No. 07-7965
In the Supreme Court of the United States
GERTRUDE C. CHASE, CHAIR,
NEW COLUMBUS ELECTION BOARD, ET AL.,
PETITIONERS,
V.
NEW COLUMBUS DEMOCRATIC PARTY, ET AL.,
RESPONDENTS.
_____________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR RESPONDENTS
Team # 5677
Counsel for Respondents
QUESTIONS PRESENTED
1. Whether New Columbus’s rule precluding judges and
judicial candidates from personally soliciting campaign
contributions is inconsistent with the First Amendment
insofar as it bars them from (1) signing letters
requesting
campaign
contributions,
and
(2)
making
personal appeals for campaign contributions to “large
groups” of individuals.
2. Whether New Columbus’s restrictions on certain partisan
political activities of judges and judicial candidates
violate the First Amendment to the extent that they bar
judges and judicial candidates from (1) attending and
speaking at political party gatherings, (2) identifying
themselves as members of a political party, and (3)
seeking,
accepting,
or
using
political
party
endorsements.
ii
TABLE OF CONTENTS
Table of Authorities . . . . . . . . . . . . . . . . . . . . iv
Constitutional Provisions and Statutes Involved. . . . . . . vii
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case and Facts. . . . . . . . . . . . . . . 1
Summary of Argument. . . . . . . . . . . . . . . . . . . . . 6
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I.
The Solicitation Clause is Unconstitutional . . . . . . 8
A.
II.
The Solicitation Clause Fails Strict Scrutiny. . . 8
i.
The Canons Fail to Serve
a Compelling State Interest . . . . . . . . . 8
ii.
The Solicitation Clause
is Not Narrowly Tailored. . . . . . . . . . . 11
B.
The Solicitation Clause is Vague . . . . . . . . . 16
C.
The Solicitation Clause is Overbroad . . . . . . . 18
The Partisan-Activities Clause is Unconstitutional. . . 19
A.
B.
The Partisan-Activities Clause
Fails Strict Scrutiny. . . . . . . . . . . . . . . 19
i.
The Partisan-Activities Clause Fails
to Serve a Compelling State Interest. . . . . 19
ii.
The Partisan-Activities Clause
is Not Narrowly Tailored. . . . . . . . . . . 19
The Partisan-Activities Clause is Overbroad. . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
TABLE OF AUTHORITIES
Cases
Ackerson v. Kentucky Judicial Retirement
and Removal Commission,
776 F. Supp. 309 (W.D. Ky. 1991) . . . . . . . . . . . . 25
American Civil Liberties Union of Florida, Inc.
v. The Florida Bar,
744 F. Supp. 1094 (N.D. Fla. 1990) . . . . . . . . . . . 20
Bates v. State Bar of Arizona,
433 U.S. 350 (1977). . . . . . . . . . . . . . . . . . . 24
Broadrick v. Oklahoma,
413 U.S. 601 (1973). . . . . . . . . . . . . . . . . . . 25
Buckley v. Illinois Judicial Inquiry Board,
997 F.2d 224 (7th Cir. 1993) . . . . . . . . . . . . . . 14
Buckley v. Valeo,
424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . .
Concerned Democrats of Florida v. Reno,
458 F. Supp. 60 (S.D. Fla. 1978). . . . . . . . . . .
20
. 27
Connally v. General Construction Co.,
269 U.S. 385 (1926) . . . . . . . . . . . . . . . . . . 16
Crandell v. Chase,
No. 07-XXXX, __ F. Supp. 2d ___
(D. N. Col. Sept. 1, 2007) . . . . . . . . . . . . . . . 5
Houston v. Hill,
482 U.S. 451 (1987). . . . . . . . . . . . . . . . . . . 18
J.C.J.D. v. R.J.C.R.,
803 S.W.2d 953 (Ky. 1991)
. . . . . . . . . . . . . . . 14
NAACP v. Button,
371 U.S. 415 (1963). . . . . . . . . . . . . . . . . . . 16
New Columbus Democratic Party v. Chase,
No. 07-XXXX, __ F.3d __ (14th Cir. October 1, 2007). . . 12
Peel v. Attorney Registration and Disciplinary Commission,
iv
496 U.S. 91 (1990) . . . . . . . . . . . . . . . . . . . 24
Renne v. Geary,
501 U.S. 312 (1991). . . . . . . . . . . . . . . . . . . 10
Republican Party of Minnesota v. White,
536 U.S. 765 (2002) . . . . . . . . . . . . . . . . . .
8
Republican Party of Minnesota v. Kelly,
247 F.3d 854 (8th Cir. 2001) . . . . . . . . . . . . . . 22
Rosenthal v. Harwood,
323 N.E.2d 179 (N.Y. 1974) . . . . . . . . . . . . . . . 26
Turner Broadcasting System
v. Federal Communication Commission,
512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . . 20
Weaver v. Bonner,
309 F.3d 1312 (11th Cir. 2002) . . . . . . . . . . . . . 15
Constitutional Provisions
U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . vi
Statutes
New Columbus Code of Judicial Conduct, Canons 1-7. . . . . .
vi
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . 1
Other Authorities
Abortion: Election Center 2008 – CNN.com,
http://www.cnn.com/ELECTION/2008/issues/issues.abortion.html
(last visited Jan. 16, 2008) . . . . . . . . . . . . . . . . 21
J. Jud. Advisory Comm. to the S. Ct. of N. Col.,
Final Notes of the Comm. Secretary on
Canons 1-7 of the Code of J. Conduct. . . . . . . . . . 8
N. Col. Election Bd. Rul. 07-04-005 (Apr. 16, 2007). . . . . 4
v
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
U.S. CONST. amend. I.
