The Judicial Ethics Forum (JEF)

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct.  Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics.  (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indiana upheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee.  Bauer v. Shepard, Opinion and Order (July 7, 2009).  The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications.  Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices:  “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . .  For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”:  “Courts, in our system, elaborate principles of law in the course of resolving disputes.  The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments.  The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity.  Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).