2006 Judicial Election Litigation: A Post-White Update
Raftery, William E., Justice System Journal
The 2006 election cycle was not the first in the world after Republican Party of Minnesota v. White, the 2002 decision in which the U.S. Supreme Court struck down state canons prohibiting a judicial candidate from "announc[ing] his or her views on disputed legal or political issues" (White, at 770). However, 2006 was the election cycle in which much of White came into its own, both as a matter of litigation and as a matter of political impact. Seven cases, including two that pertained to prior elections, were pending at the end of 2006; six of the seven pertained to the use of questionnaires by interest groups directed to judicial candidates.
These questionnaires often provided form answers as to why judicial candidates were declining to answer certain questions. Some candidates declined to answer, but did so on their own terms and for their own reasons. Other candidates declined using the prepared language-language that became in many cases the heart of subsequent lawsuits related to the canons. At first, the language alone proved insufficient to sustain to lawsuits, mostly because of issues related to standing to sue. As the questionnaires became more tailored, and the questioners began to incorporate judicial candidates as co-plaintiffs, standing became less of an issue.
In the oldest pending case, Indiana Right to Life Ine vs. Shepard (2004), the lead plaintiff sent its "2004 Right to Life Judicial Candidate Questionnaire" to all judicial candidates. Only two candidates responded in full, with most other candidates declining to answer, based on either the Indiana Canon of Judicial Conduct or advice from the counsel to the state's Commission on Judicial Qualifications. Plaintiffs sued, seeking injunctions against Indiana's canons forbidding judicial candidates from pledging or promising ("pledges-or-promises clause") anything regarding cases "likely to come before the court." The same canon also prohibited candidates from committing or appearing to do so ("commit clause") with respect to future cases. The rule that required the récusai or disqualification of judges in cases where their impartiality might reasonably be questioned ("recusai clause") was also at issue.
The U.S. District Court for the Northern District of Indiana held in November 2006 that the pledges-or-promises clause did serve a compelling state interest of "impartiality" in the courts (Shepard, at 886), although neither plaintiff nor defendant could agree on the exact nature of that impartiality. However, the pledges-or-promises clause was found to be overly broad and vague, as well as de facto like the announce clause struck down in White. The court did offer a solution: the state could narrow the existing language to prohibit pledges or promises of "certain results in a particular case" (Shepard, at 889).
The district court upheld the canon pertaining to recusal. While both parties agreed the clause served a compelling state interest, the court sided with the defendants and ruled it was narrowly tailored. The court concluded by ordering each party to bear its own costs. An appeal was filed with the Seventh Circuit, but the appeal has been stayed pending a determination by the trial court regarding a motion by plaintiffs for attorneys' fees.
In a similar case, Pennsylvania Family Institute, Inc vs. Black (2005), the court came to slightly different conclusions. Here there also was a survey sent to judicial candidates (the "2005 Pennsylvania Family Institute Judicial Candidate Questionnaire"). However, in the Pennsylvania survey, there was a direct citation to the White case and an encouragement that should candidates feel "fearful" they would run afoul of the canons, they "should seek an advisory opinion" from the "Pennsylvania Judicial Conduct Board or the Pennsylvania Lawyers' Disciplinary Board." Moreover, each question included a "decline to answer*" with the asterisk footnote specifically spelling out that the candidate was not answering because of the Pennsylvania Canon of Judicial Conduct's "pledges-or-promises," "commit," or "recusal" clauses (Black, at 9). …