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for
a redress of grievances.
New Columbus (N.Col.) Code of Judicial Conduct, Canons 1-7
[NOTE: Additional, Non-Relevant Canons Have Been Omitted]
Canon 1: Except as authorized below, a judge or a candidate for
election to judicial office shall not:
(a) act as a leader or hold any office in a political
organization; identify him- or herself as a member of a
political organization, except as necessary to vote in an
election;
(b) publicly endorse or, except for the judge or candidate's
opponent, publicly oppose another candidate for public
office;
(c) make speeches on behalf of a political organization;
vi
(d)
(e)
attend political gatherings; or seek, accept, or use
endorsements from a political organization; or
solicit funds for or pay an assessment to or make a
contribution to a political organization or candidate, or
purchase tickets for political party dinners or other
functions.
Canon 2: A judge or a candidate for election to judicial office
may, except as prohibited by law,
(a) speak to gatherings, other than political organization
gatherings, on his or her own behalf;
(b) appear
in
newspaper,
television
and
other
media
advertisements supporting his or her candidacy; and
(c) distribute
pamphlets
and
other
promotional
campaign
literature supporting his or her candidacy.
Canon 3: A judge or a candidate for election to judicial office
shall not personally solicit or accept campaign contributions or
solicit publicly stated support. A candidate may, however,
establish committees to conduct campaigns for the candidate
through media advertisements, brochures, mailings, candidate
forums, and other means not prohibited by law. Such committees
may solicit and accept campaign contributions, manage the
expenditure of funds for the candidate's campaign, and obtain
public statements of support for his or her candidacy. Such
committees are not prohibited from soliciting and accepting
campaign contributions and public support from lawyers, but shall
not seek, accept, or use political organization endorsements.
Such committees shall not disclose to the candidate the identity
of campaign contributors nor shall the committee disclose to the
candidate the identity of those who were solicited for
contribution
or
stated
public
support
and
refused
such
solicitation. A candidate shall not use or permit the use of
campaign contributions for the private benefits of the candidate
or others.
Canon 4: Political Organization. For purposes of Canons 1-5, the
term political organization denotes a partisan organization.
Canon 5: Each justice of the New Columbus Supreme Court and each
court of appeals and district court judge is deemed to hold a
separate nonpartisan office.
Canon 6: Canons 1-7 apply to all judicial candidates. A
successful candidate, whether or not an incumbent, is subject to
judicial discipline for his or her campaign conduct; an
unsuccessful candidate who is a lawyer is subject to lawyer
discipline under the New Columbus Rules of Professional for his
or her campaign conduct.
Canon 7: The New Columbus Election Board [charged generally with
responsibility for ensuring compliance of non-judicial candidates
for state-level office] shall have authority to monitor the
vii
campaign
activities
of
candidates
for
judicial
office;
investigate allegations of violations of Canons 1-5 by candidates
for judicial office; make recommendations to the New Columbus
Supreme Court regarding judicial discipline consistent with the
state code, up to and including removal from the bench and/or
lawyer discipline consistent with the state code, up to and
including disbarment; and generally oversee the compliance of
candidates for judicial office with these Canons. The Board shall
provide timely reports on the activities of candidates for
judicial office to the New Columbus Supreme Court, no less than
annually in a non-election year and quarterly in an election year
during which candidates are seeking judicial office. The New
Columbus Supreme Court shall retain ultimate authority over the
election of candidates for judicial office.
viii
JURISDICTION
The judgment of the United States Court of Appeals for the
Fourteenth Circuit was entered on October 1, 2007. Record 6.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE AND FACTS
On August 17, 2007, Respondents Arthur B. Crandell, The New
Columbus Democratic Party, the Democratic Party of the City of
Troy, and the Milford City Democratic Party filed suit against
Gertrude C. Chase in her capacity as Chair of the New Columbus
Election Board, Neil G. Katzen in his capacity as Director of the
New Columbus Office of Attorney Ethics, and Dwayne F. Pierce in
his capacity as Chair of the New Columbus Office of Attorney
Ethics,
seeking
declaratory
and
injunctive
relief
against
enforcement of the partisan-activities restrictions contained in
Canons 1–3, and the solicitation restrictions in Canon 3 of the
New
Columbus
Judicial
Code.
Record
11.
The
United
States
District Court for New Columbus issued a declaratory judgment in
favor of Petitioners Chase, Katzen, and Pierce.
Record 12.
The
District Court denied injunctive relief but granted a stay of the
decision pending appeal.
Record 12.
The United States Court of
Appeals for the Fourteenth Circuit reversed on the grounds that
the
challenged
portions
of
the
canons
violated
the
First
Amendment of the United States Constitution, and remanded the
case to the District Court for proceedings consistent with the
opinion.
Record 26.
Petitioners sought review by the Supreme
Court of the United States and certiorari was granted on October
19, 2007.
Record 2.
1
Since law school and after his graduation, Respondent Arthur
B. Crandell has been an active member of the Democratic Party,
attending and organizing party events, voter mobilization, and
fundraising efforts.
Record 8.
As an attorney he participated
in New Columbus’s voluntary state bar association and its section
on Criminal Law. Record 8-9.
In 1997 and 1998, he worked as a
media consultant and public relations director on the campaign of
Democratic State Senator Matilda Fremun.
Record 9.
