Suggestions for judicial candidates confronted with voter surveys

Marcia Coyle The National Law Journal

 When Tennessee Court of Criminal Appeals Judge John Everett Williams, who was up for retention election this year, got his questionnaire from the Tennessee Family Action Council soliciting his views on abortion, the death penalty, same-sex marriage, evolution and other issues, he declined to respond, citing Chief Justice John G. Roberts Jr. as setting “the gold standard” on ethical conduct during his U.S. Supreme Court confirmation hearings.

“As did Justice Roberts, I do not wish to hint or signal that I am predisposed to rule on any matter that may come before me as a judge,” wrote Williams in June, one of 64 Tennessee judges receiving the questionnaire.

Questionnaires for judicial candidates have been an “issue” since at least 2000, according to court and election officials, because they raise concerns about sitting judges and judicial candidates campaigning and making promises just as other political candidates do.

But this year, the questionnaires are proliferating, more sophisticated and seemingly coordinated across states.

“My impression is there are more questionnaires and most are coming from what would be considered religious right groups and they are being vetted by the same folks working with each other,” said Cynthia Gray, director of the Center for Judicial Ethics at the American Judicature Society. “I’m not suggesting that’s a bad thing.”

She said that there is probably a “reluctant consensus” that judicial candidates have a First Amendment right to respond to these questions. “However, there are also a lot of people, including incumbent judges and judicial candidates, who don’t necessarily think it’s a good idea.”

Concerns about the questionnaires have reached the National Center for State Courts whose National Ad Hoc Advisory Committee on Judicial Campaign Oversight is preparing to send a letter to state courts, state bar associations and others with recommendations on how to deal with them.

Noting there is “no simple right answer” on how to respond, the advisory committee makes five recommendations:

Don’t be rushed into deciding how to handle the questionnaire: The committee says questionnaires often come just a few days before the “due” date for response.

Never use the preprinted answers on the questionnaire: Simplifying a legal or political issue to a yes/no answer is “inconsistent” with a judge’s role, and there’s no legal obligation to discuss any issue, according to the committee.

Consider responding with a letter that educates voters on the role of judges.

Distinguish general interest, nonadvocacy groups from special interest advocacy groups and be consistent in dealing with their questionnaires.

And never use a judicial canon of ethics to justify a decision not to respond.

That last recommendation is necessary because the result of citing a judicial canon as the reason for no response is a lawsuit, said committee member Roy Schotland of Georgetown University Law Center.

Schotland noted that questionnaires sent to judicial candidates in Tennessee, Kansas and Georgia contain almost identical footnotes to the “decline to respond” option.

The footnote states that that particular response indicates that the candidate would answer the question but for canons of conduct prohibiting pledges and promises, or statements that commit the candidate to positions on issues that may come before the court.

If a judicial candidate does cite those canons, it’s a “pretty fair bet” the state and/or its judicial ethics commission will be sued, agreed Gray. Within weeks of issuing an advisory opinion counseling against answering questionnaires, Gray said, Kansas was sued. And there have been similar suits against Indiana, Alaska, Kentucky, Pennsylvania, Florida and North Dakota, she said.

GUNNING FOR CANONS

The lawyer behind most of those suits is James Bopp Jr. of Bopp, Coleson & Bostrom of Terre Haute, Ind., general counsel to the National Right to Life Committee and the victorious attorney in Republican Party of Minnesota v. White, 536 U.S. 762 (2002).

In White, the U.S. Supreme Court held that the so-called “announce clause” of the Minnesota judicial code, which prohibited judicial candidates from stating their views on legal issues within the province of the court for which they were running, violated the First Amendment.

Bopp confirms that he and his clients, relying on White, have been filing suits based on judges’ responses that they can’t answer the questionnaires because of judicial canons. And they have been remarkably successful.

“We’ve challenged a number of canons,” he said, including those prohibiting judges from making campaign pledges and promises, and those prohibiting judges from committing themselves to certain positions once they are on the bench.

“The regulators and/or the courts in interpreting these clauses were prohibiting judges from announcing their views. My view is that’s just cut and dry. The Supreme Court said you can announce your views and they can’t prohibit it through some other clause.”

Bopp also believes recusal and solicitation clauses are vulnerable to First Amendment attack and he is waging those attacks in the Kansas lawsuit.

A federal trial judge recently issued a temporary injunction in the Kansas suit after finding that the plaintiffs are substantially likely to succeed on the merits of their claim that the pledge and promise and commit clauses unconstitutionally chill a substantial amount of protected speech.

The court also found that plaintiffs are substantially likely to show that the clause barring solicitation of campaign funds is underinclusive and fails to address problems of partiality that are inherent in a system of judicial elections. However, the court rejected the plaintiffs’ challenge to the recusal canon.

Recusal should not be required, said Bopp, where a judge has expressed a view on an issue but says he or she can keep an open mind. And solicitation clauses should not be used to bar a judicial candidate from seeking signatures on a nomination petition, he added.

FOOT IN DOOR

On the opposite side of Bopp in the Kansas and Indiana lawsuits is George T. Patton Jr. of the Washington office of Indianapolis’ Bose, McKinney & Evans.

The Kansas case is now pending appeal of the injunction in the 10th U.S. Circuit Court of Appeals. Kansas Judicial Watch v. Stout, No. 06-3290.

In Pennsylvania, a federal district judge dismissed the challenge to the pledge and promise and commit clauses after finding that the plaintiffs had no standing. That case is pending appeal in the 3rd Circuit. Pennsylvania Family Institute v. Black, No. 05-5259.

And a suit in which Bopp successfully challenged those clauses in the Alaskan code of judicial conduct is pending appeal in the 9th Circuit. Alaska Right to Life PAC v. Feldman, Nos. 05-35902, 05-36027.

Patton noted that challenges to those clauses succeeded in Kentucky, which settled the lawsuit after the 6th Circuit denied its appeal of the injunction in that case, and in North Dakota, which decided not to appeal.

In the Indiana case, Patton said, he is awaiting a ruling on his motion to dismiss for lack of standing. The plaintiffs are Indiana Right to Life and an individual who is not a judge or judicial candidate.

Patton said that he spoke to all of the judges who received a questionnaire and they said that despite their First Amendment right to speak on those issues, they chose not to answer. Indiana Right to Life then asked to depose the judges. The trial judge denied his motion for a protective order.

“This is what judges need to know — the goal is to get them under oath and to ask: Did you contact the ethics commission and did the commission tell you not to answer? If there were no canons, would you answer?” said Patton. “They are trying to take a right and make an obligation out of it.”

In 2002, the Supreme Court in its White decision could not have envisioned fallout from its ruling such as judges being deposed, detailed questionnaires being sent by special interest groups and the breadth of the pending legal challenges, said Patton.

“In the White opinion, Justice [Antonin] Scalia makes very clear the distinction between the announce clause and the pledge and promise and commit clauses,” he said. “It shows that once you get a foot in the door, you try to crack the door more widely open.”

And Bopp apparently has a large foot. Next on his list, he said, are First Amendment challenges to state rules prohibiting judicial candidates in nonpartisan competitive and retention elections from identifying their political party preference.

“It’s a real good shorthand for giving your general philosophy,” said Bopp, who recently filed such a lawsuit in Kentucky. “I think stating your party preference is indistinguishable from announcing your views.”

 

 

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