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Summaries of Relevant Cases Decided Since Republican Party of Minnesota v. White

Published: December 1, 2007

In the Matter of William A. Vincent, Jr. 172 P.3d 605 (N.M. Nov 9, 2007). New Mexico Supreme Court upheld New Mexico's Code of Judicial Conduct "endorsement clause" prohibition against the public endorsement of a political candidate by a judge.  The court found that the endorsement clause was narrowly tailored to serve the compelling state interest of promoting impartiality and the appearance of impartiality.

Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir. May 25, 2007).
A non-profit organization filed action for declaratory and injunctive relief against members of the Pennsylvania Judicial Conduct Board and the Pennsylvania Disciplinary Counsel, alleging judicial canons and rules restricting judicial candidate speech impermissibly chilled constitutionally protected speech in violation of the First Amendment. The United States District Court for the Middle District of Pennsylvania dismissed action without prejudice. Organization appealed. The Court of Appeals held that the organization failed to establish the presence of a willing speaker, as was required to have standing under Article III.

Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (en banc), cert. denied, 126 S. Ct. 1165 (2006). On remand from the Supreme Court in White, a federal appeals court struck down Minnesota’s political activities canons, which prohibited judges and judicial candidates from engaging in partisan political activity but permitted them to speak at non-political party gatherings. The court also held that the state’s solicitation clause, which prohibited judges and judicial candidates from personally soliciting campaign contributions (but allowed campaign committees to do so on behalf of the candidates), was unconstitutional to the extent that it prohibited candidates from signing solicitation letters and making campaign appeals before large groups. 
Opinion - Brennan Center Litigation Page

Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65 (2d Cir. 2003), cert. denied, 541 U.S. 1085 (2004). A federal appeals court held that federal courts should abstain from hearing a constitutional challenge to the canons by a judge who was the subject of an imminent disciplinary proceeding; instead, the judge must raise his constitutional claims in the disciplinary process itself. Opinion - Brennan Center Litigation Page

Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).  A judicial candidate challenged Canon 7(b)(1)(d) of the Georgia Code of Judicial Conduct, which prohibits candidates for judicial office from making false or misleading statements in their campaigns, including false statements negligently made and true statements that are misleading or deceptive.  The Eleventh Circuit relied on Brown v. Hartlage, 456 U.S. 45, 601-61 (1982) in holding that restrictions on candidate political speech during elections-judicial and other elections alike-must be subject to an actual malice standard.  The court also held that the solicitation clause of Canon 7(B)(2) was not narrowly tailored to meet the state’s impartiality concerns.

Pennsylvania Family Institute, Inc. v. Celluci 2007 WL 3010523 (E.D.Pa.,2007 Oct 16, 2007). District court for the Eastern district of Pennsylvania held that Pennsylvania's "pledges and promises" clause and "commits" clause were constitutional.  The court adopted a narrow construction of the clause that held that any speech by a judicial candidate, short of a pledge, promise, or commitment to adjudicate a particular result, would be speech permitted by the canon, and thus candidates could respond to questionnaires without fear of discipline. The court held that this narrowly construed clause met the states compelling interest in preserving an open-minded judiciary and in protecting the due process rights of future litigants.

Pennsylvania Family Institute, Inc. v. Celluci, 2007 WL 1437480 (E.D. Pennsylvania May 14, 2007). Entering a preliminary injunction, a federal court enjoined enforcement of the provisions of the Pennsylvania code of judicial conduct prohibiting judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” and making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” The plaintiffs were judicial candidates and organizations that sent out questionnaires.

Duwe v. Alexander, 2007 WL 1560311 (W.D. Wisconsin May 29, 2007).  District Judge John C. Shabaz of the Western District of Wisconsin enjoined enforcement of the provision of Wisconsin’s Code of Judicial Conduct which required judges to recuse themselves if they had, while a judge or candidate for judicial office, previously made statements that “appear[ed] to commit” the judge with respect to an issue in a proceeding.  The court found the provision facially unconstitutional on grounds of vagueness and overbreadth. 

The court also issued found that a provision of the Wisconsin Code that prohibited candidates from announcing their views on disputed legal issues in responses to judicial questionnaires was unconstitutional as applied to candidates who, based on the provision, refused to respond to a questionnaire.  Wisconsin Right to Life had distributed questionnaires to candidates in the November 2006 and April 2007 elections and several candidates refused to answer the questionnaires, citing the Code.  The court held that responses to the questionnaires are announcements constituting speech protected by the First Amendment.

Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. (Ind.) Oct 26, 2007). The 7th Circuit reversed the district court's holding that the Indiana's Pledges or Promises and Commit Clauses were unconstitutional and remanded the case for dismissal due to Indiana Right to Life's lack of standing.  The court held that Indiana Right to Life was unable to produce any evidence that there were otherwise willing speakers who are constrained by the Judicial Code.