Since 1920, the state of New Columbus has chosen to elect
judges to its highest court by popular election. Record 14.
In
2001, Crandell sought an Associate Justice position on the New
Columbus Supreme Court, but withdrew his candidacy in August
2001, prior to the election, when a fellow candidate filed a
complaint
with
Petitioner
Election
Board.
Record
9.
The
complaint alleged Crandell had violated Canons 1–3 of the New
Columbus Code of Judicial Conduct and sought disciplinary action
against him.
again.
Record 9.
Record
9.
Six years later, Crandell decided to run
He
sought
an
advisory
opinion
from
the
Election Board clarifying its stance on his intended campaign
activities.
Record 10.
planned
to
enforce
clauses
against
organization
accepted,
a
the
partisan-activities
candidate
gatherings
or
He asked whether the Election Board
who:
during
publicized
his
1)
and
spoke
candidacy;
endorsements
by
solicitation
to
2)
political
pursued,
political
party
organizations; 3) personally solicited contributions from party
members
at
personally
political
solicited
party
campaign
organization
contributions
2
functions;
by
letter
and
4)
or
in
person to large groups of fifty people or more.
Although
the
canons
do
not
provide
a
limit
Record 10.
on
the
size
of
gatherings a candidate may attend, Crandell wrote that he was not
challenging
restrictions
people or less.
on
soliciting
groups
of
forty-nine
Record 10.
In response, the Election Board issued an advisory opinion
reading, in part:
It is the view of this Board that the
relevant
provisions
identified
in
your
inquiry, namely the solicitation clause at
Canon 3 and the partisan-activities clauses
at Canons 1–3, remain in effect and are
enforceable as incorporated in the New
Columbus State Code. We advise that the
activities identified in your letter of
inquiry
would
likely
violate
these
provisions. Also, in light of the nature of
your request affirmatively notifying this
Board that you plan to seek election to the
open seat on the New Columbus Supreme Court,
we further advise that this office closely
monitors the election-related activities of
all candidates for state judicial office in
order to ensure compliance with applicable
state law.
N. Col. Election Bd. Rul. 07-04-005 (Apr. 16, 2007).
Crandell launched his campaign on May 1, 2007, and named
prominent New Columbus Democrats to his campaign committee to
manage fundraising, communications, and other campaign functions.
Record 10.
During the campaign, Crandell sought and received an
endorsement
Associate
from
Justice
the
New
Columbus
position.
Democratic
Record
11.
Party
for
the
Additionally,
the
campaign committee had Crandell sign numerous letters for a mass
mailing seeking campaign contributions. Record 11.
evidence
the
campaign
committee
3
disclosed
to
There is no
Crandell
the
identities
of
actual
contributors.
Finally,
Crandell
attended
“meet the candidate” events and events held by Democrat groups
included in this litigation. Record 11.
There, Crandell made
personal appeals for campaign contributions.
Record 11.
On August 1, 2007, the Election Board wrote a letter that
read,
in
suggesting
relevant
that
part,
you
“We
have
are
in
receipt
of
engaged
in
campaign
information
activities
in
violation of Canons 1–3 of the New Columbus Code of Judicial
Conduct. This letter is to inform you that the New Columbus
Election
Board
has
opened
an
campaign-related activities.”
investigation
into
your
2007
Ltr. from N. Col. Election Bd. to
Arthur B. Crandell (Aug. 1, 2007); Record 11. Crandell timely
cooperated with the Election Board’s request for documents. Ltr.
from Arthur B. Crandell to N. Col. Election Bd. (Aug. 15, 2007);
Record 11.
Respondents filed suit on August 17, 2007. Record 11.
complaint
alleged
the
judicial
canons:
1)
violate
The
Crandell’s
freedom of speech and freedom of association guaranteed by the
First
Amendment
candidates
from
to
the
Constitution
identifying
with
a
by
banning
political
judicial
party,
from
attending or speaking at political party gatherings, and from
pursuing, accepting, or publicizing political party endorsement;
and 2) violate Crandell’s freedom of speech guaranteed by the
First
Amendment
by
banning
him
campaign contributions. Record 12.
from
personally
soliciting
The District Court held that
the provisions did not violate Crandell’s First Amendment rights
4
because
they
were
narrowly
tailored
to
serve
New
Columbus’s
compelling interest in judicial independence and impartiality.
Crandell v. Chase, No. 07-XXXX, __ F. Supp. 2d __ (D. N. Col.
Sept. 1, 2007); Record 12.
The Fourteenth Circuit reversed,
holding that the canons failed strict scrutiny analysis and that,
while the state had compelling interests in independence and
impartiality, the canons were not narrowly tailored to meet those
interests, were underinclusive, and contrary to the spirit of the
First Amendment.
Record 26; U.S. CONST. amend. I.
SUMMARY OF ARGUMENT
I
The
under
solicitation
the
First
clause
Amendment
violates
to
solicit
both
Respondents’
campaign
right
contributions
through public appearances, through the signing of contribution
letters,
messages.
and
by
barring
the
electorate’s
receipt
of
those
The state’s proffered compelling interest is judicial
impartiality, but its choice to elect judges reveals that New
Columbus does not hold impartiality in high regard.
Without a
compelling state interest, the restriction on free speech and
association must fail strict scrutiny.
In the alternative, if this Court finds that there is an
identified
strict
compelling
scrutiny
state
because
it
interest,
is
not
the
clause
narrowly
still
tailored.
fails
Laws
regulating the right of free speech must be tailored as the least
restrictive means available to achieve their compelling interest.
