Kansas Judicial Review v. Stout

Decision Date12 March 2008
Docket NumberNo. 06-3290.,06-3290.
Citation519 F.3d 1107
PartiesKANSAS JUDICIAL REVIEW; The Honorable Charles M. Hart; The Honorable Robb Rumsey, Plaintiffs-Appellees, v. Mike L. STOUT, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Jennifer L. Jones, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Nancy Anstaett, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Patrick Brazil, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Theodore B. Ice, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Christina Pannbacker, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; William B. Swearer, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Carolyn Tillotson, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Robert Fleming, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Bruce Buchanan, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Mary Davidson Cohen, in her official capacity as a Member of the Kansas Commission on Judicial Qualifications; Robert A. Creighton, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; David J. King, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Lawrence E. Sheppard, in his official capacity as a Member of the Kansas Commission on Judicial Qualifications; Edward G. Collister, Jr., in his official capacity as Commission Examiner for the Kansas Commission on Judicial Qualifications; Stanton A. Hazlett, in his official capacity as Disciplinary Administrator; Frank D. Diehl, in his official capacity as Deputy Disciplinary Administrator; Alexander M. Walczak, in his official capacity as Deputy Disciplinary Administrator; Janith A. Davis, in her official capacity as Deputy Disciplinary Administrator; Gayle B. Larkin, in her official capacity as Admissions Attorney, Defendants-Appellants. Association of Judicial Disciplinary Counsel; National Ad Hoc Advisory Committee on Judicial Campaign Conduct; Columbus Bar Association; Dade County Bar Association; King County Bar Association; Georgia Committee for Ethical Judicial Campaigns; South Dakota's Special Committee on Judicial Election Campaign Intervention; Conocophillips, Emerson; General Electric Company; General Mills, Inc.; General Motors Corporation; Halliburton Company; JP Morgan Chase & Co.; Motorola, Inc; Pepsico; Phelps Dodge Corporation; Texas Instruments Incorporated; Time Warner Inc.; Wyeth; The Brennan Center for Justice at New York University Law School; Conference of Chief Justices, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

James Bopp, Jr., Anita Young Woudenberg, Thomas J. Marzen, Bopp, Coleson & Bostrom, Terre Haute, IN, Richard J. Peckham, Andover, KS, for Plaintiffs-Appellees.

Stephen O. Phillips, Office of the Attorney General State of Kansas, Topeka, KS, George T. Patton, Jr., Marisol Sanchez, Bose McKinney & Evans LLP, Indianapolis, IN, for Defendants-Appellants.

Before LUCERO, EBEL, and HOLMES; Circuit Judges.

CERTIFICATION OF QUESTION OF STATE LAW

CARLOS F. LUCERO, Circuit Judge.

Kansas Code of Judicial Conduct Canons 5A(3)(d)(i) and (ii) and 5C(2) ("Canons") prohibit candidates for state judicial office from making certain kinds of pledges and commitments, and from personally soliciting support for their campaigns. Plaintiffs-Appellees Kansas Judicial Review ("KJR"), the Honorable Charles M. Hart, and Robb Rumsey filed proceedings in the United States District Court of Kansas, claiming that the Canons are unconstitutional both on their face and as applied because they infringe on First Amendment rights of political expression. On the basis that plaintiffs had standing, that their claims were ripe, and that they were likely to succeed on the merits, the district court granted the preliminary injunction shortly before the 2006 state election. The Kansas Commission on Judicial Qualifications (the "Commission") appeals the grant of the preliminary injunction preventing enforcement of these Canons.

Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we hold that plaintiffs have standing to challenge the Canons and that their claims are ripe. Because there are important and unsettled questions of state law underlying plaintiffs' claims, we CERTIFY questions to the Kansas Supreme Court. Accordingly, we reserve judgment on the grant of preliminary injunction pending the decision of the state court on these issues, and we retain jurisdiction over any federal constitutional questions remaining thereafter. We VACATE the preliminary injunction with respect to the unchallenged portion of Canon 5C(2) regarding judicial candidates' solicitation of campaign contributions.

