Wednesday, August 24, 2016
Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections
In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.
The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar. In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive. The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.
In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:
- The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad. Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party. The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
- The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored. The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
- The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld. Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo. The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
- The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional. Again, the court stressed the quid pro quo nature of endorsements.
- The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser. The fundraiser, the court reasoned, brings the judge's impartiality into question.
- The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result. The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates. However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional. The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
- The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded. This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be. The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."
The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns. The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results. It does seem that the court will be visiting this terrain again.