The
solicitation
clause
is
not
5
narrowly
tailored
because
it
burdens significantly more speech than necessary, and because
there
are
adequate
safeguards
in
place
other
than
the
prior
constraint on speech.
Finally, the solicitation clause is also unconstitutional
under the doctrines of overbreadth and vagueness.
have
constitutionally
protected
political speech of the Respondents and third parties.
Moreover,
they
the
do
potential
not
provide
of
an
chilling
The canons
objective
criteria
for
citizens
to
ascertain when and what speech is protected, or for governing
bodies to know when and what speech to prohibit.
II
The
Fourteenth
Circuit
correctly
held
New
Columbus’s
partisan-activities clause—which prohibits judges and judicial
candidates
from
attending
and
speaking
at
political
party
gatherings, from identifying themselves as members of a political
party, and from seeking, accepting, or using political party
endorsements—failed strict scrutiny analysis because it was not
narrowly
tailored
to
forward
a
compelling
state
interest
in
judicial independence and impartiality. The clause fails strict
scrutiny because it is underinclusive. Its durational limit to a
judicial campaign and then the career of a judge does nothing to
uniquely preserve judicial independence and impartiality when a
candidate could have been a lifelong political party member.
Additionally, the statute does not regulate judicial campaign
activities regarding special interest groups, which do just as
much or more than political organization to create a risk of
judicial bias.
6
Finally, Respondents contend the partisan-activities clause
is overbroad. The clause unduly regulates judicial candidates’
constitutional
speech
and
association
rights
to
discuss
non-
political issues to political gatherings. Additionally, although
strict
scrutiny
candidates
to
can
be
curtail
constitutionally
their
First
applied
Amendment
to
rights
judicial
where
a
compelling state interest is forwarded, such restrictions chill
the First Amendment right of political organizations to endorse
judicial candidates.
ARGUMENT
I.
The Solicitation Clause is Unconstitutional
A.
The Solicitation Clause Fails Strict Scrutiny
i.
The Canons Fail to Serve
a Compelling State Interest
New Columbus has identified the compelling state interests
the canons forward as judicial independence and impartiality.
J.
Jud. Advisory Comm. to the S. Ct. of N. Col., Final Notes of the
Comm.
Secretary
on
Canons
1-7
of
the
Code
(hereinafter “ACN”), Principle 3; Appendix A.
of
J.
Conduct
In Republican
Party of Minnesota v. White, 536 U.S. 765, 775-80 (2002), the
Supreme Court discussed the plausibility of “impartiality” as a
compelling state interest but never identified it as such because
of the many meanings impartiality connotes, and because the court
could
strike
down
the
canons
on
a
narrow
tailoring
analysis
without reaching the compelling state interest question.
The
Court concluded that the first definition of impartiality – a
lack of bias for a party – might be a compelling state interest,
7
but did not need to be decided because the announce clause was
not narrowly tailored.
Id. at 776.
The second definition – a
lack of preconception in favor of or against a particular legal
view – can never be a compelling state interest.
The
third
definition
respondents
in
White
–
open-mindedness
and
the
Court
–
was
rightly
Id. at 777.
argued
by
the
disposed
of
the
argument as insincere given the realities of a judge’s career
before
and
Petitioners
after
taking
have
the
identified
bench.
open-mindedness
impartiality New Columbus seeks.
A.
Id.
at
778-79.
as
the
Here,
type
of
ACN, Principle 3(c); Appendix
As Justice Scalia noted, open-mindedness may be a desirable
trait in the judiciary but does not reach the necessity of a
compelling interest.
White, 536 U.S. at 778.
“Before they
arrive on the bench (whether by election or otherwise) judges
have often committed themselves on legal issues that they must
later rule upon.... More common still is a judge’s confronting a
legal issue on which he has expressed an opinion while on the
bench.”
Id. at 779 (citations omitted).
partisan-activities
drafted
for
the
clause
purpose
of
nor
the
serving
Thus, neither the
solicitation
clause,
open-mindedness,
serve
if
a
compelling state interest.
Moreover, the state of New Columbus’s choice to elect its
judges exposes the state’s choice to treat judicial impartiality
as less than compelling.
impartial
method
of
The state has chosen to forego the more
selecting
judges
(i.e.,
appointment),
favor of the transparency of the election process.
8
in
This choice
is
counterintuitive
–
the
state
cannot
benefit
from
the
transparency of the election process and prohibit the mechanics
of the election itself.
“If the State chooses to tap the energy
and the legitimizing power of the democratic process, it must
accord the participants in that process . . . the First Amendment
rights that attach to their roles.”
White, 536 U.S. at 788
(quoting Renne v. Geary, 501 U.S. 312, 349 (1991) (Marshall, J.,
dissenting)).
“[The
state]
has
chosen
to
select
its
judges
through contested popular elections. . . . In doing so [it] has
voluntarily taken on the risks to judicial bias . . . .” Id. at
792
(O’Connor,
J.,
concurring).
New
Columbus’s
choice
is
evidence that impartiality is not considered a compelling state
interest
within
its
borders.
If
the
state
truly
valued
impartiality, it would decline to use a partisan process.
ii.
The Solicitation Clause
is Not Narrowly Tailored
The solicitation clause must be narrowly tailored if the
state
is
to
impartiality.
assert
a
compelling
interest
White, 536 U.S. at 774-75.
in
judicial
This is especially
true in cases that deal with the First Amendment right of free
speech because restrictions that are not narrowly tailored open
the door to the dangers of vagueness and overbreadth discussed
infra.
