Keeping Mud off the Bench: The First Amendment and Regulation of Candidates' False or Misleading Statements in Judicial Elections

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INTRODUCTION

In the last fifty years, perhaps no facet of American constitutional democracy has changed more than campaigns for judicial office. Judicial elections long stood in sharp contrast to elections for executive, legislative, or administrative office. In keeping with the judicial role of impartial adjudicator, judicial candidates historically avoided political controversy and campaigned on "polite promises of integrity." (1) During the late twentieth century, judicial elections were transformed from their more humble, less contentious beginnings into elections virtually indistinguishable, in both financial scope and campaign conduct, from other political campaigns.

Campaign donations and expenditures in judicial elections have risen at exponential rates across the country. In the Los Angeles area, campaign expenditures in the average superior court race increased twenty-two fold from 1976 to 1994. (2) In 1980, a campaign for an Ohio Supreme Court seat cost $100,000; (3) in 2000, a campaign for a seat on the same court cost an estimated $9 million. (4) In Michigan, the campaigns for three Supreme Court seats in the 2000 election cost at least $16 million each. (5)

These rising costs fuel concerns that campaign contributors are seeking the best justice that money can buy. One national publication has noted that "an influx of money from the tobacco industry, casinos, insurance companies, doctors and businesses" finances many judicial campaigns. (6) In her 2000 reelection bid, incumbent Justice Alice Robie Resnick of the Ohio Supreme Court received eighty-four percent of her total campaign contributions, totaling $329,175, from Ohio trial lawyers. (7) The other three candidates in the race for Resnick's Supreme Court seat received only $55,000 combined from Ohio trial lawyers. (8) In the late 1980s, Texaco representatives made campaign contributions of $72,700 to seven Texas Supreme Court justices while the appeal from the $11 billion Pennzoil lawsuit against Texaco was pending before the court. (9) Pennzoil's lawyers responded by contributing more than $315,000 to justices on that same court. (10) Most striking of all, a number of the justices who received campaign contributions from both Texaco and Pennzoil were not even facing reelection. (11)

Not only have recent years witnessed an explosion of campaign expenditures and vast individual donations by parties hoping to influence judicial decisionmaking, but also the conduct of judicial candidates and supporters during campaigns has changed since the days of "polite promises of integrity." The influx of money has fueled an increase in political attack advertisements, which utilize the skills of political consultants to craft slickly packaged, memorable images of both candidates and opponents. In a 1984 race for the Louisiana Supreme Court, Justice John Dixon's opponent ran the following newspaper advertisement, accompanied by a drawing of a large dagger:

   JOHN DIXON DOESN'T THINK 20 STAB WOUNDS ARE ENOUGH.... On appeal to the
   Louisiana Supreme Court, six Justices agreed with the death sentence. ONLY
   JOHN DIXON DIDN'T.... HE DIDN'T THINK MORE THAN 20 TIMES WAS ENOUGH TO
   JUSTIFY THE DEATH PENALTY. WHAT ABOUT YOU? THERE COMES A TIME TO DRAW THE
   LINE. THE TIME IS NOW. (12)

During the 2000 campaign, Citizens for a Strong Ohio, a pro-business organization, accused Justice Alice Robie Resnick of the Ohio Supreme Court "of having an anti-business bias, encouraged by the donations of trial lawyers." (13) In one television advertisement that Citizens for a Strong Ohio sponsored, Justice Resnick was depicted "in black robes switching a vote after someone dumped bags of money on her desk. Another show[ed] a blindfolded lady justice peeking at a pile of money on her scales, before she and the scales fall over and break." (14) Justice Resnick was not defenseless in her reelection campaign, however; Ohio unions, trial lawyers, and teachers' organizations each ran advertisements attacking her opponent, Judge Terrance O'Donnell. One pro-Resnick advertisement told voters that Judge O'Donnell "once ruled in favor of the employer in the case of a factory worker dismembered and killed by an unsafe machine." (15)

The explosion of campaign expenditures and the proliferation of attack advertisements demonstrate the dilemma facing the thirty-nine states that currently elect judges. (16) States that elect judges grapple with "the conflict between the needs to preserve judicial neutrality and to maintain public respect for the legal system, and the political realities of election campaigns." (17) That is, how should a judicial candidate campaign during a popular election? In the context of judicial elections, a state's interests in preserving judicial integrity and impartiality and in a potential litigant's right to a fair and impartial judiciary can conflict with a candidate's right to free speech. These potentially conflicting interests and rights demonstrate the need for "compromises between political reality and the aim of maintaining the appearance of judicial impartiality." (18)

In both the role it performs and the public image it seeks to maintain, the judiciary differs from the executive and legislative branches. Judges must administer the law objectively and independently, "serv[ing] as impartial arbiters beholden only to their duty to dispense justice." (19) Popularly elected officeholders cannot serve on a purely impartial and independent basis and hope to remain in office. Because they are elected, executive officers and legislators must at all times consider their constituencies' views when performing the duties of office. (20) An elected judiciary, however, must maintain not only judicial impartiality and independence, but also a level of public trust and confidence higher than that reserved for other political branches. If the citizenry sees judges as politicians first, concerned with reelection and the appeasement of campaign contributors in every decision they make, the public will question the validity and legitimacy of judicial decisions and, in fact, the judiciary as a whole. If the judiciary must both function differently and be perceived differently than the executive and legislative branches, then judicial candidates must campaign differently than executive and legislative candidates.

