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.
