Appendix — Morial v. Judiciary Commission
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Supreme Court, U. &
! FILED
| MAR 28 1978
MICHAEL RODAK, JR., CLERK
3u the
Supreme Court of the Hnited States
OCTOBER TERM, 1977
NO. 77-1266
ERNEST N MORIAL, LUKE FONTANA, CARL GALMON,
RUSSELL J. HENDERSON, and CHRISTINE B. VALTEAU,
Petitioners
versus
JUDICIARY COMMISSION OF THE STATE OF LOUISIANA,
CLEVELANT C. BURTON, JAMES H. DRURY, SIDNEY B. FLYNN,
JUDGE EARL E. VERON, CHARLES H. HECK, JUDGE PAUL B.
LANDRY, JR., JUDGE S. SANFORD LEVY, EDWARD W. STAGG, as
members of the Judiciary Commission of the State of Louisiana; JOE
SANDERS, FRANK W. SUMMERS, ALBERT TATE, JR., JOHN A.
DIXON, JR., WALTER F. MARCUS, PASCAL CALOGERO, JAMES
L. DENNIS, as Justices of the Supreme Court of Louisiana; EDWIN W.
EDWARDS, in his capacity as Governor, State of Louisiana; WILLIAM
J. GUSTE, JR., in his capacity as Attorney General, State of Louisiana;
PAUL J. HARDY, in his capacity as Secretary of State, State of
Louisiana,
Respondents
APPENDIX TO
PETITION FOR A WRIT CF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JEFFERSON, BRYAN & GRAY
Trevor G. Bryan
William J. Jefferson
3828 One Shell Square
New Orleans, Louisiana 70139
(504) 5618933
Counsel for Petitioner
———Sao EEE
A B Letter Service, Inc., 327 Chertres St., Mew Orieens, Le. (504) 581-5555
INDEX
PAGE NO.
Appendix A - Opinion of the United States
EE Fs Cectbddasdbstnsceeceeceees A-1
Appendix B - Opinion of the United States
Court of Appeals - Fifth Circuit .............. A-27
A-1
APPENDIX A
Opinion of the United States District Court
Ernest N. MORIAL, et al.
v.
JUDICIARY COMMISSION OF the STATE OF LOUISIANA
Civ. A. No. 76-3795.
United States District Court, E.D. Louisiana
March 2, 1977
Louisiana appellate judge, who sought to run for mayor of
New Orleans, and several of his supporters sought injunctive
and declaratory relief with respect to constitutionality of
Louisiana statute and judicial canon requiring a judge to re-
sign before becoming a candidate for nonjudicial elective
office. The District Court, Cassibry, J., held that: (1) the
court had power to adjudicate the claims; (2) plaintiffs had
standing and were not required to violate the law in order to
have a justiciable controversy; (3) the statute and canon
created a chilling and inhibitory effect on exercise of plain-
tiffs’ First Amendment rights of freedom of speech and free-
dom of association; (4) although the state has a compelling
interest in not only averting actual impropriety but also in
averting the appearance of impropriety on part of members
of the judiciary, the resignation requirement, which is not
imposed on other public office holders, was not a necessary
or even a reasonably necessary means to effectuate such goal
and (5) the statute and canon were overbroad in that they
purported to regulate conduct and qualifications which the
state cannot constitutionally regulate, namely, qualifications
for national office.
Preliminary injunction issued; declaration granted.
A-2
Jefferson & Bryan, Trevor G. Bryan, William J. Jefferson,
Sidney M. Bach, Cotton, Jones & Dennis, Charles E. Cotton,
Arthur A. Lemann, III, Gerdes & Valteau, Louis A. Gerdes,
Jr., New Orleans, La., for plaintiffs.
Donald B. Ensenat, New Orleans, La. for defendants.
CASSIBRY , District Judge.
This suit was heard on January 31, 1977. Plaintiffs sought
a preliminary injunction and declaratory relief. Defendants’
motions to dismiss, and, alternatively, for summary judg-
ment, were also heard. Defendants’ motions were denied.
A written Order was issued granting plaintiffs’ motions for
declaratory judgment and for injunction on February 2,
1977. In that Order, the Court indicated that it would issue
written Findings of Fact and Conclusions of Law in due
course. The following are those Findings of Fact and Conclu-
sions of Law.
IT IS ORDERED that the Order Staying the Effects of the
Preliminary Injunction of February 7, 1977, and issued on
February 10, 1977, be, and here is, SET ASIDE, and that the
Order of February 7, 1977, be, and it is hereby, restored to
its full effect.
FINDINGS OF FACT
1. In 1972, Plaintiff, Ernest N. Morial, was elected Judge of
the Court of Appeal, Fourth Circuit, State of Louisiana, and
holds the office under the authority of Article 7, Section 9 of
the Constitution of Louisiana of 1921, now superseded by
the provisions of Article 5, Section 22 of the 1974 Louisiana
Constitution.
a en i | lin
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2. Plaintiffs James F. Clark, Jesse A. Dupart, Luke Fon-
tana, Dyan H. French, Marie J. Galatas, Carl Galmon, Robert
F. Guesnon, Russel J. Henderson, Cheryl H. Huffine, Larry
Jones, Carol G. Lobenstein, Novyse E. Soniat, and Christine
B. Valteau, are residents of the United States and registered
voters of the City of New Orleans. Some, or all, of these
plaintiffs have voted for plaintiff Morial in past political elec-
tions in which he was a candidate including his election to
the Louisiana House of Representatives, to be Judge on the
Orleans Parish Juvenile Court, and to his present judgeship.
