Judicial Candidates Could Face Broader Speech Limits

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By Kimberly Robinson

Jan. 29 — A unanimous en banc Ninth Circuit decision is the first sign that the U.S. Supreme Court's decision in Williams-Yulee v. Fla. Bar—upholding Florida's personal solicitation ban on judicial candidates—could have a wide-ranging impact, Matthew Menendez of the Brennan Center for Justice told Bloomberg BNA Jan. 28.

Menendez was referring to a Jan. 27 decision from the U.S. Court of Appeals for the Ninth Circuit that upheld several of Arizona's restrictions on judicial candidates' speech, Wolfson v. Concannon, 2016 BL 21068, 9th Cir. (en banc), No. 11-17634, 1/27/16 .

The Brennan Center filed an amicus brief in Wolfson supporting the restrictions.

Williams-Yulee v. Fla. Bar, 83 U.S.L.W. 4269, 2015 BL 123637 (U.S. April 29, 2015) , “is in tension with the Supreme Court’s series of decisions striking down campaign regulations that impact speech,” Menendez said.

But it's a recognition that “judges are not just politicians in robes.”

While Menendez said it was hard to predict if the Ninth Circuit's Wolfson decision will embolden states to put more restrictions on judicial candidates, he said one thing is certain: “existing rules of judicial conduct are much safer than they were a year ago,” before Williams-Yulee was handed down.

‘Mixed Bag.'

The U.S. and Bolivia are the only two countries that have judicial elections, Scott Greytak of Justice at Stake told Bloomberg BNA Jan. 28.

Justice at Stake also filed an amicus brief in the Ninth Circuit in support of the restrictions.

Attorneys at the Bopp Law Firm, who represented the candidate challenging the restrictions, said they were not able to comment on the case.

While not all states allow judicial elections, more than half do, Greytak said.

In “39 states at least some judges face some kind of election,” Menendez said. He added that “22 states use competitive elections to fill state supreme court seats.”

Greytak said that all 39 states have some restrictions on judicial candidates' speech. But he said the extent to which they limit that speech is really a “mixed bag.”

“Rules regarding judicial elections are in most cases established by state supreme courts,” through state codes of judicial conduct, “and in some cases adopted by state legislatures,” Menendez said.

“Most of these rules are modeled on American Bar Association guidelines, though there is some variation between states,” he said, referring to the ABA's Model Code of Judicial Conduct.

Greytak said while some states regulate judicial candidates' speech more strictly than others, Arizona—whose restrictions were upheld in the Ninth Circuit case—is “at the top of that list.”

Broad Sweep

Neither Greytak nor Menendez could predict with confidence whether Wolfson would spur more restrictions.

But Greytak said that the logic of Wolfson and Williams-Yulee could extend to all sorts of potentially conflicting activities.

The Supreme Court in Williams-Yulee held states could restrict judicial candidates' speech by the slimmest majority: 5-4, Greytak said.

Menendez noted that it was just the second time Chief Justice John G. Roberts Jr. “had joined the more liberal justices against the four conservatives—the first decision upheld the constitutionality of Obamacare,” in Nat'l Fed'n of Indep. Bus. v. Sebelius80 U.S.L.W. 4579, 2012 BL 160004 (U.S. June 28, 2012) .

But in Williams-Yulee, Roberts, writing for the majority, said that judges are different than politicians.

The Williams-Yulee court said that protecting the public's confidence in the impartiality of the judiciary was so important that it could withstand the most exacting scrutiny, Greytak said.

If that's the starting point, all kinds of activities could be fair game for state-imposed restrictions, Greytak said.

Heart of the Problem

But both Greytak and Menendez noted at least one limit to that potentially broad sweep.

“We know, from Republican Party of Minnesota v. White [536 U.S. 765 (2002)], that the Supreme Court was not willing to uphold judicial conduct regulations that limited what judicial candidates could discuss about political issues,” Menendez said.

For example, states probably can't stop a judicial candidate from saying they support a clean environment or the Second Amendment, Greytak explained.

But there “are more limited restrictions on speech that have been upheld against First Amendment challenge, such as rules prohibiting candidates pledging or promising to rule in a particular way if elected,” Menendez said.

Greytak wondered, though, if legislation or litigation over restrictions on judicial candidates would get that far.

Most people who are concerned about this issue prefer to go to the heart of the problem: judicial elections themselves, Greytak said.

There are millions of dollars in some judicial elections, Greytak said. “That's a serious problem.”

Rather than addressing the problem tangentially, it might be better to take it head-on by completely eliminating judicial elections, Greytak suggested.

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com