Siefert v. Alexander: the Seventh Circuit Erroneously Found the Endorsement Clause Constitutional in an Effort to Confront the Ethical Dilemmas of Judicial Elections

• Publication year: 2022

45 Creighton L. Rev. 893. SIEFERT V. ALEXANDER: THE SEVENTH CIRCUIT ERRONEOUSLY FOUND THE ENDORSEMENT CLAUSE CONSTITUTIONAL IN AN EFFORT TO CONFRONT THE ETHICAL DILEMMAS OF JUDICIAL ELECTIONS

SIEFERT V. ALEXANDER: THE SEVENTH CIRCUIT ERRONEOUSLY FOUND THE ENDORSEMENT CLAUSE CONSTITUTIONAL IN AN EFFORT TO CONFRONT THE ETHICAL DILEMMAS OF JUDICIAL ELECTIONS

Tyler J. Moss - '13

I. INTRODUCTION

In Siefert v. Alexander,(fn1) the United States Court of Appeals for the Seventh Circuit held that John Siefert, a Wisconsin County Circuit Court judge, was prohibited from publicly endorsing other political candidates during his judicial campaign.(fn2) The Seventh Circuit prohibited Siefert from endorsing political candidates by determining that Wisconsin's Endorsement Clause,(fn3) a code of judicial ethics that banned judicial candidates from endorsing other candidates during elections, was constitutional.(fn4) Instead of applying strict scrutiny, the level of review established in Republican Party of Minnesota v. White(fn5) (White I), the Seventh Circuit determined the Endorsement Clause was constitutional by applying the Pickering v. Board of Education(fn6) balancing test for the first time to judicial elections and judges' First Amendment rights.(fn7)

This Note will first review the facts and holding of Siefert.(fn8) This Note will then discuss decisions involving the constitutionality of Endorsement Clauses or other similar clauses under strict scrutiny anal-ysis.(fn9) This Note will argue the Seventh Circuit in Siefert erred by failing to follow the Supreme Court's decision in White I, which required the application of strict scrutiny as opposed to the Pickering balancing test to content-based restrictions such as the Endorsement Clause.(fn10) Further, this Note will illustrate that Wisconsin's Endorsement Clause is like Minnesota's Announce Clause(fn11) and Party-Affiliation Clause,(fn12) both of which the Supreme Court found unconstitutional, and as such, the Seventh Circuit should have found the Endorsement Clause unconstitutional.(fn13) Finally, this Note will show that the Seventh Circuit erroneously found the Endorsement Clause constitutional by failing to consider the modern legal trend of treating judicial elections like legislative and executive elections.(fn14)

II. FACTS AND HOLDING

In 1999, John Siefert was elected as a County Circuit Court Judge in Milwaukee, Wisconsin.(fn15) Before his election, Siefert was a member of the Democratic Party and highly involved in partisan activities such as running twice as a Democrat for the state legislature, running twice for the county's treasurer, and serving as an alternate elector for President Bill Clinton in 1992.(fn16) After being elected judge, Siefert desired to declare his party affiliation with the Democratic Party because he believed that his membership would vocalize his desire for peace and justice.(fn17) Siefert additionally wanted to endorse partisan candidates for public office such as President Barack Obama and then-governor of Wisconsin, Jim Doyle.(fn18) Finally, Siefert wished to solicit contributions for his upcoming judicial election in 2011 by making phone calls, signing fundraising letters, and inviting potential donors to events.(fn19)

Since 1913, affiliating with a political party was absent from Wisconsin judicial elections, but in 1968 Wisconsin expressly prohibited judges from affiliating with a political party.(fn20) In 2004, the Wisconsin Supreme Court amended the Code of Judicial Conduct and banned judges from declaring party membership, personally soliciting campaign contributions, and making partisan endorsements-the precise privileges Siefert believed he was granted under the rights of freedom of speech and association guaranteed by the First Amendment.(fn21) To avoid running the risk of violating Wisconsin's Code of Judicial Conduct, Siefert filed suit under 42 U.S.C. § 1983 requesting declaratory and injunctive relief against, inter alia, James C. Alexander.(fn22) Alexander was the executive director of the Wisconsin Judicial Commission, the body that enforces Wisconsin's Code of Judicial Conduct.(fn23)

