An independent and impartial judiciary is fundamental to the American system of government. At the same time, conveying information to voters about the qualifications of candidates for public office is "at the core of our First Amendment freedoms."1
The tension between these two truisms has been present in judicial elections since judges were first elected in the 1800s. This tension came to a head in 2002 when the U.S. Supreme Court held that a state may not prohibit candidates for judicial office from announcing their views on political and legal issues. In declaring a portion of Minnesota's Code of Judicial Conduct (commonly known as the "announce" clause) unconstitutional, the Supreme Court in Republican Party of Minnesota v. White drastically changed the landscape of state judicial elections across the nation and "casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation."2
While the Washington Code of Judicial Conduct does not contain campaign speech restrictions analogous to the Minnesota announce clause, it does place limits on judicial campaign speech. Its constitutionality may be questionable given the language and analysis contained in White.
In White, the Supreme Court held that a provision in Minnesota's judicial ethics code prohibiting a judicial candidate from "announc[ing] his or her views on disputed legal or political issues" violated the First Amendment. Applying strict scrutiny, the Court accepted that a state has a compelling interest in limiting judicial campaign speech so as to preserve the impartiality and appearance of impartiality of the state judiciary only insomuch as impartiality meant "lack of bias for or against any party to the proceeding."3 Since the announce clause prohibited announcements about issues, not people, the Court held that it did not further a compelling interest and was an improper restriction on speech.
While the White Court explicitly limited its holding to the announce clause, a number of lower federal courts have applied Justice Scalia's language and analysis to invalidate other restrictions on judicial campaign speech and political activity of judges.
In considering what effect White may have on Canon 7 of the Washington Code of Judicial Conduct, one must consider whether a provision that limits campaign or political speech serves a compelling interest and whe-ther it is sufficiently narrow so as not to unnecessarily infringe on speech.4 In In re Kaiser, the Washington Supreme Court, in a matter involving Canon 7, declared that the state had a compelling interest in protecting the good reputation and integrity of the judiciary.5
Accepting that protecting the good reputation and integrity of the judiciary is a compelling state interest, given the language and analysis presented in White, it is open for debate whether the canons are sufficiently narrow in accomplishing this aim. In particular, Section B of Canon 7 contains two clauses that have fallen under scrutiny by courts that have considered them post-White:
(c) Judges and candidates for judicial office should not:
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
(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.6
Courts that have considered the constitutionality of similar clauses have reached differing conclusions. While state courts in New York7 and Florida 8 held that pledges and promises clauses did not violate the First Amendment, federal district courts in North Dakota, Alaska and Kentucky held these clauses to be unconstitutionally overbroad.9
According to the district courts, while a state may have a compelling interest in preventing a candidate from promising to rule a certain way on cases or issues likely to come before the court, the clause contained in the canons under review did not have such limiting language and was therefore facially overbroad. Similarly, the Washington canon prohibits any pledge or promise other than the faithful and impartial performance of the duties of the office.
Theoretically, a judge promising to serve only one term on the bench or to hire members of minority groups as law clerks, could be seen to run afoul with Canon 7. Although these pledges may be innocuous, they are not far removed from promises to be "tough on drunk driving,"10 to help make a community safe from criminals or to limit "frivolous" law suits that cost taxpayers millions of dollars; statements that may well be prohibited under the canons.
Although the "commit clause" of Canon 7 is limited to matters likely to come before the court, Justice Scalia did not give such limiting language much credence: "[L]imiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. . . ."11 Under this logic, the district courts found the commit clauses under review to be overbroad and unconstitutional. It is possible that the Washington canon could be similarly invalidated if challenged.
"White [has] perplexed courts (and candidates) across the nation"12 and given rise to changes to a number of state judicial canons.13 As states grapple with how best to regulate judicial campaigns, candidates for judicial office and special interest groups have been testing how far they can go in spreading their message to voters. Just how to deal with this challenge will be a task faced by the Washington judiciary in 2006 and beyond.
David C. Brody is an associate professor and the coordinator of the Criminal Justice Program at the Washington State University campus in Spokane.
1 Republican Party of Minn. v. White, 536 U.S. 765, 774, 122 S. Ct. 2528 (2002).
2 Richard Briffault, Judicial Campaign Codes After Republican Party of Minnesota v. White, 153 U. Pa. L. Rev. 181, 183 (2004).
3 Id. at 776.
4 In re Kaiser, 111 Wn.2d 275, 759 P.2d 392 (1988). See also Matter of Disciplinary Proceeding Against Sanders, 135 Wn.2d 175, 955 P.2d 369 (1998).
5 The constitutionality of Canon 7 as a whole was not at issue in Kaiser, only the constitutionality as applied to Judge Kaiser's actions.
6 Washington Code of Judicial Conduct, Canon 7(B)(1)(c)(i), (ii).
7 In re Watson, 794 N.E.2d 1 (N.Y. 2003).
8 In re Kinsey, 842 So. 2d 77 (Fla. 2003).
9North Dakota Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021 (D.N.D. 2005); Alaska Right to Life Political Action Committee v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005); Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).
10 In re Kaiser, 111 Wn.2d at 280, 289.
11 White, 536 U.S. at 772.
12 Voting and Democracy: Judicial Elections and Free Speech, 119 Harv. L. Rev. 1133, 1134 (2006).
13 For an excellent, up-to-date discussion of appellate court decisions and changes to state canons, see Cynthia Gray, Developments Following Republican Party of Minnesota v. White (2006), updates on the American Judicature Society Web site.
