Case-Law Following Republican Party of Minnesota V. White
Gray, Cynthia, Judicature
In 2002, in Republican Party of Minnesota ? White,' the United States Supreme Court held unconstitutional a clause in die Minnesota code of judicial conduct diat prohibited judicial candidates from announcing their views on disputed legal and political issues. Since diat decision, numerous federal lawsuits have challenged restrictions on campaign and political conduct by judges and judicial candidates. Following is an analysis of the decisions that have reached the merits in challenges to the pledges, promises, and commitments clause; die personal solicitation clause; the endorsement clause; and restrictions on partisan political activities.
Pledges, promises, and commitments
There are two versions of the pledges, promises, and commitments clause. The pre- White version prohibits statements that "appear to commit" the candidate. Alter White, the American Bar Association amended the model code to delete that phrase as well as re-structure the provision. Challenges to the pledges, promises, and commitments clause have usually arisen in the context of whether judicial candidates may answer questionnaires distributed by special interest groups.
Federal courts in Kentucky and North Dakota have declared the preWliile version of the clause unconstitutional,- at least under preliminar}' injunction standards, holding that the state was simply using die clause "as a de facto announce clause" (Family Trust Foundation) and there was "little, if any, distinction" between the clause and the announce clause (North Dakota Family Alliance).
After a preliminary injunction enjoined enforcement of the Kentucky clause in 2004, the Kentucky Supreme Court adopted a revised version that provided: "A judge or candidate for election to judicial office . . . shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing die judge or candidate to ride a certain way on a case, controversy, or issue that is likely to come before the court." In a suit challenging the new version, the federal cotirt upheld the clause/ concluding that commitments by a judicial candidate to rule in a particular way on issues or cases harm the compelling state interest in preservingjudicial impartiality.
Federal courts in Indiana, Pennsylvania, and Wisconsin have narrowly construed the post-Wiiite version of the pledges, promises, and commitments clause to allow judicial candidates to answer questionnaires that call for the candidate's personal views on disputed legal or political issues and upheld the clause as tailored to die state's compelling interest in protecting the due process rights of litigants. '
Two federal courts of appeal, in cases from Georgia and Minnesota, and three federal district courts, in cases from Kansas, Kentucky, and Wisconsin, have held unconstitutional die prohibition on judicial candidates personally soliciting campaign contributions.5
The federal court in Georgia was skeptical that the need of judicial candidates for financial support to run successful campaigns necessarily meant that they would be partial if elected (Weaver). The federal court in Wisconsin blamed any impartiality concerns on the state's decision to elect judges, maintaining diat only "public financing or a change in die mediod of judicial selection" could eliminate impartiality or the appearance of impartiality (Siefert).
The Kansas and Kentucky federal courts stated that, although the code's requirement that a judicial candidate use a committee to solicit contributions eliminates "direct shakedowns by a corrupt judicial candidate," blatant promises of a quid pro quo were already prohibited by criminal statutes and other provisions of die code (Carey, Yost). Moreover, the courts concluded, "while it may be less difficult for a solicitée to decline a request for a contribution when the request is made by a committee, 'the state does not have a compelling interest in simply making it more comfortable for solicitées to decline to contribute to judicial campaigns'" (Yost, quoting Carey). …