Moreover, a state’s failure to narrowly tailor a law
restricting free speech may act as a veil to disguise efforts to
curtail legal speech and parties that are unpopular.
9
If the state’s interest in impartiality is compelling, then
the solicitation clause ought to serve the type of impartiality
identified as compelling in White – “the lack of bias for or
against
either
to
party
(emphasis in original).
potential
influence
[a]
proceeding.”
536
U.S.
at
775
Thus, a judge ought to be free of the
that
a
party’s
contribution
or
publicly
stated support might have on the outcome of their case.
This is
already possible under the canons because the candidate is never
allowed to know the identity of those parties that contributed or
declined to contribute.
bar
against
That safety net is enough, without the
solicitation,
to
keep
judges
influence of monetary contributions.
insulated
from
the
Therefore, the clause ought
to be narrowly tailored to allow judges to personally solicit
contributions and support while their campaign committees accept
contributions and seal the identities of the sources.
The
bar
against
a
candidate
signing
letters
requesting
campaign contributions also reveals the code’s lack of narrow
tailoring.
A candidate’s signature, or lack thereof, has no
correlation
with
Petitioners
may
their
argue
future
that
a
impartiality.
If
anything,
candidate’s
signature
would
necessarily mean he or she had the ability to know the identity
of
targeted
donors
(in
the
address
of
today’s age this seems almost silly.
the
letters),
but
in
Signatures on standard
campaign solicitation letters are commonly made with stamps or on
digital
letterhead.
Therefore,
the
replication
of
the
candidate’s personal signature serves absolutely no purpose in
10
the
interest
of
impartiality.
“[T]here
is
virtually
no
difference between a letter marked with a candidate’s signature
and a letter sent on the letterhead of that candidate’s campaign
committee.”
New Columbus Democratic Party v. Chase, No. 07-XXXX,
__ F.3d __ (14th Cir. Oct. 1, 2007); Record 25.
candidate
did
personally
address,
write,
Even if the
and
sign
each
solicitation letter, the identity of financial contributors would
still be unknown to them as per the canons.
New Columbus Code of
Judicial Conduct (hereinafter “N. Col. Jud. Code”), Canon 3;
Record 3.
As the lower court expressed, “An actual or mechanical
reproduction of a candidate’s signature on a contribution letter
will not magically endow him or her with a power to divine,
first, to whom that letter was sent, and second, whether that
person contributed to the campaign. . . .” Record 24-25.
the
bar
against
signing
contribution
letters
is
not
Thus,
at
all
tailored to serve the interest of impartiality.
The
solicitation
clause
also
fails
narrow
tailoring
analysis because it bars personal requests for publicly stated
support.
N. Col. Jud. Code, Canon 3; Record 3.
Because of its
juxtaposition with the term “campaign contributions” in canon 3,
the phrase “publicly stated support” must mean something other
than financial backing.
Id. It must refer to public speech or
endorsement of a candidate, short of monetary contribution.
But
obviously judges are not immune from the influence of publicly
stated support solicited by their campaign committee.
To argue
otherwise would mean that the support is not “public” or that the
11
candidates
must
live
in
isolation
for
the
duration
of
the
election.
Once the support of a group or individual has been
publicly stated, it makes little difference who solicited that
support in the first place.
The appearance of influence is
present and the traditional remedies such as recusal will correct
abuses where necessary.
Thus, the solicitation clause is not
narrowly tailored because judicial candidates will inevitably be
aware of publicly stated support whether personally solicited or
not.
Petitioners’ argument for the solicitation clause goes to
the idea that in some way the candidate is making a promise to
the contributor about how they will act or rule if they take the
bench.
More specific clauses drafted for this purpose – pledges
and promises clauses – have been held unconstitutional as illegal
restrictions on First Amendment activity.
Buckley v. Illinois
Judicial Inquiry Board, 997 F.2d 224, 231 (7th Cir. 1993).
See
also J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 955 (Ky. 1991).
In
Buckley,
speech
the
and
marketplace
Seventh
the
of
Circuit
right
ideas
of
found
the
outweighed
that
voter
any
to
privileged
political
participate
potential
appearance of favoring one side of an issue.
danger
in
the
of
the
997 F.2d at 228-29.
Here, New Columbus seeks to curtail that political speech and
voter
participation
because
of
the
alleged
appearance of favoring one party in a case.
danger
of
the
The purpose and
effect of the pledges and promises clause and the solicitation
clause are the identical.
As the Illinois Judicial Code was
struck there, so too should the New Columbus Code of Judicial
12
Conduct
be
held
unconstitutional.
The
potential
danger
of
favoritism of an issue or a party, whether there is a danger at
all, can be remedied by recusal and by the election process
itself.
For example, if a judge repeatedly rules in favor of his
largest campaign contributor he will be subject to the criticism,
the
media
opinion
attention,
of
the
his
candidates
electorate
in
repeatedly
opposition,
throughout
and
his
the
career.
There is no need for the prior restraint.
Even
a
clause
tailored
to
protect
against
a
more
mischievous class of speech – negligently false or misleading
statements
1
–
has
been
judicial candidates.
Cir. 2002).
that
case
unconstitutional
as
applied
to
Weaver v. Bonner, 309 F.3d 1312, 1319 (11th
The Georgia restriction on the candidate’s speech in
did
not
provide
warranted under White.
negligently
held
false
Id.
statements
the
requisite
“breathing
space”
If a candidate is free to make
(or
true
statements
that
are
misleading or deceptive) because any regulation thereof would be
too restrictive, it follows that less potentially harmful speech
(asking for campaign contributions or identifying yourself as a
member of a political party) is also protected above and beyond
the state’s interest.
