The next several posts will be excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.
Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
In the 2002 decision, Republican Party of Minnesota v. White, the United States Supreme Court held unconstitutional a clause in the Minnesota code of judicial conduct that prohibited judicial candidates from announcing their views on disputed legal and political issues. Since that decision, numerous lawsuits have been filed in federal courts challenging restrictions on campaign and political conduct by judges and judicial candidates, and judges have raised constitutional challenges in judicial discipline proceedings. Following is an analysis of the decisions that have reached the merits (many have been dismissed on justicibility grounds) in challenges to the pledges, promises, and commitments clause; the personal solicitation clause; the endorsement clause; restrictions on partisan political activities; and the disqualification requirement.
Pledges, promises, and commitments
There are 2 versions of the pledges, promises, and commitments clause. Canon 3A(3)(d) of the 1990 American Bar Association Model Code of Judicial Conduct provided that “a candidate for a judicial office shall not (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” After the decision in White, the ABA amended the model code to provide that judicial candidates shall not in connection “with cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” The substantive change was the elimination of the “appear to commit” clause in the latter version. When the model code was revised and reformatted in 2007, the pledges, promises, and commitments clause became Rule 4.1A(13).
Challenges to the pledges, promises, and commitments clause arose in the context of whether judicial candidates may answer questionnaires distributed by special interest groups. For example, the questionnaire from the North Dakota Family Alliance asked candidates to indicate whether they agreed with, disagreed with, were undecided about, or refused to respond to the statement, “I believe that the North Dakota Constitution does not recognize a right to abortion.” The cover letter with the questionnaire instructed candidates: “Your responses indicate your current view on the legal issues and do not constitute any pledge, promise, or commitment to rule in any particular way if the legal issue involved comes before you for decision.”
2 federal district courts, sitting in Kentucky and North Dakota, have declared the 1990 version of the pledges, promises, and commitments clause unconstitutional, holding that the state was simply using the clause “as a de facto announce clause” [Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (Eastern District of Kentucky 2004) (preliminary injunction)] and there was “little, if any, distinction” between the clause and the announce clause [North Dakota Family Alliance v. Bader, 361 F. Supp. 2d 1021 (District of North Dakota 2005)].
The 7th Circuit, reviewing a challenge to the Indiana code, and 2 federal district courts, sitting in Pennsylvania and Wisconsin, have upheld the pledges, promises, and commitments clause as narrowly construed to allow judicial candidates to answer questionnaires.
A federal district court in Indiana originally enjoined enforcement of the pledges, promises, and commitments clause but vacated the injunction after the Indiana Supreme Court adopted a version that did not prohibit statements that “appear to commit” candidates. Affirming that decision on appeal in Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011), the 7th Circuit stated:
It is not clear to us that any speech covered by the commits clauses is constitutionally protected, as White I understands the first amendment. How could it be permissible to “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office”? . . .
The 7th Circuit acknowledged that “neither the commits clauses nor the Code’s definitions pin . . . down” what promises are inconsistent with the impartial performance of the adjudicative duties of judicial office, noting that “the principle is clear only in these extremes.” However, the 7th Circuit concluded that advisory opinions are a more appropriate method for clarifying the provision than summary condemnation by a federal court, stating “when a statute is accompanied by an administrative system that can flesh out details, the due process clause permits those details to be left to that system.”
In Pennsylvania Family Institute v. Celluci, 521 F. Supp. 2d 351 (Eastern District of Pennsylvania 2007), the defendants (members of the Judicial Conduct Board and the Office of Disciplinary Counsel) had proffered an interpretation of the clause that prohibited a candidate only from making pledges, promises, or commitments to decide an issue or a case in a particular way and that allowed a candidate to answer the questionnaires sent out by the Pennsylvania Family Institute. Agreeing that that interpretation was reasonable, the federal district court concluded, “it is hard to imagine a restriction more narrowly tailored to Pennsylvania’s compelling interest in protecting the due process rights of future litigants.”
In Duwe v. Alexander, 490 F. Supp. 2d 968 (Western District of Wisconsin 2007), the federal district court held that the pledges, promises, and commitments clause did not prohibit judicial candidates from responding to a questionnaire from Wisconsin Right to Life and was not unconstitutional on its face. The court stated, “whether a statement is a pledge, promise or commitment is objectively discernable,” and “people are practiced in recognizing the difference between an opinion and a commitment.”
