Fair Courts Litigation Task Force

Rules Governing Judicial Campaign Conduct

22 states use competitive elections to fill state supreme court seats, and at least some judges face some kind of election in 39 states.  Rules that govern judicial campaign conduct are generally established by state courts, and sometimes adopted by state legislatures.  Frequently modeled on American Bar Association guidelines, these rules seek to further the independence, impartiality, and fairness of the judiciary.  In recent years, some of these rules have been under attack.  For example, rules limiting judicial campaign conduct have been attacked as unduly restrictive of candidate's free speech rights.  

Judicial Campaign Conduct Cases

Williams-Yulee v. Florida Bar.  On April 29th, the Supreme Court issued a decision in Williams-Yulee v. Florida Bar, upholding the constitutionality of Florida’s canon of judicial conduct prohibiting judicial candidates from personally soliciting campaign contributions. This case was a major victory for the fair courts movement, as Chief Justice Roberts joined with the court’s progressive wing for only the second time, recognizing that states’ compelling interest in judicial integrity allows judicial elections to be regulated differently than other elections. This case represents a notable departure from the Court’s recent campaign finance jurisprudence, and opens an important window for efforts to protect judicial integrity in the 39 states that elect judges. This is the first U.S. Supreme Court case involving judicial campaign conduct since 2002's Republican Party of Minnesota v. White.

Republican Party of Minnesota v. White, 536 U.S. 765 (2002): In this case, the Supreme Court ruled that the "announce" clause, a provision of Minnesota’s Code of Judicial Conduct that prohibits a candidate for judicial office from discussing his or her views on a political issue violates the First Amendment.  Subsequently, on August 2, 2005, the Eighth Circuit, sitting en banc, held unconstitutional Minnesota’s canons limiting judges’ and judicial candidates’ partisan political activities. It also held that Minnesota may not prohibit judicial candidates from personally soliciting campaign funds through solicitation letters or appeals to large gatherings. 

After the landmark case Republican Party of Minnesota v. White, judicial canons across the country came under attack.

Alaska

Alaska Right to Life Political Action Committee v. Feldman, 504 F.3d 840 (9th Cir. 2007): A political action committee challenged canons that prevented judicial candidates from responding to questionnaires or surveys regarding their views. The district court struck down Alaska’s pledges or promises and commit clauses and upheld its recusal provisions. Alaska Right to Life Political Action Comm. v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005). The Ninth Circuit vacated the district court's order striking down the 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.

Arizona

Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010): A candidate for judicial office brought an action challenging several canons of the Arizona Code of Judicial Conduct. While the action was pending the candidate lost the election, and the district court dismissed the case as moot because the candidate did not plan to run in the next election. The Ninth Circuit reversed, holding that the claim was capable of repetition but evading review, and thus was not moot. The court found that the candidate intended to run for judicial office in a future election, just not the next election. The court also held that the candidate had standing, and that the challenge to solicitation and political activities clauses was ripe for review. However, the Ninth Circuit concluded that the challenge to the pledges or promises clause was not ripe because there was no risk of imminent prosecution since the candidate only wanted to be able to talk about disputed legal issues, and did not plan commit or make promises on legal issues.

Wolfson v. Brammer, 822 F. Supp. 2d 925 (D. Ariz. 2011) appeal docketed, No. 11-17634 (9th Cir. 2011): On remand from the Ninth Circuit, the district court considered the merits of the candidate’s claims regarding the solicitation, endorsement, and political activities clauses of the Arizona Code of Judicial Conduct. The district court, following the balancing test advanced by the Seventh Circuit in Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), and Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010), determined that intermediate scrutiny applied to these restrictions on conduct in judicial elections. Applying the balancing test, the court concluded that solicitation clause, which prohibited personal solicitation of contributions and required the use of a campaign committee, was constitutional. Similarly, the court held that the endorsements and political activities clauses were constitutional, finding the state’s interests in an impartial judiciary outweighed candidates interests in participating in political campaigns of other candidates. The candidate’s appeal to the Ninth Circuit is pending; oral argument in the case is scheduled for July 2013.

Arkansas

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. 

Simes v. Ark. Judicial Discipline & Disability Comm’n, 247 S.W.3d 876 (Ark. 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.”

Florida

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) of the Florida Code of Judicial Conduct. In 2005, 2006, and 2008 the Florida Supreme Court made minor amendments to its canons of judicial conduct. In re Amendment to the Code of Judicial Conduct-Amendments to Canon 7, 985 So. 2d 1073 (Fla. 2008); In re Amendment to Code of Judicial Conduct, 918 So. 2d 949 (Fla. 2006) Amendment to Code of Judicial Conduct, Canon 7 (Political Activity), 897 So. 2d 1262 (Fla. 2005).

