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)
In Bauer, the 7th Circuit, in a case from Indiana, rejected challenges to restrictions on judges and judicial candidates holding leadership roles in political parties and making speeches on behalf of political organizations. Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011). [The challenged rules in the Indiana code prohibited a judge or judicial candidate from acting ‘as a leader in or hold an office in a political organization” and making “speeches on behalf of a political organization.”] The court relied on U.S. Supreme Court cases (for example, Civil Service Commission v. Letter Carriers) holding that federal and state limitations on political conduct by employees are compatible with the First Amendment and concluded that similar limitations for judges are valid, for three principal reasons.
First, judges no less than FBI agents must be seen as impartial if judicial decisions are to be accepted by the public, and participation in politics undermines the appearance of impartiality; second, judges are not entitled to lend the prestige of office (which after all belongs to the people, not to the temporary occupant) to some other goal; third, states have a compelling interest in “preventing judges from becoming party bosses or power-brokers,” something that would undermine actual impartiality, as well as its appearance.. . .
The Court concluded: “When a state requires judges to stand for office, it cannot insist that candidates remain silent about why they rather than someone else should be elected. That’s the holding of White I. But the rationale of Letter Carriers remains, and is not undercut by White I, for political races other than the judge’s own.”
In Wolfson,35 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 Winter,36 the 6th Circuit held unconstitutional prohibitions on a judge or a judicial candidate making speeches “for or against a political organization” but rejected a constitutional challenge to the prohibitions on a judge or judicial candidate paying an assessment or making a contribution to a political organization or candidate and acting as a leader or holding an office in a political organization. With respect to the speeches restriction, the Court concluded was simultaneously too narrow and too broad.
In one sense, the speeches clause “does too little to advance the State’s interest in impartiality and the avoidance of partisan influence.” Kentucky allows “a judicial candidate [to] identify himself to the public as a member of a political party” in many ways. The candidate may tell any audience, no matter how big, that he is a Republican or a Democrat. He may give a speech for any political interest group, from the National Rifle Association to Planned Parenthood. And he may email, tweet, write, or say in an interview that he is for a political party. Banning him from giving a speech to the same effect creates serious under-inclusivity problems.
In another sense, the clause “suppresses too much speech to advance the government’s interest.” By banning speech functionally identical to the speech permitted by Carey — that he supports a particular party, — the clause suffers from debilitating over-inclusivity problems. Both problems establish a fit defect and preclude the canon from running the gauntlet of strict scrutiny.
However, the Court held that the prohibitions on contributing to a political organization or candidate and publicly endorsing or opposing a candidate for public office narrowly serve “the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”
Similarly, with respect to the prohibition on a judge acting as a leader or holding any office in a political organization, the Court concluded, a “judge who heads up a political party entrenches, rather than diminishes, political parties in judicial selection. Whether the candidate wishes to act as a leader of a political organization or hold office in a political organization, she cannot do so without directly undermining Kentucky’s legitimate policy choice to hold nonpartisan elections for judges.”
In a judicial discipline case, rejecting the judge’s arguments that the code restrictions were unconstitutional, the Maine Supreme Judicial Court found that a probate judge had violated the code of judicial conduct by soliciting contributions for a political organization or candidate and running for the state senate without resigning his judicial position and but imposed no discipline. In re Dunleavy, 838 A.2d 338 (Maine 2003). Applying strict scrutiny to the solicitation ban, the Court concluded that the state had a compelling interest in preserving the appearance of, and the impartiality of, the state judiciary and that the canon is narrowly tailored to meet that interest because it applies only to conduct that presents the greatest risk to that interest by prohibiting sitting judges, as opposed to judicial candidates, from soliciting support for political candidates and political organizations and from purchasing tickets to political dinners or functions. The Court held: “It is exactly this activity that potentially creates a bias, or at least the appearance of bias, for or against a party to a proceeding. If a contribution is made, a judge might subsequently be accused of favoring the contributor in court. If a contribution is declined, a judge might be accused of punishing a contributor in court.”
In a judicial discipline case, the New York Court of Appeals also rejected a constitutional challenge to several clauses restricting political activity. 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). The Court emphasized that “not only must the State respect the First Amendment rights of judicial candidates and voters but also it must simultaneously ensure that the judicial system is fair and impartial for all litigants, free of the taint of political bias or corruption, or even the appearance of such bias or corruption.” Concluding that the “rules at issue, when viewed in their totality, are narrowly drawn to achieve these goals,” the Court stated, “critically, the rules distinguish between conduct integral to a judicial candidate’s own campaign and activity in support of other candidates or party objectives.” Under the rules, judicial candidates may participate in their own campaigns during the “window period,” beginning nine months before the primary election or nominating convention, including contributing to their campaigns, attending political gatherings and speaking in support of their own campaigns, appearing in media advertisements and distributing promotional campaign materials, and purchasing two tickets to and attending politically sponsored dinners and functions.” In contrast, the Court noted, “the rules restrict ancillary political activity, such as participating in other candidates’ campaigns (beyond appearing on a party’s slate of candidates), publicly endorsing other candidates or publicly opposing any candidate other than an opponent for judicial office, making speeches on behalf of political organizations or other candidates, or making contributions to political organizations that support other candidates or general party objectives.” The Court concluded:
The provisions allowing judicial candidates to engage in significant political activity in support of their own campaigns provide candidates a meaningful and realistic opportunity to fulfill their assigned role in the electoral process. Unlike other elected officials, however, judges do not serve particular constituencies but are sworn to apply the law impartially to any litigant appearing before the court. Once elected to the bench, a judge’s role is significantly different from others who take part in the political process and, for this reason, conduct that would be appropriate in other types of campaigns is inappropriate in judicial elections. Precisely because the State has chosen election as one means of selecting judges, there is a heightened risk that the public, including litigants and the bar, might perceive judges as beholden to a particular political leader or party after they assume judicial duties. The political activity rules are carefully designed to alleviate this concern by limiting the degree of involvement of judicial candidates in political activities during the critical time frame when the public’s attention is focused on their activities, without unduly burdening the candidates’ ability to participate in their own campaigns.
After the decision in Williams-Yulee, rejecting constitutional arguments raised by dissenting members, the New York State Commission on Judicial Conduct publicly admonished 2 part-time judges for improper contributions to national or local political organizations and candidates, directly and indirectly through their law firms, and, in 1 case, indirectly through his wife. In the Matter of Sakowski, Determination (New York State Commission on Judicial Conduct August 20, 2015)