Arl Pac v. Feldman
| Citation | 504 F.3d 840 |
| Decision Date | 21 September 2007 |
| Docket Number | No. 05-35902.,No. 05-36027.,05-35902.,05-36027. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Parties | ALASKA RIGHT TO LIFE POLITICAL ACTION COMMITTEE; Michael W. Miller, Plaintiffs-Appellees, v. Jeffrey M. FELDMAN; Nancy Nolan; Patricia Collins; Ben J. Esch; Thomas Nave; Peter Aschenbrenner; Richard L. Burton; Ethel L. Staton, Defendants-Appellants, Steve Van Goor, Defendant-Appellee. Alaska Right to Life Political Action Committee; Michael W. Miller, Plaintiffs-Appellants, v. Jeffrey M. Feldman; Nancy Nolan; Patricia Collins; Ben J. Esch; Thomas Nave; Peter Aschenbrenner; Richard L. Burton; Ethel L. Staton; Steve Van Goor, Defendants-Appellees, and Mark Woelber; Louise Driscoll; Deborah Ricker; Gail Welt; Annette Ravithis, Defendants. |
James Bopp, Jr., Thomas J. Marzen, Anita Y. Woudenberg, Terre Haute, Indiana, and William F. Sherman, Anchorage, AK, for plaintiffs-appellants Alaska Right to Life Political Action Committee and Michael Miller.
Jan Hart DeYoung, Anchorage, AK, for defendants-appellants Jeffrey M. Feldman, Nancy Nolan, Patricia Collins, Ben J. Esch, Thomas Nave, Peter Aschenbrenner, Richard L. Burton, and Ethel L. Staton.
Neil T. O'Donnell, Anchorage, AK, for defendant-appellee Steve Van Goor.
Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. Nos. CV-04-00239-A-RRB, CV-04-00239-RRB.
Before: J. CLIFFORD WALLACE, JOHN T. NOONAN, and RICHARD A. PAEZ, Circuit Judges.
In October 2002, the Alaska Right to Life Political Action Committee ("ARL PAC") circulated a questionnaire to the twelve Alaska state court judges who were seeking retention votes in the then-upcoming November 2002 election. The questionnaire solicited the judges' views on a variety of legal and political issues such as abortion and assisted suicide. Only four judges responded. None indicated a view with respect to any of the positions listed in the questionnaire but all provided explanations for their decisions not to participate, including concern that responding would require subsequent recusal, provisions of the Alaska Code of Judicial Conduct ("Code") that prohibit judges from pledging, promising, or committing to particular conduct in judicial office, one judge's personal code of judicial ethics, and "advice from Judicial Conduct Commission in my state."
In October 2004, approximately one month prior to Alaska's 2004 general election, ARL PAC and individual plaintiff-appellant Michael Miller (collectively "Plaintiffs") brought suit against eight named members of the Alaska Commission on Judicial Conduct ("Commission") and six named members of the Disciplinary Board of the Alaska Bar Association ("Bar"), challenging the constitutionality of three provisions in the Alaska Code of Judicial Conduct ("Code"): (1) requiring disqualification from any proceeding in which a judge's impartiality might reasonably be questioned; (2) prohibiting judicial candidates from making pledges or promises of particular conduct in judicial office; and (3) restricting statements that commit or appear to commit a judicial candidate to a particular view or decision regarding a case likely to come before the court. ARL PAC and Miller alleged that the two canons containing these three restrictions chilled judicial candidates from responding to their survey, in violation of the First Amendment. ARL PAC did not circulate a questionnaire to any of the ten judges who were seeking retention in the 2004 election prior to the filing of the Complaint, and neither the Commission nor the Bar ever threatened to enforce any provision of the Code against judges who might have chosen to respond to such a questionnaire. The district court nonetheless concluded that ARL PAC and Miller's suit was justiciable. On the merits, the court invalidated the canon that prohibits pledges and promises of conduct in judicial office and statements that commit or appear to commit a judicial candidate to a particular view or decision but rejected Plaintiffs' challenge to the canon requiring disqualification from proceedings in which a judge's impartiality might reasonably be questioned. The parties cross-appealed. ARL PAC and Miller also appealed the district court's orders denying their motion for attorneys' fees and costs against the Commission and granting Defendant-Appellee Steve Van Goor's motion for attorneys' fees and costs against Plaintiffs.