The United States District Court for the Western District of Wisconsin found in favor of Siefert, holding that it was unconstitutional to ban judges from affiliating with a party, endorsing partisan candidates, and personally soliciting campaign funds.(fn24) The court used a strict scrutiny analysis to strike all three provisions of the Wisconsin Code of Judicial Conduct because they were content-based regulations of speech.(fn25) The court noted the general rule that every content-based regulation of speech is subject to strict scrutiny.(fn26) Under strict scrutiny, the regulation has to be narrowly tailored to serve a compelling governmental interest by the least restrictive means.(fn27) The court followed the United States Supreme Court in Republican Party of Minnesota v. White(fn28) (White I) and the United States Court of Appeals for the Eighth Circuit in Republican Party of Minnesota v. White(fn29) (White II), which both applied strict scrutiny to strike down similar judicial codes of conduct.(fn30)

Moreover, the district court refused to apply the balancing test the Supreme Court established in Pickering v. Board of Education,(fn31) which weighs the government's interests of functionality and efficiency against a public employee's right to speak on public matters.(fn32) The court opined that the Pickering balancing test was inappropriate because it is arduous to characterize an elected judge as an employee of the government since he is accountable to the electorate and not to the government.(fn33) The court opted not to apply the Pickering balancing test because courts have never allowed the government to ban candidates from communicating pertinent information to voters during an election.(fn34) The court additionally stated that Wisconsin's rule of banning judicial candidates from affiliating with a political party seemed parallel to Minnesota's rule in White I banning judicial candidates from announcing their views on legal or political issues, and thus strict scrutiny should apply.(fn35)

The court determined that the three provisions of the Wisconsin Supreme Court Rules regarding party affiliation, endorsement of partisan candidates, and personal solicitation for campaign funds lacked narrow tailoring.(fn36) The court reasoned that the provisions were un-derinclusive and did not use the least restrictive means to achieve the compelling state interest of preventing bias and the appearance of bias within the judiciary.(fn37) The court stated that the provision prohibiting party affiliation was underinclusive because it only banned political party affiliation but allowed affiliation with religious, fraternal, sororal, educational, civic and other interest groups.(fn38) The court determined that recusal was the least restrictive and effective measure to promote Wisconsin's state interests.(fn39)

Alexander appealed to the United States Court of Appeals for the Seventh Circuit, and the court affirmed the judgment of the district court in part and reversed in part.(fn40) The Seventh Circuit applied strict scrutiny to affirm the district court's judgment, which determined that judicial candidates' rights to affiliate with a political party were protected.(fn41) Nevertheless, the Seventh Circuit reversed the district court's judgment that determined it unconstitutional for judges to publicly endorse political candidates and personally solicit campaign contributions.(fn42)

First, the Seventh Circuit applied strict scrutiny to the Party Affiliation Clause,(fn43) which prohibited judicial candidates from affiliating with a political party, and affirmed the district court's reasoning that it was unconstitutional.(fn44) However, in examining the Endorsement Clause,(fn45) which banned judicial candidates from endorsing or speaking on behalf of its candidates or platforms during elections, the Seventh Circuit did not apply strict scrutiny, but rather applied the Pickering balancing test.(fn46) In refusing to apply strict scrutiny to the Endorsement Clause, the Seventh Circuit distinguished the type of speech the Endorsement Clause prohibited from the speech the Supreme Court protected in White I-a judge endorsing a candidate is different from a judge announcing his or her views on legal or political issues.(fn47)

The Pickering balancing test differs from strict scrutiny because it does not require narrow tailoring.(fn48) The Seventh Circuit applied the Pickering balancing test by balancing the state's interests against Sie-fert's interests.(fn49) The Seventh Circuit noted that the Endorsement Clause potentially put judicial candidates at the fulcrum of party politics, which could destabilize Wisconsin's interest in maintaining the judiciary's impartiality.(fn50) Further, the Seventh Circuit articulated that Wisconsin also has a due process obligation to prevent the appearance of partisan bias in the judiciary.(fn51) The Seventh Circuit weighed Wisconsin's interests against Siefert's interest to inform the electorate of his beliefs and qualifications.(fn52) In the end, the Seventh Circuit gave more weight to Wisconsin's interests than to Siefert's interests and accordingly determined that the Endorsement Clause was constitutional under the Pickering balancing test.(fn53)

III. BACKGROUND

A. REPUBLICAN PARTY OF...