B.
The Solicitation Clause is Vague
1
The Georgia Rule read: “[Candidates for judicial office] shall not use or
participate in the use of any form of public communication which the candidate
knows or reasonably should know is false, fraudulent, misleading, deceptive,
or which contains a material misrepresentation of fact or law or omits a fact
necessary to make the communication considered as a whole not materially
misleading or which is likely to create an unjustified expectation about
results the candidate can achieve.” Weaver, 309 F.3d at 1319.
13
A law is unconstitutionally vague if a reasonable person
cannot tell what speech is regulated or permitted.
General
Construction
solicitation
clause
Co.,
is
269
vague
U.S.
385,
because
it
391
Connally v.
(1926).
provides
a
The
general
description of prohibited solicitation without reference to more
specific acts or speech.
N. Col. Jud. Code, Canon 3; Record 3.
As evidence of the confusion created by the clause, Crandell had
to write a letter to the New Columbus Election Board seeking
clarification on certain types of speech, such as speaking to
large groups or signing his own contribution letters.
Record 10.
The Election Board resplied that those activities “would likely
violate” the canons.
Record 10.
N. Col. Bd. Rul. 07-04-005 (Apr. 16, 2007);
It appears even the board is unaware of what will
violate its own rules.
This type of vagueness opens the door for ad hoc legislating
by authority figures and selective investigation by a governing
agency.
attention
speech.
The Supreme Court has expressed the need for special
where
vague
“[S]tandards
statutes
of
and
permissible
ordinances
threaten
statutory
vagueness
free
are
strict in the area of free expression. . . . Because First
Amendment freedoms need breathing space to survive, government
may regulate in the area only with narrow specificity.”
NAACP v.
Button, 371 U.S. 415, 432-33 (1963) (citations omitted); Weaver,
309 F.3d at 1319.
The bar against personal appeals for campaign contributions
to “large groups” of individuals is especially troublesome.
14
In
Crandell’s letter the term “large groups” was defined as fifty
or more (Record 10) and the Election Board seemed to accept that
definition in their response.
N. Col. Election Bd. Rul. 07-04-
005 (Apr. 16, 2007); Record 10.
First, the canon ought to be
tailored to reflect that definition so that there is no room for
confusion over the term “large groups.”
Second, the canons allow
for personal appeals on a candidate’s behalf in print and on
television.
N. Col. Jud. Code, Canon 2; Record 3.
Certainly the
mass media is a tool for efficiently appealing to large groups.
As
the
lower
court
pointed
out,
the
mass
media
is
an
indispensable instrument of effective political speech. Record
24.
Yet, a television advertisement or mass-produced pamphlet in
support of a candidate could easily be read as an appeal to a
large
group
candidates
for
from
campaign
contributions.
advertising,
which
protection of their political speech.
in
This
will
turn
discourage
violates
the
When a reasonable person
cannot differentiate between permitted and prohibited speech, the
law must be struck down as unconstitutionally vague.
C.
The Solicitation Clause is Overbroad
Restrictions on the fundamental right of free speech must
not be overbroad or else more freedoms than those essential to
the compelling interest will be burdened. See Houston v. Hill,
482
U.S.
451,
467
(1987).
Any
restriction
more
broad
than
necessary will act to discourage and punish speech that was never
intended to fall within the law’s scope.
Chilled speech is a
devastating threat and is vastly more dangerous than the flow of
15
money
in
a
public
election.
electorate’s
rights
under
Both
the
the
First
candidate
Amendment
are
and
the
unjustly
restricted when the free flow of information about a candidate’s
background,
campaign
unavailable.
especially
finance,
and
qualifications
are
made
Instead, the state must value full disclosure,
when
it
democratic process.
has
decided
to
select
its
judges
by
a
“What [the state] may not do . . . is censor
what the people hear as they undertake to decide for themselves
which
candidate
is
most
likely
to
be
an
exemplary
judicial
officer. Deciding the relevance of candidate speech is the right
of the voters, not the State.
White, 536 U.S. at 794 (Kennedy,
J., concurring).
Furthermore, the solicitation clause is overbroad because
it bars all personally solicited or accepted public support.
Col. Jud. Code, Canon 3; Record 3.
N.
A judge or candidate may
never request or acknowledge the support of a group or even an
individual.
In this way, a candidate could not even ask their
own spouse for public support, but would instead have to delegate
that
request
administrative
to
their
roundabout
campaign
leads
committee.
to
nothing
This
but
kind
of
inefficiency,
impersonal campaigns, and an uninformed citizenry.
II.
The Partisan-Activities Clause is Unconstitutional
A.
The Partisan-Activities Clause Fails Strict Scrutiny
i.
The Partisan-Activities Clause Fails
to Serve a Compelling State Interest
Respondents hereby reallege the foregoing strict scrutiny
analysis from section I(A)(i) supra, in which Respondents contend
16
no compelling state interest is served by New Columbus’s judicial
canons.
ii.
The Partisan-Activities Clause
is Not Narrowly Tailored
In the alternative, should this Court find that judicial
independence
and
impartiality
are,
indeed,
compelling
state
interests, Respondents contend the partisan-activities provisions
are
not
narrowly
tailored
to
serve
such
a
compelling
state
interest and are not the least restrictive means by which to
curtail judicial candidates’ and judges’ First Amendment rights.