The campaign finance issue in judicial elections clearly poses a significant threat to the real and perceived integrity and impartiality of the judiciary. (21) The public belief that judicial elections produce "[t]he best justice(s) money can buy" (22) does not inspire trust and confidence in elected judiciaries, and many commentators have discussed the causes of, and possible solutions to, the influx of big money into once-modest state judicial campaigns. (23) Although campaign finance poses a great threat to judicial impartiality and independence, judicial candidates' conduct further weakens the perceived integrity of judicial institutions. Attack advertisements and campaign misrepresentations erase what line remains between politician and judge, and such conduct has only recently received attention from public officials, academics, and the media. (24) The citizenry cannot conceivably maintain faith in the judiciary's impartiality and integrity if it witnesses the slick, misleading advertisements and public mudslinging that candidates use to reach the bench every election year.

The growth of campaign expenditures and the use of thirty-second television and radio advertisements have forced states to restrict candidates' knowing misrepresentations in campaign communications to preserve the perceived integrity of the judiciary. If judicial candidates knowingly misrepresent their opponents' records and positions in a culture that pays little attention to the substance of judicial campaigns, "[t]he dignity [of the judiciary] ... will go the way the confidence of the American public has gone with other branches of government populated by politicians." (25) Punishing judicial candidates for their knowing misrepresentations is one way to distinguish judicial candidates from other politicians, thereby preserving public faith in the judiciary.

For example, on July 21, 2000, the Alabama Judiciary Inquiry Commission (JIC) began disciplinary proceedings against Alabama Supreme Court Justice Harold F. See, Jr., for statements Justice See's campaign disseminated during the 2000 primary election for chief justice of the Alabama Supreme Court. (26) During the primary campaign against Judge Roy S. Moore, Justice See's campaign ran advertisements that questioned Judge Moore's record, especially his leniency towards drug dealers. (27) The JIC claimed that Justice See violated Canon 7B(2) of the Alabama Canons of Judicial Ethics, which stated in relevant part:

   [A] candidate shall not ... distribute false information concerning a
   judicial candidate or an opponent, either knowing the information to be
   false or with reckless disregard of whether that information is false; or
   ... distribute true information about a judicial candidate or an opponent
   that would be deceiving or misleading to a reasonable person. (28)

After the disciplinary proceeding against him began, Justice See and others brought suit in the federal district court for the Middle District of Alabama, seeking an injunction against the JIC on the ground that Alabama's Canon 7B(2) violated First Amendment rights of free speech. (29) The district court granted Justice See's motion and enjoined enforcement of Canon 7B(2) on the ground that the canon "is not narrowly drafted and ... unnecessarily infringes upon ... First Amendment rights." (30) The district court in Butler v. Alabama Judicial Inquiry Commission (Butler I) relied heavily on In re Chmura, (31) a 2000 Michigan Supreme Court decision that struck down Michigan's prohibition on judicial candidates' false or misleading communications for overbreadth and vagueness. (32)

The Eleventh Circuit, doubting the propriety of the district court's injunction against an ongoing state ethics proceeding, certified three questions to the Alabama Supreme Court concerning the procedural protections afforded Justice See in the proceedings. (33) In response, the Alabama Supreme Court reversed an earlier position, cited the district court opinions and Chmura approvingly, and revised Alabama Canon 7B(2) to prohibit the dissemination of "demonstrably false information concerning a judicial candidate or an opponent `with "actual malice"--that is, with knowledge that it is false or with reckless disregard of whether it is false or not.'" (34) In light of these changes, the Eleventh Circuit found that Justice See's First Amendment claims were moot, vacated the district court's preliminary injunction, and abstained from deciding Justice See's other claims in light of the ongoing JIC proceedings. (35)

Although the Eleventh Circuit's final decision in the Butler litigation effectively ended the controversy over Alabama's regulation of false statements by judicial candidates, the fight over the constitutionality of similar restrictions in other states has just begun. The Butler case promises to be one of the first of many constitutional challenges in federal courts to state restrictions on misrepresentations by judicial candidates. Recent contentious judicial elections have increased the demand for regulation of candidates' conduct, (36) and the creation of new restrictions and increased enforcement of existing regulations inevitably will bring more attention to the constitutional conflict over candidates' speech restrictions.

In this Note, I argue that restrictions on knowing misrepresentations, as set forth in Canon 5A(3)(d) of the American Bar Association's 1990 Model Code of Judicial Conduct, (37) are both constitutional and of vital importance. Courts have long recognized that a state has a compelling interest in maintaining the …