
prohibited a judge from personally soliciting funds, responsible representatives
were permitted to do so on her behalf. Against the underinclusiveness
argument, the United States Supreme Court noted: "A State need not address
all aspects of a problem in one fell swoop; policymakers may focus on their
most pressing concerns. We have accordingly upheld laws—even under strict
scrutiny—that conceivably could have restricted even greater amounts of
speech in service of their stated interests." 135 S. Ct. at 1668. By the same
force of reasoning, our Canon 5A(1)(a) is not underinclusive; 15 nor are the other
judicial canons we have discussed.
The District Court likewise criticizes our canons as overbroad in that
they may be construed to extend beyond the range of prohibitable speech and
reach non-prohibitable speech. 16 In drafting our canons, we strived to avoid
overbreadth and the clarifications expressed herein should obviate that
concern. In any event, Williams-Yulee addressed the same point and the same
15 And further, of course we have no jurisdiction over the judicial candidate's
supporters and surrogates; however that does not mean we are powerless over those
whom we do have jurisdiction from misleading the public into believing that they are
the officially sanctioned nominee of a political party.
16 The overbreadth doctrine "is predicated on the danger that an overly broad
statute, if left in place, may cause persons whose expression is constitutionally
protected to refrain from exercising their rights for fear of criminal sanctions."
Massachusetts v. Oakes, 491 U.S. 576, 581 (1989).
23
compelling interests were at stake. There, the Supreme Court observed that
"The First Amendment requires that [the personal solicitation canon] be
narrowly tailored, not that it be 'perfectly tailored.' The impossibility of perfect
tailoring is especially apparent when the State's compelling interest is as
intangible as public confidence in the integrity of the judiciary." 135 S. Ct. at
1671 (citation omitted). The same principle applies in this situation as we
strive to protect the democratic ideal of citizens choosing their judges and, at
the same time, preserve the neutrality of the judicial branch by insulating
judges from detrimental influences of partisan politics. Perhaps we have not
achieved the ideal-but-elusive "perfect tailoring," but nevertheless our tailoring
comports with the standard prescribed in Williams-Yulee.
The District Court also suggests in its Injunction Order that the canons
at issue are unconstitutionally vague; 17 however, as we discuss herein, a plain,
ordinary, and common sense application of the language of the canons gives
accurate guidance to a judicial candidate of what he may or may not do in a
political campaign: he may not campaign as the nominee of a political party; he
may not act as an office holder or leader, in the traditional sense of those
terms, of a political party and he may not lie to the public on the campaign
trail, although he is free to otherwise express his opinion on matters relating to
himself, his opponent, and matters of public interest. It bears emphasis as
17 "[The void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983).
24
well that Kentucky's Judicial Conduct Commission maintains an ethics
advisory structure which is available to judicial candidates seeking specific
advice or guidance on campaign matters.
VIII. CONCLUSION
The law as set forth above is hereby certified to the United States District
Court for the Eastern District of Kentucky.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller, and Venters, JJ.,
concur. Noble, J., concurs in part and dissents in part by separate opinion in
which Wright, J., joins.
NOBLE, J., CONCURRING IN PART AND DISSENTING IN PART: I concur
with Justice Venters' excellent analysis on all the issues in this case except for
his answer to question IA, as to whether the statement "I am the only
Republican candidate for judge" is permissible. I do not think it is. In the same
discussion, he concludes that it is NOT permissible to say, "I am the
conservative Republican candidate for judge." Both the term "only" and the
term "conservative" are modifiers and immediately precede the phrase
"Republican candidate." Thus, whatever the modifier may be, both sentences
are discussing "the...Republican candidate." As the majority explains,
Republicans (Democrats) do not have a party candidate in non-partisan judicial
elections, and saying that one is "the Republican candidate" is inappropriate
and misleading. I can make no distinction between the two sentences at issue,
and thus would find that neither is permissible. Our Constitution requires that
judicial candidates be non-partisan candidates, and declaring oneself to be any
25
kind of Republican (or Democratic) candidate adds partisanship to the actual
candidacy, rather than stating in which political party one has membership.
Wright, J., joins.
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COUNSEL FOR CAMERON BLAU:
Jack Scott Gatlin
Freund, Freeze, and Arnold
Christopher D. Wiest
Chris Wiest, Attorney at Law, PLLC
COUNSEL FOR ALLISON JONES:
Lucinda C. Shirooni
Thomas B Bruns
Jack Scott Gatlin
Freund, Freeze & Arnold
COUNSEL FOR HON. STEVEN D. WOLNITZEK, IN HIS OFFICIAL CAPACITY AS
CHAIR, JUDICIAL CONDUCT COMMISSION:
Jeffrey C. Mando
Louis Kelly
Adams, Stepner, Woltermann & Dusing, PLLC
Mark Richard Overstreet
Bethany A. Breetz
Stites & Harbison, PLLC
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