Kansas Judicial Review v. Stout, 100,170.

• Citation: 196 P.3d 1162,287 Kan. 450
• Decision Date: 05 December 2008
• Docket Number: No. 100,170.,100,170.
• Parties: KANSAS JUDICIAL REVIEW; The Honorable Charles M. Hart; The Honorable Robb Rumsey, Plaintiffs, v. Mikel L. STOUT, in his Official Capacity as a Member of the Kansas Commission on Judicial Qualifications, et al., Defendants.
• Court: United States State Supreme Court of Kansas

196 P.3d 1162

287 Kan. 450

KANSAS JUDICIAL REVIEW; The Honorable Charles M. Hart; The Honorable Robb Rumsey, Plaintiffs, v. Mikel L. STOUT, in his Official Capacity as a Member of the Kansas Commission on Judicial Qualifications, et al., Defendants.

No. 100,170.

Supreme Court of Kansas.

December 5, 2008.

Anita Young Woudenberg, of Bopp Coleson & Bostrom, of Terre Haute, Indiana, argued the cause, and James Bopp, Jr., Thomas J. Marzen, Susan Lee, and Josiah Neeley, of the same firm, Austin K. Vincent, of Topeka, and Richard Peckham, of Andover, were with her on the briefs for plaintiffs.

George T. Patton, Jr., of Bose McKinney & Evans LLP, of Indianapolis, Indiana, argued the cause, and Marisol Sanchez, of the same firm, Stephen O. Phillips, assistant attorney general, and Stephen N. Six, attorney general, were with him on the brief for defendants.

PER CURIAM.

The United States Court of Appeals for the Tenth Circuit, pursuant to K.S.A. 60-3201, submits five certified questions regarding the interpretation of various provisions of the Kansas Code of Judicial Conduct, Rule 601A (2007 Kan. Ct. R. Annot. 617). Kansas Judicial Review v. Stout, 519 F.3d 1107 (10th Cir.2008). The case from which the questions arise is on appeal from a decision of the United States District Court for the District of Kansas, which granted a preliminary injunction against enforcement of the questioned judicial canons on the basis that they violated the First Amendment to the United States Constitution. See Kansas Judicial Watch v. Stout, 440 F.Supp.2d 1209, 1239-41 (D.Kan.2006).

These certified questions require this court to interpret three sections of the Kansas Code of Judicial Conduct (2007 Kan. Ct. R. Annot. 640): Canon 5A(3)(d)(i), Canon 5A(3)(d)(ii), and Canon 5C(2). Canon 5A(3)(d)(i)—the "pledges clause"—states that a candidate for judicial office "shall not ... make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." (2007 Kan. Ct. R. Annot. 641.) Canon 5A(3)(d)(ii)—the "commits clause"—states that a candidate for judicial office "shall not ... 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." (2007 Kan. Ct. R. Annot. 642.) Canon 5C(2)—the "solicitations clause"—states in relevant part that a candidate for judicial office "shall not personally ... solicit publicly stated support. ... A candidate subject to public election may, however, establish committees of responsible persons ... to obtain public statements of support for his or her candidacy." (2007 Kan. Ct. R. Annot. 643-44.)

The five questions certified by the Tenth Circuit, and our respective answers to those questions, are as follows:

1. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues?

Answer: Perhaps, depending on the questions asked.

2. Does a judicial candidate solicit "publicly stated support" in violation of Canon 5C by personally collecting signatures for his or her nomination petition?

Answer: Yes.

3. Does the definition of "the faithful and impartial performance of the duties of the office" in Canon 5A(3)(d)(i) include all conduct relevant to the candidate's performance in office?

Answer: Yes.

4. Is the definition of "appear to commit" in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate's intent to commit himself or herself?

Answer: Yes.

5. Does the definition of "publicly stated support" in Canon 5C(2) include endorsements of a candidate?

Answer: Yes.

FACTUAL BACKGROUND

Plaintiffs Kansas Judicial Review, a political action committee, Robb Rumsey, previously a judicial candidate and now a state district court judge, and Charles Hart, a state district court judge, filed an action in the United States District Court for the District of Kansas against members of the Kansas Commission on Judicial Qualifications and the office of the Disciplinary Administrator, seeking injunctive and declaratory relief under 42 U.S.C. § 1983 (2000). The plaintiffs claimed that the three aforementioned provisions of the Kansas Code of Judicial Conduct violated their rights to freedom of speech and freedom of assembly under the First Amendment to the United States Constitution. See Kansas Judicial Watch v. Stout, 440 F.Supp.2d 1209 (D.Kan.2006). The federal district court granted a preliminary injunction against enforcement of the judicial canons in question. 440 F.Supp.2d at 1240-41.

The defendants appealed. The United States Court of Appeals for the Tenth Circuit determined that the plaintiffs' First Amendment claims "rest[ed] on sufficiently novel and determinative questions of state law" regarding the canons and that there were "important state policy interests at play" regarding the regulation of judicial conduct and the judicial process. Kansas Judicial Review, 519 F.3d at 1120. The Tenth Circuit decided not to reach the merits of the plaintiffs' claims before the Kansas Supreme Court had an opportunity to resolve the underlying questions of state law. 519 F.3d at 1120. The Tenth Circuit noted that if the Kansas Supreme Court were to interpret the provisions of our judicial code in such a way that the questionable conduct was permissible, the issues relating to the constitutionality of these provisions, which were reserved by the Tenth Circuit, might be eliminated. 519 F.3d at 1120-22.

This court has jurisdiction to answer questions certified to it by a United States Court of Appeals under K.S.A. 60-3201, which provides that the Kansas Supreme Court may answer certified "questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state." Because certified questions must, by definition, turn on legal issues, this court's review of such questions is unlimited, subject only to the contours of the questions themselves. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 764-65, 986 P.2d 377 (1999). The underlying facts are not in dispute. The Tenth Circuit Court of Appeals provided the following factual background:

"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 [2007 Kan. Ct. R. Annot. 617]. 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 [2007 Kan. Ct. R. Annot. 665]. 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. [Rule 650(b).] 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) [2007 Kan. Ct. R. Annot. 666]. According to Justice [Fred] 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 [2007 Kan. Ct. R. Annot. 647-59]. 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 [Terminology] (...