As
the
Fourteenth
Circuit
noted,
at
stake
are
judicial
candidates’ freedom of speech and freedom of association rights,
which are core First Amendment rights. Record 17. See Buckley v.
Valeo, 424 U.S. 1, 15 (1976). New Columbus’s partisan-activities
clause restricts the speech of judicial candidates and judges on
the basis of content. N. Col. Jud. Code, Canons 1-3; Record 3.
Content-based restrictions on speech must meet strict scrutiny
analysis.
Turner
Broadcasting
System
v.
Federal
Communication
Commission, 512 U.S. 622, 641 (1994). Under the strict scrutiny
test, the content-based restriction must be narrowly tailored to
serve a compelling state interest. White, 536 U.S. at 774-75.
That is, the regulations must not unnecessarily infringe upon a
judicial
candidate’s
First
Amendment
rights.
American
Civil
Liberties Union of Florida, Inc. v. The Florida Bar, 744 F. Supp.
1094,
1098
(N.D.
Fla.
1990).
Indeed,
a
“person
does
not
surrender his constitutional right to freedom of speech when he
becomes a candidate for judicial office. When a state decides
17
that its trial judges are to be popularly elected . . . it must
recognize the candidates’ right to make campaign speeches and the
concomitant right of the public to be informed about the judicial
candidates.” 744 F. Supp. at 1097.
The Fourteenth Circuit noted two ways in which the partisanactivities
clause
was
not
narrowly
tailored,
and,
therefore,
underinclusive. Record 21. First, forbidding judicial candidates
from
associating
election
campaign
with
a
political
does
nothing
to
organization
uniquely
during
preserve
the
judicial
independence and impartiality when a candidate may have been a
lifelong member of such a group. Record 21. Thus, impartiality
and the appearance thereof are hardly ensured, meaning the risk
of
actual
or
perceived
bias
is
still
high.
Secondly,
the
Fourteenth Circuit noted that the partisan-activities clause’s
exclusion
of
special
interest
groups
-
such
as
the
National
Association for the Advancement of Colored People (NAACP), the
National Rifle Association (NRA), the Human Rights Campaign, or
other national unions - reveals the clause’s underinclusiveness
because
membership
in
these
groups
would
clearly
indicate
a
definite position on issues, such as civil rights, gun control,
and human rights. Record 21-22. By contrast, mere membership in a
political party fails to encapsulate the many permutations of
ideologies
among
Democrats,
Party members, etc.
New
York
supports
City
Libertarians,
Green
For instance, Rudy Giuliani, former mayor of
and
abortion
Republicans,
2008
rights,
Republican
which
is
presidential
a
position
candidate,
more
commonly
shared by Democrats. Abortion: Election Center 2008 – CNN.com,
18
http://www.cnn.com/ELECTION/2008/issues/issues.abortion.html
(last visited Jan. 16, 2008). New Columbus’s partisan-activities
clause
pigeonholes
organization
both
members
into
judicial
an
candidates
alleged
bias
and
that
political
exists
more
commonly with other niche groups that are not within the purview
of
the
judicial
canons.
As
such,
impinging
upon
judicial
candidates’ free speech and association rights is unwarranted and
unconstitutional.
The
Fourteenth
Circuit
correctly
rejected
Petitioners’
analysis that New Columbus should have the prerogative to first
address the greater threats posed by association with political
parties prior to enacting wider regulations to address allegedly
lesser threats posed by association with special interest groups.
Record 22. The narrow agendas of special interest groups just as
much, if not greater, indicators of judicial bias, such that
Petitioners cannot utilize the multi-step reasoning of Republican
Party of Minnesota v. Kelly, 247 F.3d 854, 872 (8th Cir. 2001),
to place special interest groups on the backburner.
Further, judicial independence and impartiality are hardly
achieved by prohibiting judicial candidates from attending and
speaking
at
political
party
gatherings,
from
identifying
as
members of a political party, and from seeking, accepting, or
using
political
party
endorsements
because
those
facts
are
important to voters in an election. Full disclosure of a judicial
candidate engaging in these activities allows for candidates to
exercise their First Amendment rights and for citizens to be
well-informed.
Courts have held that prohibiting judicial speech
19
on political and legal topics deprives the state’s citizenry of
key information to which they are entitled in the democratic
election process. White, 536 U.S. at 788; ACLU, 744 F. Supp. at
1098.
New
Columbus’s
prohibition
on
partisan
activities
effectively proscribes comment “on almost every issue that might
be of interest to the public and the candidates in a judicial
race.” ACLU, 744 F. Supp. at 1098. Although the New Columbus
Judicial
Advisory
Committee
notes
seek
to
eliminate
“the
potential for bias or the appearance of bias for or against
particular
parties”
mindedness,
Principal
and
3;
and
“the
therefore
Appendix
potential
fairness,
A),
New
on
to
constrain
legal
Columbus
issues”
harms
its
open(ACN,
judicial
candidates and citizens with its paternalism.
Indeed,
New
Columbus’s
citizens
should
not
be
underestimated. In ACLU, the court analogized announcing opinions
on
legal
and
advertising.
political
issues
to
744 F. Supp. at 1098.
cases
addressing
attorney
There, the court noted that
similar fears drove bans on attorney advertising “in part because
it was thought that advertising would undermine the public image
of
a
dignified
profession
and
would
inevitably
mislead
the
public.” Id. The court said the lessons learned from attorney
advertising cases included a presumption in favor of disclosure
of information over concealment and the fact that the public
should not be underestimated.
