Howard J. Bashman's appellate columns, etc.

Freeing The Speech Of Candidates For Elected Judicial Office

By Howard J. Bashman
Tuesday, June 11, 2002
Sometime within the next three weeks the Supreme Court of the United States will announce its ruling in Republican Party of Minnesota v. Kelly, No. 01-521 (U.S.). That case arose when an attorney running for election to the Supreme Court of Minnesota brought a First Amendment free speech challenge against a regulation that prohibits any candidate for judicial office from "announc[ing] his or her views on disputed legal or political issues."

Avid U.S. Supreme Court watchers and First Amendment experts expect that the Court will strike down the regulation. Such a ruling would directly impact the law of Pennsylvania, because Canon 7(B)(1)(c) of Pennsylvania's Code of Judicial Conduct contains the exact same prohibition. Perhaps recognizing this, the organization Pennsylvanians for Modern Courts, which favors abolishing judicial elections in Pennsylvania, has filed an amicus brief supporting the regulation that is being challenged in the Kelly case.

In my opinion, the regulation that prevents judicial candidates from announcing their views on disputed legal or political issues should be struck down for two related reasons. First, the regulation is an impermissible content-based restriction on the very type of political speech that is at the core of the First Amendment's protection of the freedom of speech. Second, the regulation is not necessary to protect a state's legitimate interest in having judges who will decide cases based on the applicable law and facts.

A regulation that prevented a candidate for mayor, governor, or any other elected non-judicial office from announcing his or her views on disputed legal or political issues would clearly be unconstitutional. In Pennsylvania, as in other states that pick judges through public elections, the electorate needs access to information necessary to make an informed decision about which judges to elect. The regulation pending before the U.S. Supreme Court for review currently deprives Pennsylvania's voters of precisely this information.

One reason why states may choose to make judges answerable to the electorate, as Pennsylvania has done, is that state court judges play a much greater law-making role than do federal judges. In particular, state court judges determine and shape what is known as the "common law." The common law, in essence, is the body of law that governs in the absence of any binding statutory or constitutional provision.

Competing candidates for election to a judicial post likely have divergent views on subjects as varied as tort reform, victims' rights, the role of punitive damages, the role of class actions, the role of legislative history in statutory interpretation, and whether Pennsylvania's Constitution should be construed to provide broader individual rights than the United States Constitution. These issues are subjects that a candidate for elected judicial office in Pennsylvania would currently be prohibited from discussing during his or her campaign. How can voters make an informed decision about which judge would best reflect the electorate's beliefs on these controversial issues if the candidate is prohibited from stating his or her views about them?

Attorney Erik S. Jaffe, a Washington, D.C.-based appellate attorney who clerked for U.S. Supreme Court Justice Clarence Thomas, submitted a very persuasive amicus brief in the Kelly case on behalf of elected appellate judges in other states who believe that the regulation is unconstitutional. Jaffe's brief explains:

"While judicial candidates should not be allowed to promise to violate their oaths - either by disobeying binding law or by refusing to consider the arguments of the parties - they should be protected by the First Amendment when expressing their views regarding issues on which jurists might differ in the exercise of their lawful discretion and judgment. For if reasonable jurists might differ over matters ultimately within their discretion, then the voters might likewise differ over who they want exercising discretion over such issues. The electorate thus has a vital constitutional interest in knowing the views of judicial candidates on issues over which they will have discretion, and the candidates have a vital constitutional interest in seeing that their views are conveyed to the public accurately and as the candidates think best."

Not only does Pennsylvania's regulation deprive voters of critical information; it also can greatly disadvantage certain candidates for judicial office. Consider, for example, if a sitting judge were running for a different judicial office opposed by a lawyer who had never been a judge. The lawyer would be prohibited from explaining his or her views on disputed legal or political issues, while the judge could simply refer any interested person to the judge's prior judicial writings, which certainly would show the judge's views on various disputed legal or political issues.

This same problem could also arise in a contested election between two sitting judges who are vying for the same higher judicial post. One judge may have written opinions that address a particular disputed legal issue, while the other may not have. The judge whose prior judicial writings were silent on the issue would be at a great disadvantage, unable to tell the voters how, if at all, his or her views differed from the other candidate's.

My research has uncovered only a single legal challenge to Pennsylvania's version of the regulation at issue in Kelly. In Stretton v. Disciplinary Board of the Supreme Court of Pennsylvania, 944 F.2d 137 (3d Cir. 1991), a lawyer running for a Common Pleas Court judgeship raised a First Amendment challenge to the regulation that prevented him from announcing his views on disputed legal or political issues.

The Third Circuit, in an opinion written by Senior Circuit Judge Joseph F. Weis, Jr., and joined in by Circuit Judges Robert E. Cowen and Richard L. Nygaard, judicially narrowed the regulation to prohibit only the announcement of a position on an issue that may come before the court for resolution. So narrowed, the Third Circuit panel concluded that the regulation was lawful under the First Amendment.

The Third Circuit's belief that it was proper to judicially narrow the challenged regulation to save it from constitutional challenge has received persuasive criticism from Circuit Judge Richard A. Posner writing for the U.S. Court of Appeals for the Seventh Circuit in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 230 (7th Cir. 1993).

Judge Posner's opinion notes that the American Bar Association, which had originally issued the Model Code of Judicial Conduct that included the regulation at issue in Kelly, dropped the prohibition on announcing views on disputed legal or political issues from the Code in 1990. Why? The ABA thought the prohibition was an overly broad restriction on speech! And I agree. In my view, even the Third Circuit's "narrowing" of Pennsylvania's regulation does not cure its unconstitutionality. In the United States of America, there is no issue incapable of coming before a court for resolution.

Of course, if the U.S. Supreme Court strikes down as unconstitutional regulations that prohibit any candidate for judicial office from "announc[ing] his or her views on disputed legal or political issues," candidates for judicial office still will be unable to promise that they will deliver specific rulings if elected. A separate provision will remain in effect that prohibits judicial candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." While this separate provision may present its own free speech-overbreadth concerns, it is not being challenged in the Kelly case.

A judicial candidate's pledge or promise -- a candidate who says "if you elect me, I will vote to overturn every award of punitive damages" -- would improperly indicate that the candidate if elected would refuse to consider the facts and the applicable law in particular cases that later come before him or her. But a candidate should be able to say -- assuming that he or she believes it -- that punitive damages are being awarded far too freely, or in far too many cases. That remark would not disqualify a candidate from later judging a punitive damages case, just as a judge who expressed those same views in an earlier dissent would not be prohibited from sitting on the next punitive damages case to come before him or her.

A large part of the reason why there is such little interest in judicial election contests in Pennsylvania, and so small of a voter turnout to the polls on judicial election day, is that the citizens of this Commonwealth are being deprived of their right to learn the views of judicial candidates on disputed political and legal issues. The Supreme Court of the United States should strike down that prohibition as violative of the First Amendment, because it improperly infringes on the free speech rights of candidates to provide voters with much needed information.

In the post-Kelly world that I envision, candidates for elected judicial office will still be prohibited from pledging how they will rule in specific cases or on specific issues. But the candidates will be able to make their views on disputed legal and political issues known to the electorate, so that voters can finally cast meaningful votes in Pennsylvania's judicial elections.

If you would like to access more information about the Kelly case, please visit my appellate Web log, http://appellateblog.blogspot.com/. There you will find links to briefs filed in the case, a link to the U.S. Supreme Court oral argument transcript, and links to other sources of information pertaining to this case.

This article is reprinted with permission from the June 11, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.