Federal Case Review: Pledges and Promises, Solicitations, and Public Endorsement Clauses
August 31, 2009 by Adrienne Meiring
The U.S. Supreme Court’s acceptance that states have a vital interest in maintaining judicial integrity has stoked some scholars’ hopes that other restrictions on judicial campaign conduct will also pass constitutional muster. Of particular interest are the provisions in many state judicial codes, Indiana included, which prohibit judicial candidates from making “pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office”, which do not allow judicial candidates to “personally solicit or accept campaign contributions other than through a campaign committee,” and which do not allow candidates to “publicly endorse or oppose a candidate for public office.” See Rule 4.1(A)(4), (8), (13), Indiana Code of Judicial Conduct (2009).
Popularly known as the “pledges and promises,” “solicitation,” and “public endorsement” clauses, these provisions recently have come under legal attack as alleged violations of a candidate’s First Amendment rights. Here is the current status of those federal lawsuits:
Kansas Judicial Watch v. Stout, 562 F.3d 1240 (10th Cir. 2009)
Tenth Circuit dismissed as moot plaintiffs’ constitutional challenge to the pledges and promises clause and the solicitation clause, in light of the Kansas’ Supreme Court’s adoption of a new code of judicial conduct revising the challenged portions.
Wersal v. Sexton, 607 F. Supp.2d 1012 (D. Minn. 2009)
District Court upheld solicitation and public endorsement clauses of Minnesota judicial canons but dismissed as unripe plaintiff’s challenge to a prohibition on soliciting funds for a political organization.
Florida Family Policy Council v. Freeman, 561 F.3d 1246 (11th Cir. 2009)
Eleventh Circuit determined that plaintiff lacked standing to challenge the pledges and promises clause and disqualification canon, as plaintiff failed to demonstrate that a decision in its favor would redress the injury since plaintiff only contested the judicial canons and not a general disqualification statute passed by the Florida legislature.
Bauer v. Shepard, 2009 WL 1941243 (N.D. Ind., July 7, 2009)
In the first lower court decision in this subject since the U.S. Supreme Court handed down Caperton v. A.T. Massey Coal Co., 2009 WL 1576573 (June 9, 2009), U.S. District Judge Theresa Springmann upheld the constitutionality of the pledges and promises, solicitation, partisan activities, and disqualification clauses of Indiana’s revised judicial code of conduct. Relying, in part, on Caperton, Judge Springmann pointed out that the Caperton case highlights that judicial elections and judicial conduct can have important due process implications and noted that similar due process concerns are at play in the Indiana Constitution. She then determined that Indiana’s new judicial conduct rules are narrowly tailored to serve the state’s interest in fairness, impartiality, and integrity, in addition to the principles of justice and the rule of law, since “only speech that is inconsistent with impartiality is prohibited.” Although she found that the pledges, promises, and commitments prohibition in the 2009 Indiana Code of Judicial Conduct generally does not prohibit judicial candidates from answering Indiana Right to Life’s 2008 questionnaire, Judge Springmann further wrote that, “[T]he assessment could change depending on how questions are worded and framed, what answers questions are intended to elicit, and what responses judicial candidates make.”
Siefert v. Alexander , 597 F. Supp. 2d 860 (W.D. Wis. 2009)
District Court decided that public endorsement and solicitation clauses and prohibition against party affiliation in Wisconsin’s court rules violate the First Amendment.
O’Nell v. Coughlan, 511 F.3d 638 (6th Cir. 2008)
Sixth Circuit held that the district court should have refrained from exercising jurisdiction pursuant to the Younger abstention doctrine and dissolved an injunction that enjoined enforcement of three provisions of the Ohio Code of Judicial Conduct relating to judicial campaign conduct.
Carey v. Wolnitzek, 2008 WL 462786 (E.D. Ky. Oct. 15, 2008)
District Court held that the pledges and promises clause is constitutional, the solicitation clause is unconstitutional, and a provision restricting partisan activity by judges and judicial candidates also is unconstitutional.
Wolfson v. Brammer, 2008 WL 4372459 (D. Ariz., Sept. 23, 2008)
District Court denied plaintiff’s request to enjoin enforcement of the pledges and promises, solicitation, and public endorsement clauses of Arizona’s Code of Judicial Conduct, finding that plaintiff failed to show a probability of success on the merits and failed to demonstrate that he would suffer irreparable injury without the injunction.
Alaska Right to Life Political Action Committee v. Feldman, 504 F.3d 840 (9th Cir. 2007)
Plaintiffs’ pre-enforcement challenge to the Alaska Judicial Code’s prohibitions on judicial campaign conduct was unfit for review under ripeness doctrine.
Pennsylvania Family Institute, Inc. v. Black, 489 F.3d 156 (3rd Cir. 2007)
Third Circuit determined that plaintiff lacked standing to challenge Pennsylvania’s Code of Judicial Conduct, as it failed to produce a willing speaker.
Pennsylvania Family Institute, Inc. v. Celluci, 521 F. Supp.2d 351 (E.D. Pa. 2007)
District Court determined that Pennsylvania’s pledges and promises clause, narrowly construed, is constitutional.