Judicial elections: Canon 7, politics, and free speech.

AuthorKahn, Charles J., Jr.
PositionFlorida

Canon 7 of the Florida Code of Judicial Conduct draws boundaries between permissible and impermissible speech by judges and judicial candidates. The canon reflects two primary public purposes that, of necessity, overlap. First , the canon reflects Florida's commitment to a truly nonpartisan judiciary. Indeed, such commitment is reflected not only in the prohibitions of Canon 7,[1] but also in long-standing Florida statutory law.[2] Second, Canon 7 maintains "the impartiality, the independence from political influence, and the public image of the judiciary as impartial and independent . . . ."[3] This article presents a historical discussion of cases involving the previous version of Canon 7 and its restrictions on political speech in judicial campaigns. The article then considers cases construing the current version of the canon and details Florida's recent experiences. Finally, the article concludes with general comments about judicial elections and the public interest considerations underlying Canon 7's restrictions on political speech.

"Disputed Legal or Political Issues"

Before the 1994 amendments[4] to the Code of Judicial Conduct, Canon 7B(1)(c) provided:

A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit selection system . . . should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.

In 1990, the American Civil Liberties Union (ACLU), on behalf of a Citrus County judge, challenged the portion of this canon that proscribes discussion of "disputed legal or political issues." ACLU of Fla., Inc., v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990). Judge William Stafford struck down this portion of the canon. Although Judge Stafford recognized that "states need not treat candidates for judicial office the same as candidates for other elective offices," he nevertheless made the following sweeping pronouncements:

[A] per on does not surrender his constitutional right to freedom of speech when he becomes a candidate for judicial office. A state cannot require so much. Indeed, when a state decides that its trial judges are to be popularly elected, as Florida has done, it must recognize the candidates' right to make campaign speeches and the concomitant right of the public to be informed about the judicial candidates.[5]

Judge Stafford analogized the speech rights of judicial candidates to the commercial speech rights of attorneys seeking to advertise. He relied upon the leading case of Bates v. State Bar of Arizona, 433 U.S. 350 (1977), to suggest that undue restrictions on judicial campaign speech "underestimated" the intelligence of the public. Judge Stafford also opined that "the state wrongly assumes that members of a respected and learned profession cannot announce their views on legal and/or political issues without undermining the public's confidence in the objectivity of the judiciary"[6] Accordingly, Judge Stafford entered a temporary injunction against the Judicial Qualifications Commission (JQC) prohibiting enforcement of the canon. Judge Stafford ultimately entered a permanent injunction.[7]

Soon after the ACLU opinion, an Arkansas federal court and the Kentucky Supreme Court considered and struck down language in Canon 7. First, in Beshear v. Butt, 773 F. Supp. 1229 (E.D. Ark. 1991), an Arkansas federal court struck down Canon 7B(1)(c) of the Arkansas Code of Judicial Conduct, which, like the Florida code, prevented a candidate from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" or from announcing "his views on disputed legal or political issues." The case concerned a campaign pledge made by Judge Sanford L. Beshear that plea bargaining is not acceptable to him and would not be allowed in his court. The federal court found ample ground to criticize Canon 7, which, in the words of the court, "minimizes the importance of free speech and openness in that branch of the government that serves as guardian of the civil liberties of the people."[8] After all, the court explained, Judge Beshear's policies against plea bargaining would be implemented in open court, in the presence of all interested parties, and not in secrecy or in an arbitrary or oppressive manner.

At about the same time, in a campaign for the Kentucky Supreme Court, a candidate named Dan Jack Combs made statements criticizing the fireman's rule, statements about laws that forbid felons from carrying firearms, criticisms of a Kentucky Supreme Court ruling in a personal injury case, and statements about the standard of review in workers' compensation cases. These statements resulted in disciplinary action by the Kentucky Commission. In J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 956 (Ky. 1991), the Kentucky Supreme Court threw out the portion of Canon 7 that prohibits "all discussion of a judicial candidate's views on disputed legal or political issues." According to the Kentucky court, this prohibition "unnecessarily violates fundamental state and federal constitutional free speech rights of judicial candidates."[9]

In Stretton v. Disciplinary Board, 944 F.2d 137 (3d Cir. 1991), however, the Third Circuit Court of Appeals upheld Canon 7 as it applied to a Pennsylvania judicial candidate. This candidate wanted to comment about the fact that all judges in his county were Republicans and that the county would benefit from judges with an "activist" bent. The Third Circuit construed Canon 7 narrowly based upon its assumption that the Pennsylvania Supreme Court would give it a narrow construction to protect its constitutionality. The Pennsylvania Judicial Inquiry and Review Board argued in Stretton that the prohibition of comment on "disputed legal or political issues" should be "viewed narrowly as prohibiting a candidate only from announcing a position on an issue that may come before the court for resolution."[10] The Third Circuit agreed: "Adopting a restrictive interpretation is reasonable in light of the state's interests [served by Canon 71."[11] The court found a compelling state interest in the "integrity of its judiciary."[12] The court also found Judge Stafford's opinion in ACLU and the Kentucky opinion in J.C.J.D. "unpersuasive."[13]

In turn, the Third Circuit's restrictive construction did not prove persuasive to the U. S. Seventh Circuit Court of Appeals. In a 1990 campaign for the Illinois Supreme Court, a candidate, Robert Buckley, circulated campaign literature stating that he had never written an opinion reversing a rape conviction. This literature led to charges against Buckley by the Illinois Judicial Inquiry Board, and Buckley then brought a federal action against the board. In Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993), the court not only struck down the prohibition against announcing views on disputed legal or political issues, but also went farther than any other court has before or since in criticizing the canon. Judge Richard Posner, echoing an observation made by Judge Stafford in ACLU, began his analysis by conceding that "judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."[14] Nonetheless, Judge Posner was liberal, and perhaps even a bit given to overstatement, in his condemnation of Canon 7 on First Amendment grounds:

The rule certainly deals effectively with the abuse that the draftsmen were concerned with; but in so doing it gags the judicial candidate ... Indeed, the only safe response ... is silence. True, the silencing is temporary. It is limited to the duration of the campaign. But interference with the marketplace of ideas and opinions is at its zenith when the "customers" are most avid for the market's "product." The only time the public takes much interest in the ideas and opinions of judges or judicial candidates is when an important judicial office has to be...

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