Ind. Right to Life, Inc. v. Shepard, No. 4:04-cv-00071, 2006 WL 3314565 (N.D. Ind. Nov. 14, 2006), appeal docketed, No. 06-4333 (7th Cir. Dec. 22, 2006).  The federal district court held that Indiana’s Pledges or Promises and Commit Clauses violate the First Amendment because they forbid the same types of speech as the Announce Clause struck down in White. The court upheld the state’s recusal rules, finding that they are narrowly tailored to serve the compelling state interest in judicial impartiality. 

Wolfson v. Brammer, No. 3:06-cv-02357, slip op. (D. Ariz. Nov. 3, 2006).  Wolfson, a candidate for judicial office in Arizona, requested injunctive relief barring enforcement of several Arizona canons, including those on announcing views on disputed legal issues, soliciting funds directly from supporters, participating in the campaigns of others, and supporting candidates and ballot initiatives.  The district court held that Wolfson had not demonstrated irreparable harm or relative hardship in his campaign as required for a preliminary injunction.  The court noted that the Arizona Supreme Court Judicial Ethics Advisory Committee had ruled that Wolfson could announce his views on a state ballot initiative on same-sex marriage and that White applied only to announce clauses, not Pledges or Promises clauses.

Carey v. Wolnitzek, No. 3:06-cv-00036, 2006 WL 2916814 (E.D. Ky. Oct. 10, 2006).  A judicial candidate who sought to send a questionnaire to other candidates and to post his own answers on his web site challenged several of Kentucky’s canons.  The federal district court granted a preliminary injunction against the enforcement of Kentucky’s solicitation of donations and partisan identification clauses as being insufficiently tailored to the interests of judicial impartiality and avoidance of the appearance of corruption.

Fla. Family Policy Council v. Freeman, No. 4:06-cv-00395, slip op. (N.D. Fla. Oct. 10, 2006).  An organization seeking to distribute a questionnaire to judicial candidates challenged Florida’s Commit Clause, which requires recusal if a candidate makes a statement that commits or appears to commit the judge with respect to parties, issues, or controversies.  The district court refused to issue a preliminary injunction, holding that the commit clause did not burden First Amendment rights because it applied only to “pledge[s] or promise[s of] rulings” the candidate would “make on specific issues.”

Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006), appeal docketed, No. 06-3290 (10th Cir. Aug. 17, 2006).  The federal district court granted a preliminary injunction against the enforcement of Kansas’s Pledges or Promises and Commit Clauses as being inconsistent with White; held that a canon prohibiting judges from directly soliciting campaign contributions was not narrowly tailored to the state’s interest in judicial impartiality; and upheld the state’s recusal rules.  The Brennan Center is among several groups that have filed amicus briefs in the Tenth Circuit urging reversal. 

Alaska Right to Life Political Action Committee v. Feldman 504 F.3d 840 (9th Cir. (Alaska) Sep 21, 2007) The 9th Circuit vacated the district court's order granting summary judgment and the judgment striking down Alaska's Pledges or Promises and Commit Clauses on the grounds that a pre-enforcement challenge to the judicial canons was unfit for review under the ripeness doctrine.

Alaska Right to Life Political Action Comm. v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005). A political action committee challenged canons that prevented judicial candidates from responding to questionnaires or surveys regarding their views. Relying on North Dakota Family Alliance, Inc. v. Bader, below, a federal district court struck down Alaska’s Pledges or Promises and Commit Clauses and upheld its recusal provisions. Opinion

North Dakota Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005). An organization that publishes information about judicial candidates and their views challenged several provisions of North Dakota’s canons after several candidates refused to answer questions on questionnaires the organization circulated. The federal district court held that the state’s Pledges or Promises and Commit Clauses violate the First Amendment because they forbid the same types of speech as the Announce Clause struck down in White. The court upheld the state’s recusal rules, finding that they are narrowly tailored to serve the compelling state interest in judicial impartiality. 
Opinion

O'Neil v. Coughlan 2008 WL 80553 (6th Cir. (Ohio) 2008). 6th Circuit vacated the district court's order striking down Ohio's judicial canons on the grounds of Younger abstention. The court held that the Defendant had not waived the argument Younger abstention, and that under the authority of Younger the district court erred in deciding on the merits of the case.

O’Neill v. Coughlan, No. 1:04-cv-01612, slip op. (N.D. Ohio Sept. 14, 2004).  A judicial candidate sought injunction against enforcement of certain Ohio canons regarding his campaign advertising, which advanced the theme “money and judges don’t mix.” The court granted the injunction, holding that Canon 7(B)(3)(b) prohibiting the announcement of party affiliation after the date of a party primary is not narrowly tailored to the state interest of judicial impartiality; the state did not have a compelling interest in requiring judicial candidates to refrain from calling themselves “Judge” in their campaign literature without immediately indicating the court on which the judge currently serves under Canon 7(D)(2); and that Canon 7(B)(1) was overbroad and not substantiated by a compelling governmental interest, as applied to a charge that the candidate could not ethically suggest that other judges had not conducted themselves with dignity. 