After a preliminary injunction enjoining enforcement of the commitments 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 the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court.” In Carey v. Wolnitzek, 614 F.3d 189 (6th Circuit 2010), a suit challenging the new version, the 6th Circuit held that the amended clause was constitutional insofar as it applies to cases or controversies.
By preventing candidates from making “statement[s]” that “commit” them “to rule a certain way in a case [or] controversy,” the clause secures a basic objective of the judiciary, one so basic that due process requires it: that litigants have a right to air their disputes before judges who have not committed to rule against them before the opening brief is read. Whatever else a fair adjudication requires, it demands that judges decide cases based on the law and facts before them, not based on “express . . . commitments that they may have made to their campaign supporters.”
However, the Court stated the clause’s application to issues was materially ambiguous, requiring a remand to the district court. In December 2010, the Kentucky Supreme Court amended the code to adopt the 2007 model code version of the commits clause and related comments.
The 6th Circuit upheld that version. The Court noted that “no one questions that Kentucky may prohibit judges from making commitments to decide specific cases in a certain way” but that the canon does more by also forbidding a judge from making a promise with respect to “issues.” The Court stated that the phrase “inconsistent with the impartial performance of the adjudicative duties of judicial office” “does much to fix the clause’s ‘serious level-of-generality problem,’” by allowing commitments on stare decisis, on the rule of law, on textualism, and so on. The Court acknowledged there was something to the plaintiff’s argument that that narrowing language makes clause unconstitutionally vague because it is impossible to know “what is (and what is not) an issue-based commitment that is inconsistent with the impartial performance of the adjudicative duties of judicial office.’” However, out of “respect for a co-equal sovereign,” it assumed that Kentucky “’will act sensibly and resolve the open questions in a way that honors candidates’ rights under the first amendment’” and decided to “wait and see” if the Commonwealth’s “process  yields greater certainty” and firmer constitutionality.
Since White, state courts and judicial discipline commissions have enforced the pledges, promises, and commitments clause. Rejecting a First Amendment challenge based on White, the New York Court of Appeals censured a judge for pro-prosecutorial rhetoric in his campaign statements.
[Footnote – In the Matter of Watson, 794 N.E.2d 1 (New York 2003). See also In the Matter of Chan, Determination (New York State Commission on Judicial Conduct November 17, 2009) (www.cjc.ny.gov) (agreed admonishment for, in addition to other misconduct, campaign literature that displayed pro-tenant bias); In re McGrath, Determination (New York State Commission on Judicial Conduct February 5, 2010) (www.cjc.ny.gov) (agreed admonishment for, in addition to other misconduct, campaign letter that displayed bias in favor of pistol permit holders).]
Assuming strict scrutiny analysis was appropriate, the Court noted that the pledges or promises prohibition is not a blanket ban because “a judicial candidate may promise future conduct provided such conduct is not inconsistent with the faithful and impartial performance of judicial duties” and “most statements identifying a point of view will not implicate the ‘pledges or promises’ prohibition.” The Court stated that the rule “precludes only those statements of intention that single out a party or class of litigants for special treatment, be it favorable or unfavorable, or convey that the candidate will behave in a manner inconsistent with the faithful and impartial performance of judicial duties if elected.” The Court held that the pledges and promises provision “furthers the State’s interest in preventing party bias and promoting openmindedness, and the appearance of either, because it prohibits a judicial candidate from making promises that compromise the candidate’s ability to behave impartially, or to be perceived as unbiased and openminded by the public, once on the bench.”
Similarly, reprimanding and fining a judge for pro-prosecutorial statements and misrepresentations about her opponent’s judicial action during her election campaign, the Florida Supreme Court rejected her constitutional challenge to the pledges and promises clause. Inquiry Concerning Kinsey, 842 So. 2d 77 (Florida), cert. denied, 540 U.S. 825 (2003). The court stated that “it is beyond dispute” that the clause serves a compelling state interest and held that the restraints were narrowly tailored to protect the state’s compelling interests without unnecessarily prohibiting protected speech, noting that “a candidate may state his or her personal views, even on disputed issues” but that “to ensure that the voters understand a judge’s duty to uphold the constitution and laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress that as judges, they will uphold the law.”