Fla. Family Policy Council v. Freeman, 561 F.3d 1246 (11th Cir. 2009).  A non-profit organization that distributed a questionnaire to judicial candidates, challenged the commits and recusal clauses of the Florida Code of Judicial Conduct, which require 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 had concluded that the organization had standing, and that the issues were ripe, but held that the clauses did not violate the Constitution. The Eleventh Circuit vacated the lower court’s opinion, holding that the organization lacked standing because its claim was not redressable, as the organization only challenged the canon, and not a state statute that also allowed a party to disqualify an impartial judge based on the same standard as the canon.

In re Williams-Yulee, No. SC11-265 (Fla. 2014).  In reviewing charges of professional misconduct stemming from a judicial election campaign, the Florida Supreme Court upheld Canon 7C(1) of the Florida Code of Judicial Conduct, which prohibits the personal solicitation of campaogn contributions by judicial candidates.  The court concluded that the canon "promotes the State's compelling interests in preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests."

Georgia

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, 60-61 (1982), in striking down these provisions, 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.

Indiana

Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir. 2007): An anti-abortion organization sent a questionnaire to judicial candidates and sued, alleging that Indiana Code of Judicial Conduct violated their First Amendment rights to receive and publish protected speech. The SeventhCircuit reversed the district court's holding that 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 lower court had held that the clauses forbade the same type of speech as the clause at issue in White and they were not narrowly tailored to further the state’s interest in an impartial judiciary. Ind. Right to Life, Inc. v. Shepard, 463 F. Supp. 2d 879 (N.D. Ind. 2006). The Seventh Circuit held that Indiana Right to Life failed to produce any evidence that there were any otherwise willing speakers who only declined to answer the questionnaire because of the canons.

Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010), cert denied, 131 S.Ct. 2872 (May 2, 2011): Following dismissal for lack of standing, Indiana Right to Life filed a new lawsuit joined by a candidate for judicial office and a sitting judge. The plaintiffs challenged Indiana’s Code of Judicial Conduct commits clauses, recusal clause, partisan-activities clauses, and solicitation clauses. The Seventh Circuit affirmed the lower court’s finding that all the clauses were constitutional. The court adhered to its recent decision in Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), and distinguished the Sixth Circuit’s decision in Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) in finding the solicitation clauses were constitutional; the court noted a circuit split on the issue. In finding the partisan-activities clauses constitutional, the court distinguished between what judges may do in their own campaigns, and how they can engage in other person’s campaigns, analogizing to prohibitions on governmental employees engaging in political activities. The court held the commits clause constitutional because unlike the provision at issue in White it did not prevent a candidate from stating his or her views, but only from making a commitment or promise about behavior in office. Finally, the court held Indiana’s recusal rule did not apply to a judge’s role as a candidate, but to the role as public employee, and that it represented a permissible decision by the state to assign impartial judges to cases.

Kansas

Yost v. Stout, No. 06–4122–JAR, 2008 WL 8906379 (Nov. 18, 2008): A state district court judge and candidate for reelection challenged several canons of the Kansas Code of Judicial Conduct. The district court held that the endorsements clause survived strict scrutiny, but granted the plaintiff’s motion for summary judgment as to the solicitation clauses, finding that these provisions did not survive strict scrutiny. The Tenth Circuit held that it did not have jurisdiction to consider the plaintiff’s appeal because it was not timely filed. Yost v. Stout, 607 F.3d 1239 (2010).  

Kansas Judicial Review v. Stout, 562 F.3d 1240 (10th Cir. 2009): An organization that had sent a questionnaire to judicial candidates, along with a candidate for judicial office and judge seeking re-election, challenged three canons of the Kansas Code of Judicial Conduct. The district court entered a preliminary injunction against enforcement of the pledges or promises, commit, and solicitation clauses. Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006). On appeal, the Tenth Circuit certified questions to the Kansas Supreme Court. Kansas Judicial Watch v. Stout, 519 F.3d 1107 (10th Cir. 2008). However after answering the certified questions, Kansas Judicial Watch v. Stout, 196 P.3d 1162 (Kan. 2008), the Kansas Supreme Court substantially modified its judicial canons. The Tenth Circuit ultimately concluded that the original challenge was moot.

Kentucky

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 clauses of the Kentucky Code of Judicial Conduct. 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. On appeal, the Sixth Circuit denied a stay of the injunction, finding that the Kentucky Judicial Conduct Commission was unlikely to prevail on the merits. Family Trust Found. of Kentucky, Inc. v. Kentucky Judicial Conduct Comm'n, 388 F.3d 224 (6th Cir. 2004). In 2005 the Supreme Court of Kentucky modified its canons to conform with the district court’s holding. See Carey v. Wolnitzek, No. 3:06-36-KKC, 2008 WL 4602786 at *5 (E.D. Ky. Oct. 15, 2008) aff'd in part, vacated in part, 614 F.3d 189 (6th Cir. 2010).  

Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010): A judicial candidate for the Kentucky Supreme Court, brought a facial challenge to three clauses of Canon 5 of Kentucky Code of Judicial Conduct: the party affiliation clause, the solicitation clause, and the commit clause. The candidate wanted to disclose his party affiliation, ask for campaign contributions by signing letters, and respond to a questionnaire distributed by a anti-abortion group. The Sixth Circuit, applying strict scrutiny, affirmed the lower court’s conclusion that the party affiliation and solicitations clauses violated the First Amendment as neither was narrowly tailored to serve the state’s compelling interests in having an unbiased judiciary and to decrease reliance on political parties in judicial elections. The court suggested that a more narrowly tailored solicitation clause could be constitutional, such as one that prohibited one-on-one solicitation. Regarding the commit clause, the court vacated the lower court’s holding that the law was constitutional, and remanded for further inquiry on the issue. The court noted that the part of the commit clause that prohibited commitments by a candidate to rule in certain cases and controversies was not problematic, but the clause also contained a prohibition from committing to issues, which was potentially unconstitutional.   

Carey v. Wolnitzek, No. 3:06-36-KKC, 2012 WL 4597236 (E.D. Ky. Sept. 29, 2012): Following the Sixth Circuit’s decision, the Kentucky Supreme Court amended the commits clause to only prohibit commitments, pledges, or promises inconsistent with the impartial performance of judicial duties. On remand, the District Court for the Eastern District of Kentucky considered whether the new language was unconstitutionally vague or overbroad. The court concluded the language was constitutional, relying heavily on the Seventh Circuit’s decision in Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010), which considered identical language in Indiana’s judicial code of conduct. The court held that the speech curtailed by the amended Kentucky commit clause was precisely the type of speech that the Supreme Court in White indicated could be curtailed.

Maine

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 prohibiting sitting judges from accepting campaign contributions and 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.

Minnesota

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, the Eighth Circuit 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. 

Wersal v. Sexton, 674 F.3d 1010, 1052 (8th Cir. 2012) (en banc) cert. denied, 133 S. Ct. 209 (2012): Following the Eighth Circuit’s decision in Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005), the Minnesota Supreme Court amended the parts of Code of Judicial Conduct. A candidate for judicial office wished to endorse other candidates for public office, as well as personally solicit funds for his own campaign and challenged the constitutionality of the amended provisions. A divided en banc Eighth Circuit upheld the challenged provisions. The court found that the challenged solicitation clauses only prohibited a judicial candidate from raising funds for another campaign, not in support of his own candidacy as the plaintiff proposed to do. The court further upheld restrictions on how funds could be solicited and prohibitions on endorsements of other candidates, finding the restrictions were narrowly tailored to further a compelling state interest in preserving impartiality and the appearance of impartiality.

Mississippi

In re Bell, 962 So.2d 537 (Miss. 2007): Three judicial candidates claimed that a fourth candidate made false and misleading statements in violation of the Mississippi Code of Judicial Conduct. A state chancery court, issued a temporary restraining order against the fourth candidate and the candidate appealed. The Mississippi Supreme Court vacated the restraining order, holding that the chancery court did not have jurisdiction and that an alleged the Code of Judicial Conduct did not provide the basis of a cause of action for the three candidates.

Montana

Sanders County Republican Cent. Committee v. Bullock, 698 F.3d 741 (2012). A state political party challenged a provision of Montana law which made it a criminal offense for any political party to endorse, contribute to, or make an expenditure in support or opposition of a candidate for judicial office. The Ninth Circuit, applying strict scrutiny, held that the provision was unconstitutional finding the state had not shown it was necessary to further a compelling state interest, or that it was narrowly tailored to serve that purpose. The court preliminarily enjoined Montana from enforcing the provision.

New Mexico

In the Matter of William A. Vincent, Jr., 172 P.3d 605 (N.M. 2007): New Mexico Supreme Court upheld the endorsement clause of the New Mexico Code of Judicial Conduct which prohibited 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.

New York

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.

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. 

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. 

North Dakota

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.

Ohio

O'Neil v. Coughlan 511 F.3d 638 (6th Cir. 2008): A judicial candidate sought an injunction against enforcement of several canons of the Ohio Code of Judicial Conduct, regarding his campaign advertising. The district court granted a permanent injunction against the enforcement of several of the canons which it held unconstitutional. O'Neill v. Coughlan, No. 104-CV-1612, 2007 WL 218717 (N.D. Ohio Jan. 26, 2007). The Sixth 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 Younger abstention argument, and that under the authority of Younger the district court erred in deciding the merits of the case.

