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Media Alerts - Sixth Circuit strikes down canons limiting judicial campaign speech
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October 25, 2016
  Sixth Circuit strikes down canons limiting judicial campaign speech
Case: Winter v. Wolnitzek

Area of law: First Amendment, judicial campaign speech, ethics

Issue presented: Can a state lawfully bar a judicial candidate or judge from endorsing or openly affiliating with a political candidate or party, contributing to political organizations, committing to case rulings, or making misleading or false statements?

Brief summary: In Kentucky, an appointed judge sought to be "re-elected." During her campaign, she promised to work with the legislature to ensure stiff penalties for drug dealers. Similarly, two aspiring judges wanted to hold fund raisers, receive political endorsements, and give speeches in support of their political party. They also wanted to hold leadership positions in their political party. The Kentucky Commissioner notified all three that their actions violated ethics canons. The three candidates challenged the canons on free-speech grounds.

The Sixth Circuit held that clauses restricting campaigning, speeches, false statements, misleading statements, and case "commits" were unconstitutional. But the contributions clause, the endorsements clause, and the leadership clause were narrowly tailored to protect Kentucky's compelling interests and, therefore, were constitutional.

Extended summary: A first-term appointed judge, who was asking voters to "re-elect" her, and two aspiring judges, who wanted their party affiliations known, challenged Kentucky's judicial canons. The canons bar partisan campaigning, partisan endorsements, partisan political contributions, making commitments on cases, and making false or misleading statements.

The appointed judge was advertising her "re-election" campaign, through which she was committing to ensuring that drug dealer received stiff penalties. In a letter from her state's Commissioner, however, she was told that seeking re-election was misleading because she had been initially appointed to her judgeship, not elected. The Commissioner also said that her drug-sentencing commitments were impermissible because her stiff-penalties comment addressed an issue that was likely to come before her in her court.

The two aspiring judges wanted to hold fundraisers, receive endorsements, give speeches to support their political parties, and hold leadership positions within their political parties. Citing bans on these actions in the Kentucky canons, the Commissioner also sent the aspiring judges reprimand letters.

The three candidates sued, arguing that the Kentucky canons violated of their free-speech rights. Because each issue involved free speech, the Sixth Circuit applied a strict-scrutiny analysis.

The Sixth Circuit held that the campaigning clause, which bars political affiliation, and the commits clause, which bans comments on issues likely to come before a court, were both vague, making them unconstitutionally overbroad. And the court found that the speeches clause, which the court believed did both too much and too little to bar judges from making political speeches, was facially invalid.

On the other hand, the contributions clause that bars judges and judicial candidates from seeking election contributions was upheld by the Sixth Circuit because it takes a narrow approach to resolve the state's compelling interest in preventing judicial races as being seen as part of partisan politics and maintaining impartiality. Likewise, the endorsements clause was upheld because it narrowly addresses the state's compelling interest to keep judges from trading political favors, which could lead to the appearance of quid-pro-quo politics.

The leadership clause that prohibits a judge from acting as a political leader was also upheld because a judge or a judicial candidate does not have the fundamental right to lead campaign-donation solicitations, which allows the judge or judicial candidate to assume a powerbroker roll.

The false-statements clause that prohibits a judge from knowingly or recklessly making false statements during a campaign was upheld because the state's compelling interest in preserving public confidence was narrowly met by this canon. Yet the Sixth Circuit did not believe that the appointed judge violated this clause because a common dictionary meaning of "re-elect" supported her word choice.

As for the misleading-statements clause, the Sixth Circuit determined that only a ban on conscious, intentional falsehoods could satisfy strict scrutiny.

Panel: COLE, Chief Judge; SUTTON and COOK, Circuit Judges.

Date of issued opinion: August 24, 2016

Docket numbers: 15-5836/5839/5841

Decided: August 24, 2016

Decision: Affirmed in part, reversed in part, and vacated in part with a remand to the district court for further consideration in part.

Counsel: Jeffrey C. Mando, ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC,
Covington, Kentucky, for Appellants/Cross-Appellees. Mark R. Overstreet, STITES &
HARBISON, PLLC, Frankfort, Kentucky, for Appellants/Cross-Appellees as to all claims except
those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview
Hills, Kentucky, for Appellees/Cross-Appellants. ON BRIEF: Jeffrey C. Mando, ADAMS,
STEPNER, WOLTERMANN & DUSING, PLLC, Covington, Kentucky, for Appellants/Cross-
Appellees. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany
A. Breetz, STITES & HARBISON, PLLC, Louisville, Kentucky, for Appellants/Cross-
Appellees as to all claims except those asserted by Judge Jones. Christopher Wiest, CHRIS WIEST, AAL, PLLC, Crestview Hills, Kentucky, Jack S. Gatlin, GATLIN VOELKER, PLLC,
Ft. Mitchell, Kentucky, for Appellees/Cross-Appellants.

Author of opinion: SUTTON, Circuit Judge.

Case alert author: Peter J. Mancini, Western Michigan University Cooley Law School

Case alert circuit supervisor: Professor Mark Cooney

Link to the case: http://www.opn.ca6.uscourts.go...ns.pdf/16a0206p-06.pdf

    Posted By: Mark Cooney @ 10/25/2016 04:48 PM     6th Circuit  

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