I
A

Kansas provides for popular election of some judges, holding partisan political contests for judicial office in 14 of its 31 judicial districts. The Kansas Supreme Court has adopted a Code of Judicial Conduct ("Code") regulating the behavior of judges and judicial candidates. See Kan. Sup.Ct. R. 601A. Three bodies are involved in the interpretation and enforcement of the Code: the Judicial Ethics Advisory Panel ("JEAP"), the Commission, and the Kansas Supreme Court.

JEAP was created by the Kansas Supreme Court to provide nonbinding ethical "guidance" to persons subject to the Code. See Kan. Sup.Ct. R. 650. The panel is comprised of three retired judges, one of whom is usually a retired state Supreme Court justice, and panel members are appointed by the Kansas Supreme Court. Judges and judicial candidates may request advisory opinions interpreting the Code from JEAP. Id. Although these advisory opinions are not binding on the Commission or the Kansas Supreme Court, the Commission must take into account a judge or candidate's reliance upon an advisory opinion in its investigation of an alleged violation of the Code. Kan. Sup.Ct. R. 650(f). According to Justice Robert Six, a former Commission member and a retired Kansas Supreme Court justice, judges in the state rely upon these opinions and consider them "authoritative."

The Commission, also established, by the Kansas Supreme Court, is charged with investigating allegations against judges and candidates, and recommending disciplinary action when necessary. See Kan. Sup.Ct. R. 602-21. Its 14 members are appointed by the Supreme Court and consist of a mix of judges, lawyers, and nonlawyers. Anyone may submit a complaint regarding the conduct of a judge or candidate to the Commission, with the majority of complaints coming from the general public. Each complaint received by the Commission is assigned to a seven-member panel for investigation. If the investigatory panel finds probable cause of a violation of the Code, it refers the matter to a seven-member hearing panel for a trial-like proceeding. There is no direct appeal of the investigatory panel's decision.

Upon finding clear and convincing evidence of an ethics violation, the hearing panel may take several actions, ranging from an admonishment by the panel to a recommendation that the Kansas Supreme Court remove the judge from the bench. Although the hearing panel may rely on clearly established constitutional law, it may not consider novel constitutional arguments. Disciplinary recommendations made by the panel are automatically reviewed by the Kansas Supreme Court. Factual findings of the hearing panel are subject to substantial evidence review.

This case involves challenges to three Code clauses. Canon 5A(3)(d) provides that judicial candidates "shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" ("Pledges Clause") or "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" ("Commits Clause"). Canon 5C(2) provides that "a candidate shall not personally . . . solicit publicly stated support," although candidates may establish committees to solicit support and campaign contributions on their behalf ("Solicitation Clause"). These clauses apply to all judicial candidates. See Kan. Sup.Ct. R. 601A pmbl. (defining "candidate"); 601A (containing Canon 5).

B

In February 2006, plaintiff KJR mailed a questionnaire and explanatory cover letter to all declared judicial candidates in Sedgwick County, Kansas. Candidates were asked to answer the questionnaire, designed to elicit views on a variety of legal and political issues.1 The cover letter asked that candidates answer the questionnaire, consistent with their ethical obligations under the Code. An option of declining to respond if candidates believed the Code prohibited answering was offered. KJR received seven, responses, only one of which included substantive answers to the questionnaire. All other candidates marked the "Decline to Respond" option.2

JEAP has issued two opinions addressing candidate questionnaires.3 In 2000, JEAP published advisory opinion JE 100, which states that a judicial candidate may not answer questionnaires sent by newspapers for the purpose of deciding whether to make an endorsement The majority of the panel viewed the answering of such questionnaires as requests for public endorsement and concluded that a response would violate the Solicitation Clause. One panel member dissented and advanced the view that a candidate may answer such questionnaires but "must be ever mindful of the Canons of Judicial Conduct, particularly Canon 5." After JE 100 was published, the Commission attached a "Note" to the opinion, stating that it was not bound by JEAP advisory opinions and adopted the minority view.

In 2006, plaintiff Robb...

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