Because ARL PAC and Miller's constitutional challenges were not ripe, we vacate the district court's order and judgment and remand with instructions to dismiss. Without a more fully developed factual record, including evidence of some real threat of enforcement, and without a showing that withholding federal adjudication would impose hardship on Plaintiffs, we conclude that the district court should have declined jurisdiction for lack of a justiciable case or controversy. This conclusion renders moot Plaintiffs' appeal from the order denying its motion for attorneys' fees and costs against the Commission and their motion to dismiss the portion of their appeal regarding their challenge to the constitutionality of Alaska's disqualification clause. We affirm the district court's order granting attorney's fees and costs to Van Goor.
Alaska selects its Supreme Court justices and lower court judges through a nomination and appointment procedure. When a vacancy arises on the state bench, the Alaska Judicial Council ("Council")1 nominates two or more candidates, one of whom the governor then appoints to the position. Alaska Const. art. IV, § 5. Justices and judges are subject to a nonpartisan retention vote during the first general election that takes place more than three years after their appointment to the bench. Id. § 6.2 Thereafter, each Justice stands for retention every ten years and each judge stands for retention every six years. Id.
Among its other duties, the Alaska Supreme Court is charged with "mak[ing] and promulgat[ing] rules governing the administration of all courts," id. § 15, including the Alaska Code of Judicial Conduct. These two appeals concern two canons of the Code: Canon 3E(1), which requires that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," and Canon 5A(3)(d), which establishes that:
[a] candidate for judicial office[3] . . . (d) shall not: (i) make pledges or promises of conduct in judicial office other than to faithfully and impartially perform the duties of the office; (ii) make statements that commit or appear to commit the candidate to a particular view or decision with respect to cases, controversies or issues that are likely to come before the court.
Subclause (i) of Canon 5A(3)(d) is commonly referred to as a "pledge and promise clause;" subclause (ii) is known as a "commit clause." Only the Alaska Supreme Court may impose sanctions against judges for violations of the Code, see Alaska Stat. §§ 22.30.011(d)(1)(2), 22.30.070(b); that court therefore has exclusive authority definitively to interpret the Code's provisions.
The Commission,4 however, bears the initial burden of investigating allegations of judicial misconduct, including alleged violations of the Code. Alaska Stat. § 22.30.011(a), (b). After conducting an investigation and hearing, the Commission may either exonerate the judge or "refer the matter to the supreme court with a recommendation that the judge be reprimanded, suspended, removed, or retired from office or publicly or privately censured by the supreme court." Id. § 22.30.011(d). In addition to its investigation and recommendation duties, Rule 19(a) of the Commission's Rules of Procedure authorizes, but does not require, the Commission to issue a formal advisory opinion upon written request of a state judicial officer; such an opinion provides an absolute defense in any subsequent disciplinary proceedings based on that conduct. Pursuant to Rule 19(d), however, informal verbal guidance provided by Commission members and staff has no legal effect and does not provide a recognized defense to a later disciplinary charge.
The Disciplinary Board of the Alaska Bar Association is an entirely separate entity charged with "supervis[ing] the investigation of all complaints against attorneys." Bar Counsel R. 10(c)(1)(2); see also Bar Counsel R. 11(a)(7) (). While the Bar has authority to enforce Alaska Rule of Professional Conduct 8.2(b), which requires that lawyers who are candidates for judicial office "comply with the applicable provisions of the Code of Judicial Conduct," and therefore derivatively to interpret the Code of Judicial Conduct, it has never done so. This power presumably applies only prior to an individual attorney's initial appointment to the bench, as a judicial candidate seeking a retention vote is already a judicial officer subject to the Commission's enforcement of the Code.
In October 2002, ARL PAC, which describes itself as "a not-for-profit membership corporation organized to provide assistance to the unborn child and to promote social welfare and the common good and general welfare of the people of the States of Alaska," circulated a questionnaire to the twelve judges who were seeking retention in the upcoming November 2002 election. The questionnaire listed nine positions relating to abortion, assisted suicide, in vitro fertilization and cloning, wrongful life, and wrongful birth and asked respondents to check "Agree," "Disagree," "Undecided," or "Decline" in response to each position.5 A footnote to the "Decline" option stated that checking this response indicated the judge's good faith belief that "under a reasonable construction of applicable Canons of Judicial Conduct or because my recusal would be subsequently required, I must decline to...
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