Family Trust Found. of Ky. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).  An organization seeking to distribute a questionnaire to judicial candidates challenged several of Kentucky’s canons.  The district court enjoined enforcement of the Pledges or Promises and Commit Clauses as overbroad and insufficiently tailored to the interest of impartiality, but refused to enjoin Kentucky’s recusal clause.

Smith v. Phillips, No. A-02-CV 111, 2002 WL 1870038 (W.D. Tex. Aug. 6, 2002).  Canon 5(1) of the Texas Code of Judicial Conduct prohibited candidates from making “statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which is being sought.” The court, finding no difference between Canon 5(1) and White, declared Canon 5(1) unconstitutional. 

In re Bell, 2007 WL 612141 (So. 2d March 1, 2007). Three judicial candidates filed an action seeking a temporary restraining order to prevent a fourth candidate from making allegedly false and misleading statements in the course of his campaign. The Chancery Court, Hinds County, issued the TRO. The candidate filed an emergency appeal.
In vacating the TRO, the Mississippi Supreme Court , en banc, held that:
(1) the candidate’s alleged conduct in making false and misleading statements did not fall within the Chancery Court’s equitable jurisdiction, such that it was without power to issue the TRO;
(2) the complaint claiming that candidate violated the Code of Judicial Conduct did not present a cognizable cause of action; and
(3) the Chancery Court had no power to adjudicate a claim that had as its only remedy a criminal action for perjury.

Simes v. Ark. Judicial Discipline & Disability Comm’n, No. 06-725, 2007 WL 184801 (Ark. Jan. 25, 2007).  A judge challenged the constitutionality of Arkansas Judicial Canon 5C(2), which forbids judges from soliciting campaign contributions except through campaign committees, after the Arkansas Judicial Discipline and Disability Commission admonished him for personally soliciting contributions from attorneys who sometimes had cases pending in the judge’s court.  The Arkansas Supreme Court held that the canon was narrowly tailored to the state’s interests in judicial impartiality and open-mindedness, and that White was inapplicable because the facts of the case and the details of the solicitation canon were distinguishable:  “We do not believe anyone can seriously argue that a judge personally soliciting campaign contributions from attorneys having cases before him or her should be permissible.”

Griffen v. Arkansas Judicial Discipline and Disability Comm’n, 130 S.W.3d 524 (Ark. 2003). An African-American appellate judge spoke publicly before the Arkansas Legislative Black Caucus, decrying the state university’s allegedly inadequate pursuit of diversity. By a 4-3 vote, the Arkansas Supreme Court reversed discipline imposed on the judge under the state’s version of the 1990 Model Code’s Canon 4C(1), which prohibits judges from consulting with legislators with two exceptions. The majority found the exception for a judge “acting pro se in a matter involving the judge or the judge’s interests” too vague to give the judge notice that his speech was outside the exception. The Supreme Court subsequently deleted the “judge’s interest” exception from the canon. Opinion - Order Amending Canon

In re Kinsey, 842 So.2d 77 (Fla. 2003), cert. denied, 540 U.S. 825 (2003). In reviewing charges stemming from a pro-prosecution judicial campaign, the Florida Supreme Court upheld the Pledge or Promise Clause, the Commit Clause, and the clause prohibiting false statements or misrepresentations about an opponent (in this case, giving a misleading account of the incumbent’s granting bail in a particular case).  Opinion

In re Dunleavy, 838 A.2d 338 (Me. 2003), cert. denied, 541 U.S. 960 (2004). A probate judge who ran for state senate was charged with violating canons (1) prohibiting sitting judges from accepting campaign contributions and (2) requiring judges to resign from the bench before running for political office. The Maine Supreme Judicial Court upheld both canons. It also struck down, as a violation of the separation of powers, a statute that overrode the second canon.
Opinion

In re Raab, 793 N.E.2d 1287 (N.Y. 2003). New York’s highest court upheld the political activity canons, noting that they distinguish between a candidate’s permitted activities in support of his own campaign and a judge’s prohibited activities not directly related to the judge’s own reelection. The court also found the canons narrowly tailored to preserve the impartiality and independence of the judiciary.
Opinion - Brennan Center Litigation Page

In re Watson, 794 N.E.2d 1 (N.Y. 2003). New York’s highest court upheld the Pledge or Promise Clause in a case involving a judicial candidate who ran a pro-prosecution campaign that the court found improperly promised voters the candidate would be biased against certain criminal defendants and would not apply the law impartially.
Opinion - Brennan Center Litigation Page