3. Named as defendants are the Judiciary Commission of
the State of Louisiana, its members, the Louisiana Supreme
Court, its members, Governor Edwin Edwards, individually
and in his capacity as Governor of Louisiana, William Guste,
individually and in his capacity as Attorney General of the
State of Louisiana, and Paul C. Hardy, individually and in his
capacity as Secretary of State of Louisiana.
4. The Judiciary Commission is obligated by law to en-
force the provisions of the Code of Judicial Conduct for the
State of Louisiana, including Canon 7(A)(3). See, In re
Haggerty, 257 La. 1,241 So.2d 469 (1969). Governor Edwin
Edwards, Attorney General William Guste, and Secretary of
State Paul C. Hardy are all obligated to enforce the pro-
visions of Louisiana R.S. 42:39 adopted by the Louisiana
Legislature in 1968. This Statute prohibits any person pre-
sently serving as an elected or appointed Judge of any Court,
except those persons serving as justices of the peace, from
qualifying as a candidate for any nonjudicial local, state or
national office without first resigning his judgeship. The
Statute further provides that any person elected or appointed
Judge of any Court shall not be required to resign his judge-
ship if that person seeks to qualify as a Judge for the same or
any other Court.
S. The predecessor of Article 5 of the 1974 Constitution,
Article VII of the 1921 Constitution, as amended, provided
that the judiciary of Louisiana shall, except in certain narrow
circumstances, be elected. The durations of the various
judicial offices as set forth in the Constitution are uniformly
shorter than those set forth in the 1921 Constitution.
6. Article V, Section 22(A), of the 1974 Constitution pro-
vides that all Judges shall be elected, except as otherwise
provided by law. Article V, Section 25, provides for a Judi-
ciary Commission. This Commission is generally empowered
to supervise the conduct of the judiciary of the State of
Louisiana. It is authorized to recommend to the Supreme
Court of Louisiana that a Judge be censured, suspended, or
removed from office for violation of certain enumerated acts
of misconduct. Section 22 also empowers the Supreme
Court to promulgate rules to implement this Section.
7. The Louisiana Supreme Court, pursuant to the super-
visory powers granted it in Article V, Section 5(A), adopted a
Code of Judicial Conduct on March 5, 1975. Based upon the
model Code of Judicial Conduct of the American Bar Asso-
ciation, this Code contains Canon 7(A)(3). Canon 7(A)(3)
provides that a Judge presently holding a full time judicial
office should resign such office when he becomes a candi-
date, either in a party primary or a general election, for any
nonjudicial office. The only exception to this prohibition
is that a Judge may serve as a delegate to a State Constitu-
tional Convention if the law so provides.
8. The direct predecessor of the present Judiciary Com-
mission, the Committee on Judicial Ethics, enforced the pro-
a, eA tt
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visions of Canons XIX and XX of the Canons of Judicial
Ethics. These Canons, the direct predecessors of Canon
7(A)(3), also provided that a Judge must resign his office
before he could become a candidate for any nonjudicial
office. Canon XX provided that a Judge should resign so
that “‘it cannot be said that he is using the power or prestige
of his judicial position to promote his own candidacy, or the
success of his party.”
9. The provisions of Canons XIX and XX and the pro-
visions of La. R.S. 42:39 have been enforced in the past
against Judges who sought to run for nonjudicial office with-
out first resigning their judicial office. In re Haggerty, 257
La. 1,241 So.2d 469 (1969).
10. Plaintiff Morial has indicated that he intends to be-
come an active candidate for the nonjudicial office of Mayor
in the 1977 election. The Statute and Canon prevent him
from doing so without resigning his present office. The thir-
teen other plaintiffs, all registered voters for the Parish of
Orleans and all active supporters of plaintiff Morial in the
past, have indicated their intent to assist the campaign of
plaintiff Morial in the 1977 mayoralty and vote for plaintiff
Morial in the 1977 open primary for Mayor. The Statute
and Canon prevent plaintiffs from carrying out their intent
unless Morial resigns his judgeship.
ll. By letter dated October 15, 1976, plaintiff Morial re-
quested that the Louisiana Supreme Court grant him a leave
of absence, without pay, from January 1, 1977 through
November 3, 1977. The purpose of this leave of absence was
to allow plaintiff Morial to participate as a candidate in the
1977 campaign for the office of Mayor of the City of New
Orleans. In his letter plaintiff Morial stated that his request
A
for leave was made in the light of the prohibition of Canon
7(A)(3).
