Cross v. Wolnitzek
| Decision Date | 13 July 2010 |
| Docket Number | Nos. 08-6468, 08-6538.,s. 08-6468, 08-6538. |
| Citation | 614 F.3d 189 |
| Parties | Marcus CAREY, Plaintiff-Appellant/Cross-Appellee, v. Stephen D. WOLNITZEK, in his official capacity as Chairperson of the Kentucky Judicial Conduct Commission; Michele M. Keller, in her official capacity as a member of the Kentucky Judicial Conduct Commission; Eddy Coleman, in his official capacity as a member of the Kentucky Judicial Conduct Commission; Susan M. Johnson, in her official capacity as a member of the Kentucky Judicial Conduct Commission; Diane E. Logsdon, in her official capacity as a member of the Kentucky Judicial Conduct Commission; Joyce King Jennings, in her official capacity as a member of the Kentucky Judicial Conduct Commission; Lee E. Sitlinger, Jr., in his official capacity as chairperson of Panel A of the Kentucky Inquiry Commission; Reed N. Moore, Jr., in his official capacity as chairperson of Panel B of the Kentucky Inquiry Commission; Stephen L. Barker, in his official capacity as chairperson of Panel C of the Kentucky Inquiry Commission; Linda A. Gosnell, in her official capacity as Bar Counsel in Kentucky, Defendants-Appellees/Cross-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
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ARGUED: James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, for Appellees. ON BRIEF: James Bopp, Jr., Anita Y. Woudenberg, Bopp, Coleson & Bostrom, Terre Haute, Indiana, for Appellant. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, Bethany A. Breetz, Stites & Harbison, PLLC, Louisville, Kentucky, R. Gregg Hovious, Fultz Maddox Hovious & Dickens PLC, Louisville, Kentucky, for Appellees. Benjamin C. Mizer, David M. Lieberman, Emily S. Schlesinger, Office of the Ohio Attorney General, Columbus, Ohio, B. Eric Restuccia, Office of the Michigan Attorney General, Lansing, Michigan, for Amici Curiae.
Before BATCHELDER, Chief Judge, SUTTON, Circuit Judge, WISEMAN, District Judge. *
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C.J., joined. WISEMAN, D.J. (p. 219), delivered a separate opinion concurring in part and dissenting in part.
Imagine if a State imposed these restrictions on candidates for election to the legislature: (1) They “shall not identify” themselves “as a member of a political party in any form of advertising or when speaking to a gathering”; (2) they “shall not solicit campaign funds”; and (3) they “shall not ... make a statement that a reasonable person would perceive as committing” the candidate to vote “a certain way on a[n] ... issue” likely to come before the legislature. A court faced with a First (and Fourteenth) Amendment challenge to the law would make short work of it. Legislative candidates have a First Amendment right to associate publicly with a political party, see Tashjian v. Republican Party of Conn., 479 U.S. 208, 214, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), to solicit campaign funds, see Riley v. Nat'l Fed. of the Blind of N.C., 487 U.S. 781, 796, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), and to communicate to their constituents how they will vote on the issues of the day, see Brown v. Hartlage, 456 U.S. 45, 55-59, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). It is doubtful that a single federal or state court judge in the country would see it differently.
Yet what happens if the same restrictions apply to judicial elections, not legislative elections? Some say the answer is the same. Elections are elections, and the same First Amendment applies to all of them. When the government suppresses election speech based on its content-prohibiting candidates from mentioning a political party with whom they affiliate, barring them from putting their name on a fund-raising letter or telling them what they can and cannot say about their judicial philosophy-the most rigorous form of constitutional second-guessing applies, and no categorical exemption from the First Amendment spares the government from this burden. In modern America, judicial elections are no less relevant to the public policy concerns of the citizenry than legislative elections, and the First Amendment protects electioneering speech in the one context as vigorously as it does in the other. Concerns about impartiality and open-mindedness that might result from unfettered judicial campaigning can be handled after the elections, not before, through the application of case-by-case judicial recusal rules that all States require their judges to follow before they agree to hear a case. Any remaining concerns flow not from the absence of speech restrictions on judicial candidates but from the State's insistence on holding elections for judicial office in the first place. A State cannot simultaneously insist that judges be held accountable to the electorate at regular intervals but deny to sitting judges and candidates alike the communicative tools for explaining how they will be held to account.
Others say it is not that easy. Judges do not represent constituents. They apply the law to the facts one case at a time, and, if they represent anyone or anything, it is the rule of law, which is why they sometimes must rule against the policy preferences of a majority of the voters. The judicial process works only when it is done in a disinterested manner, which is inconsistent with campaigns in which judges commit to rule, or appear to commit to rule, in a certain way in certain cases. It is one thing when a legislator solicits money during a campaign; it is quite another when a judicial candidate, a sitting judge above all, does the same. With a few modest exceptions, see, e.g., Caperton v. A.T. Massey Coal Co., --- U.S. ----, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009); Mich. Court Rule 2.003, judicial-recusal rules are self-enforced and therefore may not provide adequate safeguards against the risks that flow from treating judicial elections like legislative ones. Unlike the other branches of government, the authority of the judiciary turns almost exclusively on its credibility and the respect warranted by its rulings, both of which are likely to be diminished by free-flowing electoral speech that permits the malignant inference that there is such a thing as caucus-bound blue-robed judges and caucus-bound red-robed judges. In some settings, there can be too much of a good thing, and unfettered free speech in judicial elections is one of them.
This is a complicated debate, and today's case requires us to take a side on some of these issues. Most recently in 2005, the Kentucky Supreme Court promulgated a judicial canon along the lines of the hypothetical legislative campaign rules mentioned above. As sitting judges ourselves, we have considerable sympathy for the concerns that prompted the canon, so much so that we embrace a central premise of it: Judicial elections differ from legislative elections, and the Kentucky Supreme Court has a compelling interest in regulating judicial campaign speech to ensure the reality and appearance of an impartial judiciary. Yet because two clauses of the canon overlooked narrower ways of advancing this interest and because, as written, they remain incompatible with the United States Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), we must invalidate them. The third clause is constitutional in the main but contains a material ambiguity, which requires further consideration by the district court. The district court's decision is affirmed in part and vacated in part.
In 1792, Kentucky became the fifteenth State (and the fourth Commonwealth). The original Kentucky Constitution permitted the Governor to appoint judges, see Ky. Const. art. 2, § 8 (1792), but the Commonwealth, in the aftermath of the Age of Jackson, amended its Constitution in 1850 to require its judges to stand for popular election to eight-year terms. See Ky. Const. § 117; Ky. Const. art. 4, §§ 4, 6 (1850). Since 1975, judicial elections in Kentucky have been “nonpartisan,” compare Ky. Const. § 116 (1891) with Ky. Const. § 117 (1976), meaning that political parties have no formal role in any stage of the judicial selection process. Prospective candidates submit petitions for nomination to the Secretary of State. Ky.Rev.Stat. Ann. § 118A.060. The Commonwealth holds a single primary election for each judicial seat with no party identifiers and random ballot positioning. Id. The top two vote-getters in the primary election receive a spot on the general election ballot, which also is held without any party identifier. Id.
In competing for judicial seats, all candidates must abide by the Kentucky Code of Judicial Conduct. Promulgated by the Kentucky Supreme Court, it generally prohibits “a judge or judicial candidate” from “inappropriate political activity.” Rules of Supreme Court of Kentucky 3.130(8.2); 4.300, Canon 5. Sitting judges or judicial candidates violate this admonition, the Code says, if they fail to follow these clauses of Canon 5, among others: The party affiliation clause. Canon 5(A)(2).
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