See Peel v. Attorney Registration
and Disciplinary Commission, 496 U.S. 91, 109 (1990); Bates v.
State Bar of Arizona, 433 U.S. 350, 375 (1977). More importantly,
20
the court emphasized the faith the state should have in its
members
of
a
announcing
“respected
views
on
and
legal
learned
and
profession,”
political
issues
and
that
would
not
undermine the public’s confidence in the judiciary. ACLU, 744 F.
Supp. at 1099.
The benefits of full disclosure to both judicial
candidates and New Columbus’s citizens outweigh any argument that
the partisan-activities clause is narrowly tailored, because such
arguments
fall
short
of
justifying
impinging
speech
that
is
actually beneficial to the democratic process.
Petitioners fail to realize partisan activities do not take
place in a vacuum. Knowledge of a judicial candidate’s partisan
organization is one of many pieces of information voters receive
about candidates. Voters, not the state, decide the relevance of
candidate
speech.
concurring).
White,
Candidates
536
U.S.
will
at
talk
794
about
(Kennedy,
their
J.,
character,
education, work habits, and about how he or she would handle
administrative duties if elected. White, 536 U.S. at 774. The
decision must be left to voters to decide what information about
their judicial candidates mitigates or bolsters their fitness to
serve as independent and impartial judges.
B.
The Partisan-Activities Clause is Overbroad
Should
this
Court
find
that
New
Columbus’s
partisan-
activities clause survives strict scrutiny analysis because it is
narrowly
tailored
to
forward
a
compelling
state
interest,
Respondents additionally contend the clause is overbroad. A law
is
unconstitutionally
overbroad
21
if
it
regulates
substantially
more
speech
than
the
Constitution
allows
to
be
regulated,
Broadrick v. Oklahoma, 413 U.S. 601, 615-16 (1973), and a person
to whom the law constitutionally can be applied can argue that it
would be unconstitutional as applied to others. Id. at 610. New
Columbus’s
partisan-activities
bipartisan
support
for
clause
candidates
destroys
and
chills
meaningful
the
speech
of
political organizations that wish to endorse candidates for the
judiciary.
Although the partisan-activities clause is meant to curtail
speech that would be indicative of bias on the part of a judicial
candidate, it concomitantly prevents a judge from talking about
issues of court administration to groups.
Ackerson v. Kentucky
Judicial Retirement and Removal Commission, 776 F. Supp. 309, 312
(W.D. Ky. 1991).
applying
running
laws
an
or
These are issues that have nothing to do with
favoring
efficient
one
group
courtroom.
over
Here,
another,
the
but
clause
with
regulates
substantially more speech than is allowed. It is absurd that a
judicial
candidate
is
gatherings
to
talk
judiciary.
By
holding
citizenry
competent
precluded
about
his
from
or
her
elections,
the
enough
to
elect
attending
political
qualifications
state
its
has
judges.
for
the
deemed
its
It
must
act
accordingly.
Rosenthal v. Harwood, 323 N.E.2d 179, 182-83 (N.Y. 1974)
provides
insight
into
how
the
partisan-activities
clause’s
overbroadness harms potential bipartisan support and the rights
of
political
organizations
to
exercise
their
free
speech
by
endorsing judicial candidates. In Harwood, the court declared
22
invalid
a
Democratic
party’s
bylaws
restricting
a
judicial
candidate from receiving other partisan endorsements. Id. at 180.
The judge in that case received an endorsement for a Nassau
County Judge position from the Nassau County Democratic Committee
and from the Nassau County Conservative Party. Id. What can be
gleaned from this case is the idea that political endorsements
can actually be bipartisan, and work to showcase the appeal of a
judicial
candidate
and
eliminate
the
appearance
of
bias
and
forward the need for open-mindedness the advisory committee notes
address. ACN, Principal 3; Appendix A.
Furthermore, in Concerned Democrats of Florida v. Reno, 458
F. Supp. 60, 65 (S.D. Fla. 1978), the court held that members of
a Florida Democratic party could enjoin the state from enforcing
a statute that restricted political organizations from endorsing
judicial
candidates
because
there
were
other
means
by
which
judicial independence and impartiality could be preserved. The
court held that the statute operated against private citizens who
wished to express their political preferences. 458 F. Supp. at
65. Similarly, the partisan-activities clause restricts not only
the free speech and association rights of judicial candidates,
but also those of the political parties of New Columbus who wish
to participate in the election process by endorsing a judicial
candidate. The court said that the non-partisan nature of the
judicial
election
checked
judicial
independence
the
and
state’s
interest
impartiality,
prohibiting political endorsements needless.
Columbus
holds
non-partisan
judicial
23
making
Id.
elections,
in
preserving
the
statute
Similarly, New
rendering
the
judicial canons regulating partisan activities equally pointless.
The democratic process of the non-partisan election will always
check any alleged abuse stemming from partisan activities. Most
importantly, the effect the partisan-activities clause has on New
Columbus’s political parties’ speech chills the groups’ right to
express to their membership, and to the citizenry of New Columbus
at large, which candidate they support. Such impingement on core
First Amendment rights cannot be allowed.
CONCLUSION
Based upon the foregoing, Respondents respectfully submit
that the decision of the Fourteenth Circuit should be affirmed
and the case remanded to the District Court for New Columbus to
issue
a
declaratory
judgment
and
injunction
against
the
New
Columbus Election Board from enforcing the partisan-activities
and solicitation clauses found in Canons 1-3 of the New Columbus
Code of Judicial Conduct.
Respectfully submitted,
Team 5677
Counsel for Respondents
24