I Stood Up For The Constitution, And Won

I am thrilled to announce that the United States District Court for the Sixth Circuit has affirmed the decision in my case wherein I challenged the Canons of Judicial Ethics in 2006 as violating the First Amendment to the U.S. Constitution.

Here are a few highlights from today's decision, Carey vs. Wolnitzek:

Background

In June 2006, Marcus Carey, then a candidate for a seat on the Kentucky
Supreme Court, filed a complaint in federal district court claiming that the party
affiliation, solicitation and commits clauses violated his speech and associational rights
under the First and Fourteenth Amendments of the U.S. Constitution.

Carey complained that he wanted to disclose his party status, yet he feared the
party affiliation clause barred him from doing so. He wanted to ask for campaign
contributions by signing fund-raising letters, yet he feared the solicitation clause barred him from doing so. And he wished to respond to a judicial questionnaire distributed by Kentucky Right to Life, raising questions for the candidates about their judicial philosophy and about their positions on specific issues, yet he feared the commits clause barred him from doing so. He asked the court to declare the clauses unconstitutional on their face and to enjoin their enforcement.

[A]spects of the canon at least chill, and in some instances prohibit, these forms of
communication, and in the course of the November 2006 election, at least until the entry of the October 2006 injunction, Carey censored himself on each topic.

On The Disclosure Of Party Affiliation:

“[I]t is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign,” ("The State’s fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976).

Voters often resort to a variety of proxies in selecting judges and other office holders, some good, some bad. And while political identification may be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-too familiar formula of running candidates with familiar or popular last names. In that respect, this informational ban increases the likelihood that one of the least relevant grounds for judicial selection—the fortuity of one’s surname—is all that the voters will have to go on. As the district court correctly concluded, this clause violates the First Amendment on its face.

On The Issue Of Fundraising

Prohibiting candidates from asking for money suppresses speech in the most conspicuous of ways and, in the process, favors some candidates over others—incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders

On The Voters "Right To Know"

Kentucky has chosen to elect its judges in competitive elections and must abide by some of the risks that go with that decision.  While we do not question Kentucky’s right to select judges through popular elections, the Commonwealth cannot exempt itself from the demands of the First Amendment in the process. See id. at 788 (majority); Geary v. Renne, 911 F.2d 280, 294 (9th Cir. 1990) (en banc) (Reinhardt, J., concurring) (“The State . . .cannot have it both ways. If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate.”)

On The Commits Clause

No one, Carey included, disputes that the Commonwealth has a compelling interest in “prohibit[ing] candidates from promising to rule a certain way on cases.” But the canon does not stop there. It also prevents candidates from making
commitments about “issues.”

Carey agreed that the commits clause would satisfy the First Amendment if the clause did not contain an “issues” component to it, and saw the addition of the “issues” language (together with the commentary) as having two impermissible effects: chilling candidates’ free-speech rights to discuss their legal philosophies freely, and effectively sidestepping White by prohibiting candidates from announcing their positions on legal issues. The state defendants suggested that a narrowing construction of the “issues” clause could save it.

On The Duty Of The Commonwealth To Abide By The Constitution

There is room for debate about whether the election of state court judges is a
good idea or a bad one. Yet there is no room for debate that, if a State opts to select its judges through popular elections, it must comply with the First Amendment in doing so.

Through it all, no one should lose sight of the reality that a judicial candidate’s right to engage in certain types of speech says nothing about the desirability of that speech. The First Amendment protects the meek and brazen, the “offensive” and agreeable. Texas v.Johnson, 491 U.S. 397, 414 (1989). Today’s case is about the meaning of the First Amendment, not about the virtues of some types of judicial campaign speech relative to others.

And Congratulations to my fine team of lawyers at the James Madison center for free speech, Jim Bopp and Anita Woudenberg and Benjamin Cowgill.

Comments

[Al]

Just got back home, been gone couple weeks

CONGRATULATIONS - That is Awsome !

You worked hard to bring the people that ruling, Hope they realize that.

[Marcus Brutus]

Boss Hawg, this isn't about politicizing judicial elections, it is about upholding the constitution. Just as a law banning flag burning may well be well-intentioned and good from a policy point of view, it is nevertheless unconstitutional, and cannot stand.

[elmer fudd]

Good work Marcus...

[Boss Hogg]

Great. Now we get to politicize judicial elections too.

[AngelaTC]

Wow, that's pretty cool! Congratulations!

[InAwe]

That's fantastic Marcus! Congratulations and Thank You!