Ohio Council 8 Am. Fed'n of State, Cnty., & Mun. Employees, AFL-CIO v. Brunner, 1:10-CV-504, 2012 WL 6114571 (S.D. Ohio Dec. 10, 2012): A labor organization, three judicial candidates, and a political party, challenged the solicitation clauses of the Ohio Code of Judicial Conduct which prohibit a judicial candidate from personally soliciting contributions but allow a candidate to solicit to groups of 20 or more, or through letters distributed by a candidate’s committee. Applying strict scrutiny, the district court held that the rules were not facially unconstitutional, finding the provisions narrowly tailored to Ohio’s compelling interests of impartiality, appearance of impartiality, and preventing coercion. However, the court found that the provisions were unconstitutional as applied to restricting candidates from personal soliciting family members for donations, and enjoined enforcement of the canon under those circumstances.

Pennsylvania

Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir. 2007): A non-profit organization that had distributed a questionnaire to candidates for judicial office brought an action to enjoin the enforcement of the pledges and promises and commitments clauses of Pennsylvania’s Code of Judicial Conduct. The Third Circuit affirmed the district court’s dismissal on standing and ripeness grounds. The court held that the organization lacked Article III standing because it had failed to establish the existence of a willing speaker, who declined to answer the questionnaire because of the canons.

Pennsylvania Family Institute, Inc. v. Celluci, 521 F. Supp. 2d 351 (E.D. Pa. 2007): Pennsylvania Family Institute brought a new action joined by candidates for judicial office. The district court held that Pennsylvania Judicial Canon 7B(1)(c)’s pledges and promises clause and commits clause were constitutional. The court vacated its prior preliminary injunction against the enforcement of the Canon. See Pennsylvania Family Inst., Inc. v. Celluci, 489 F. Supp. 2d 447 (E.D. Pa. 2007). However, the court adopted a narrow construction of the canons and deleted a part of the commit clause that stated that candidates could not “appear to commit” the candidate on issues. The court held that the canon, minus the unconstitutional “appear to commit” language, permitted any speech by a judicial candidate, short of a pledge, promise, or commitment to adjudicate a particular result, 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.

Democracy Rising PA v. Celluci, 380 F. App'x 155 (3d Cir. 2010): Following the district court’s opinion in Pennsylvania Family Institute, Inc. v. Celluci, 489 F. Supp. 2d 447 (E.D. Pa. 2007), the Pennsylvania Supreme Court amended Judicial Canon 7B(1)(c) to omit the “appear to commit” language. The Third Circuit held that this change to the canon mooted a case brought by a non-partisan organization that had distributed a questionnaire to candidates for judicial elections, and affirmed the lowers court’s dismissal of the case on justiciability grounds. The court noted that the plaintiffs lacked evidence that any candidate for judicial office had refused to answer the questionnaire because of the amended canon, as opposed to the original version, and thus had not demonstrated there was a willing speaker with respect to the modified canon. The court further held that that the controversy was not ripe because the plaintiffs presented no evidence that a Pennsylvania court or agency had interpreted the amended Canon from prohibiting the speech sought in the questionnaire.

Texas

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 the announce clause at issue in White, declared Canon 5(1) unconstitutional. 

Vermont

In re Hodgdon, 189 Vt. 265 (2011): The Vermont Supreme Court upheld a resign to run clause of the Vermont Code of Judicial Conduct. The court found that an assistant judge violated the clause by failing to resign from his post before becoming a candidate for a probate judge position. The court held that the clause did not violate the Equal Protection Clause, the First Amendment, or any provisions of the Vermont Constitution.

Wisconsin

Duwe v. Alexander, 490 F. Supp. 2d (W.D. Wisc. 2007): The district court 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 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.

Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) cert. denied 131 S. Ct. 2872 (2011): A sitting judge who wished to state his affiliation with a political party, endorse partisan candidates for office, and personally solicit campaign contributions brought challenge to three provisions of the Wisconsin Code of Judicial Conduct. Applying strict scrutiny the Seventh Circuit affirmed the district court’s holding that the ban on party membership violated the First Amendment. However, the court reversed the lower court’s finding that the state’s ban on endorsing partisan candidates was unconstitutional. The Seventh Circuit employed a balancing test, rather than strict scrutiny, and followed cases prohibiting public employees from engaging in political activities. Finally, the court applied less than strict scrutiny to the state’s solicitation ban and reversed the district court’s conclusion that the ban unconstitutional, finding instead that the ban was closely drawn to further the state’s interest in preserving impartiality and preventing corruption. Four judges joined an opinion dissenting from the denial of petition for rehearing en banc, arguing that the court should have applied strict scrutiny to conform with White and its progeny in other circuits. Siefert v. Alexander, 619 F.3d 776 (7th Cir. 2010) (Rovner, CJ, dissenting from denial of rehearing en banc).

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