This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.
Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
Canon 5A(1)(1) of the 1990 model code and Rule 4.1(A)(3) of the 2007 model code prohibit a judge or a judicial candidate from publicly endorsing or, except for the judge or candidate’s opponent, publicly opposing another candidate for public office.
The 7th Circuit (in a case from Wisconsin), the 8th Circuit (sitting en banc in a case from Minnesota), the 9th Circuit (sitting en banc in a case from Arizona), and a federal district courts in a cases from Kansas) have upheld the endorsement clause. State supreme courts in New York and New Mexico have upheld the endorsement clause when challenged in a judicial discipline proceeding.
In Siefert [v. Alexander, 608 F.3d 974, petition for re-hearing en banc denied, 619 F.3d 776 (7th Circuit 2010), petition for certiorari denied, 131 S. Ct. 2872 (2011), the 7th Circuit upheld the endorsement ban in the Wisconsin code, applying, not strict scrutiny, but a test that balanced the value of the rule against the value of the communication. The Court noted that the state’s due process interest in the endorsement regulation was a weighty one. The 7th Circuit concluded that “an endorsement is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker . . . .” The Court noted that, under strict scrutiny, the rule’s failure to prohibit endorsements in partisan elections could be fatal to the rule’s constitutionality.
In Wersal v. Sexton, 674 F.3d 1010 (8th Circuit), cert. denied, 133 S. Ct. 209 (2012), the 8th Circuit held that the endorsement clause in Minnesota “targets precisely that speech which most likely implicates” the state’s compelling interests of preserving impartiality and avoiding the appearance of impropriety by restricting “speech for or against particular parties, rather than for or against particular issues,” while allowing candidates to convey necessary information concerning their qualifications. 2 concurring judges argued that the endorsement clause was constitutional “based on a different compelling state interest than the impartiality interest(s) on which the majority relies, namely, Minnesota’s asserted interest in protecting the political independence of its judiciary.”
In Wolfson [v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), certiorari filed (http://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-9.htm)%5D, the 9th Circuit, sitting en banc, upheld clauses in the Arizona code of judicial conduct prohibiting judicial candidates from making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate for any public office, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, or actively taking part in any political campaign other than his or her own campaign for election, reelection, or retention in office. The Court stated “Williams-Yulee may have been about a prohibition on direct candidate solicitations of campaign contributions, but the Supreme Court’s reasoning was broad enough to encompass underinclusivity arguments aimed at other types of judicial candidate speech prohibitions such as Arizona’s Endorsement Clauses and its Campaign Prohibition.”
In Yost v. Stout, 2008 U.S. Dist. LEXIS 107557 (Kansas 2008), appeal dismissed, 607 F.3d 1239 (10th Circuit 2010), the federal district court in Kansas held:
When a case arises in front of a judge who has endorsed one of the parties for public office, there is at least an appearance that the endorsed party is more likely to win based on favoritism toward that party. The endorsement clause is narrowly tailored to eliminate that scenario.
In Winter v. Wolnitzek, 2016 U.S. Dist. LEXIS 64044 (Eastern District of Kentucky 2016), the federal district court in Kentucky upheld the canon against a constitutional challenge, explaining that because “Kentucky has a compelling interest in preventing judges and judicial candidates from being part of a partisan political machine” and “a judge who trades endorsements might well become part of that machine,” “allowing endorsements would frustrate the state’s interest and thus forbidding endorsements is the ‘least restrictive means’ to further that interest.”
In a judicial discipline case, the New Mexico Supreme Court rejected a judge’s argument that his endorsement of a mayor’s re-election and authorization of the use of his name in an ad in the local newspaper was constitutionally protected speech. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007) (public reprimand). Applying a strict scrutiny test, the Court concluded that the endorsement clause “is intended to promote what we believe is an undeniable compelling state interest in promoting the reality and appearance of impartiality of our judiciary, which in this case means eliminating the potential for bias or the appearance of bias or against the parties appearing before a judge.” Under the facts of the case, the Court stated, the judge’s endorsement of the mayor “would certainly create the appearance of bias were the mayor or anyone associated with his administration to appear before respondent in an actual case.” The court stated that the endorsement clause was carefully and narrowly designed to alleviate the concern that a judge could be perceived as being beholden to a particular political leader or party and promotes “the State’s compelling interest in preventing political bias or corruption, or the appearance of political bias or corruption, in its judiciary.” The court rejected the judge’s argument that the code was under-inclusive because it allowed monetary contributions to a political organization, stating a contribution “should not be likened to the high-profile show of support that is embodied in a public endorsement published in a newspaper.”
It is the public pronouncement of support that most offends our notions of impartiality. A private promise of support to a candidate, like a private contribution of money, creates less of a perception of partiality. A public endorsement, like an advertised monetary contribution, hits closest to the mark. Our Code of Judicial Conduct aims only at public conduct that creates the highest degree of risk.
In short, taken as a whole, our Code of Judicial Conduct, which includes the endorsement clause at issue in this case, is carefully and narrowly drawn to serve the compelling state interest in a judiciary that is impartial in fact and in appearance.
The New York Court of Appeals also rejected a constitutional challenge in the endorsement clause as well as other clauses in the code of judicial conduct in a judicial discipline case. In the Matter of Raab, 793 N.E.2d 1287 (New York 2003) (censure for, in addition to other misconduct, appearing at the party’s “phone bank” for a candidate for the county legislature and making phone calls on behalf of the candidate).