The Seventh Circuit weighed in last week on three common judicial ethics rules governing campaigns.  Readers may recall that the Seventh Circuit is not shy about shaking things up in this area.  [See Buckley v. Ill. Jud. Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (striking down announce clause well before White came along).]  To misappropriate Monroe Freedman’s famous term from another context, this new opinion is the latest in the growing “trilemma” of reconciling the First Amendment, Judicial Elections, and Impartiality (including its due process element).  The rules at issue this time around had prohibited three campaign practices: (1) joining a party; (2) endorsing partisan candidates; and (3) directly soliciting campaign contributions.  According to the court, this is how each rule fares, respectively: (1) unconstitutional; (2) constitutional; and (3) constitutional.  The full opinion, with dissent, can be found here (Siefert v. Alexander).  Readers may recall that the district court in early 2009 struck down all three prohibitions under First Amendment strict scrutiny analysis. 

The federal courts are steadily (and somewhat condescendingly) chipping away at the restrictions on campaign and political activity state courts believed were necessary to protect the impartiality of an elected judiciary. (For the most recent example, see Siefert v. Alexander, Opinion and Order (U.S. District Court for the Western District of Wisconsin Feb. 17, 2009), permanently enjoining enforcement of three clauses in the Wisconsin code of judicial conduct: the personal solicitation clause, the prohibition on endorsing a partisan candidate, and the prohibition on joining a political party). Therefore, it is crucial that state courts adopt a rule prohibiting a judge from using “court staff, facilities, or other court resources in a campaign for judicial office,” which was adopted by the American Bar Association in 2007 as Rule 4.1(A)(10) of the Model Code of Judicial Conduct. Whatever the First Amendment rights of judges and judicial candidates to solicit campaign contributions, answer questionnaires, and endorse other candidates, there is no conceivable grounds for arguing that judges have a First Amendment right to appropriate for personal political purposes the public resources that should be dedicated to the administration of justice.

Even without a specific rule, the exploitation of the courthouse and court staff for campaigning by judges is impliedly and inherently in the general provisions of the code. For example, in December, the New York State Commission on Judicial Conduct censured a judge who personally solicited support for her candidacy for another court from two attorneys who were in the courthouse and about to appear before her; the Commission found a violation of the general rule requiring a judge to “act in a manner consistent with the impartiality, integrity and independence of the judiciary.” In the Matter of Yacknin, Determination (New York State Commission on Judicial Conduct Dec. 29, 2008).

But adopting an express rule eliminates any question whether such conduct can be sanctioned (see the baffling dissent in Yacknin), ensures that judges are aware of the restriction, and emphasizes the importance of keeping politics out of the courthouse literally as a way of keeping politics from appearing to influence judicial decisions.

So far, Indiana, Kansas, and Montana have adopted Rule 4.1(A)(10), with Indiana wisely adding that it applies to “any political purpose” as well as to campaigning. Other states should follow those states’ lead even if they do not adopt entirely new codes at this time. Minnesota adopted a version that states judges cannot “use court staff, facilities, or other court resources in a campaign for judicial office in a manner prohibited by state law or Judicial Branch personnel policies.” Let’s hope that the law and personnel policies in Minnesota are strict and well-known by judges. The Ohio Supreme Court did not adopt the rule when it adopted a new code; let’s hope provisions in other Ohio laws or rules already cover the issue, but it would have been prudent to refer to those standards sin the code as well.

Judicial campaign fund-raising was one of the major judicial conduct stories in 2008, as it has been in the past and no doubt will be in the future. Campaign contribution and spending records were set in state supreme court races in 2008. In Caperton v. Massey, the United States Supreme Court decided to take a case raising the issue whether $3 million spent by a company’s CEO in support of a supreme court justice’s campaign presents due process considerations when that company appeals a $50 million verdict to the court. The case prompted the filing of nine amicus briefs in support of the petitioner, most representing the position of several individuals or organizations, and five in support of the respondent (see www.brennancenter.org/content/resource/caperton_v_massey).  Oral argument is scheduled for March 3, 2009.

Personal solicitation of campaign contributions led to judicial discipline in 2008, with a modern twist to some of the violations. A videotape on YouTube.com showed judicial candidate Willie Singletary telling riders at a motorcycle rally, after offering a blessing for the riders and their bikes, “There’s going to be a basket going around because I’m running for Traffic Court Judge, right, and I need some money. I got some stuff that I got to do, but if you all can give me $20 you’re going to need me in Traffic Court, am I right about that?” The judge further stated, “Now you all want me to get there, you’re all going to need my hook-up right?” He was elected, and the Pennsylvania Court of Judicial Discipline publicly reprimanded him for personally soliciting and accepting campaign funds, conduct “so extreme as to bring the judicial office into disrepute,” and violating the requirement that a judicial candidate maintain the dignity appropriate to judicial office. In re Singletary, Opinion (December 1, 2008), Order (January 23, 2009) (www.cjdpa.org/decisions/jd08-01.html).

The Kansas Commission on Judicial Qualifications ordered a judicial candidate to cease and desist from publicly soliciting campaign contributions after receiving multiple complaints that he had sent attorneys a cell phone text message that stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!” Inquiry Concerning Davis, Order (July 18, 2008). The Commission found that the candidate personally solicited campaign contributions and that the intimidating nature of the text message violated Canon 1. The candidate accepted the order.

Later in 2008, however, in a challenge filed by a sitting judge, the U.S. District Court for the District of Kansas held that the clause prohibiting judicial candidates from personally soliciting campaign contributions was unconstitutional. Yost v. Stout (November 16, 2008). That same conclusion was also reached by the U.S. District Court for the Eastern District of Kentucky in 2008 (Carey v. Wolnitzek, Opinion and order (October 15, 2008)) and the U.S. District Court for the Western District of Wisconsin in February 2009 (Siefert v. Alexander, Opinion and Order (February 17, 2009)). The Kansas court found that allowing solicitation “by a campaign committee does not assure that the candidate is unaffected or even unaware of who does and does not contribute to the campaign.” The court also stated that “garner[ing] public support and campaign contributions does not, in itself, suggest that candidates will be partial to their endorsers or contributors once elected” and “the recusal canon is narrowly tailored to cure any impartiality that may result from a candidate personally soliciting contributions.” The Kentucky court concluded that, “while it may be less difficult for a solicitee to decline a request for a contribution when the request is made by a committee, ‘the state does not have a compelling interest in simply making it more comfortable for solicitees to decline to contribute to judicial campaigns.’”

In February 2009, the U.S. District Court for the District of Minnesota upheld the Minnesota version of the solicitation clause because it allows a judicial candidate to personally solicit campaign contributions when speaking to groups of more than 20 persons or by signing a letter and requires a candidate to “take reasonable measures to ensure that the names and responses, or lack thereof, of those solicited will not be disclosed to the candidate . . . .” Wersal v. Sexton (February 4, 2009). The court rejected the plaintiff’s argument that the clause is unconstitutional because recusal is a less restrictive means of preventing bias, noting “the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be an effective method of preventing bias and ensuring justice.”