12. By letter dated October 21, 1976, the Louisiana Sup-
reme Court, in response to plaintiff Morial’s letter, unani-
mously denied plaintiff Morial’s request to be granted a leave
of absence. In a subsequent letter by plaintiff Morial to the
Louisiana Supreme Court Committee on Judicial Ethics
dated November 3, 1976, plaintiff Morial inquired whether,
in the light of Canon 7(A)(3) he was prohibited from engag-
ing in activities to solicit support for his contemplated cam-
paign for Mayor. On December 2, 1976, the Committee re-
plied unanimously stating that Canon 7(A)(3) prohibits such
a course of action. The Committee maintained that plaintiff
must first resign his office before he announced his candidacy
for that office. The Committee did state, however, that
plaintiff Morial could make a “preliminary survey” in order
to find out the degree of financial support and voter support
that he could expect to receive after he formally announced
his candidacy.
13. During the course of deliberations on the request of
Judge Morial, Eugene J. Murret, Judicial Administrator, re-
commended four alternative courses of action that the
Louisiana Supreme Court could adopt in answering the re-
quest of Judge Morial. Three of the four alternatives were
less restrictive than the alternative eventually adopted. These
three’ recommendations did not require Judge Morial to
resign immediately from the bench if he became a formal
candidate for Mayor. Additionally, two of the recommenda-
tions did not require that he resign until he actually qualified
as a candidate in August of 1977. Indeed, these latter recom-
mendations may even have been implemented in such a way
sO as not to require Judge Morial to resign unless he were
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elected Mayor. The four recommendations were:
1. Grant a leave of absence, without any conditions
or qualifications. In this instance, if Judge
Morial commits any judicial improprieties or
misuses the judicial office, perhaps proceedings
would be instituted against him by the Judici-
ary Commission.
. Grant a leave of absence, with qualifications and
conditions, e.g., prohibit the use of the title
judge, require that he resign the office if he
qualifies for the mayoralty election, make it
clear that he is not absolved of the responsibility
for complying generally with the Code of Judi-
cial Conduct and is not protected by the court’s
order from possible action by the Judiciary
Commission for any abuses.
3. Grant a leave of absence only up to the time of
the qualifying period (August 6-11, 1977)
rather than through November 30, 1977 as re-
quested, on the grounds that a present state
statute would require him to resign anyway in
August 1977 if he qualifies (if he has the statute
declared unconstitutional after an order granting
leave to August 1977, he can always come back
later to have the order extended through the
qualifying and election period; such a shortened
order could be either unrestricted (as in No. 1)
or conditioned (as in No. 2)).
4. Refuse to grant the leave of absence.
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14. Plaintiff Morial has indicated he objects to the require-
ment that he resign his judgeship, and seeks declaratory and
injunctive relief. The thirteen other named plaintiffs state
that they desire plaintiff Morial to retain his judgeship and
become an active candidate for Mayor.
15. The Canon and Statute significantly affect and in-
fringe upon important interests of plaintiffs. These include
the right to vote, rights of expression and association, and the
right to be a candidate for public office.
16. No inherent corrupting influence upon candidates has
been shown to exist in political campaigns.
17. No inherent corrupting influence upon candidates has
been shown to exist in political campaigns in which judicial
officers run for nonjudicial office.
18. No differences have been shown to exist between the
conduct of a political campaign for a judicial office and the
conduct of a political campaign for a nonjudicial office, and
the evidence in the record supports the contention that such
campaigns are conducted in the same ways.
19. There has been no showing that the requirement that
a Judge abstain from running for a nonjudicial office while a
Judge will affect the Judge’s ethics or the respect of the pub-
lic for a Judge and the judiciary, nor has there been a show-
ing that this requirement is needed to reassure the public that
a Judge will be fair and impartial in the discharge of his
duties. The net effect of the Canon and the law is that while
the Judge is required to regularly and frequently subject
himself to the approval of the electorate for judicial office,
he may run for nonjudicial office only under severe restric-
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tions, and at a tremendous risk.
20. Arguments are legion on both sides of the question
of whether Judges should be elected or appointed. Louisi-
ana, in its wisdom, has chosen the former, thus involving
Judges in politics as much as any other elected official.
Since it has, then it may not treat Judge-Candidates any dif-
ferent than it treats other candidates.
21. Having Judges on the bench whose decisions are free
of political influence and who are able to vote their consci-
ence is greatly to be desired, and should be encouraged.
But when Judges run for reelection or for another judgeship
or for a nonjudicial office, particularly when they are requir-
ed to run frequently, they become just as “politicized”’ as
any other candidate. In Louisiana, Judges raise money, en-
gage in political oratory, make campaign promises, appeal to
various political and racial groups, advertise in the media, and
run under political party labels in the same way as do other
candidates running for nonjudicial office.
22. It is true that the type of Canons and laws at issue
here were originally promulgated by people who on the
whole have never been Judges, who have not been in the poli-
tical arena on a frequent basis, and who have not had to
make a choice of resignations before running for another
political office. Theirs is an idealistic approach, but far from
realisitic.
23. No evidence was presented to prove that a Judge who
takes a leave of absence while running for a political office
will somehow be less respected as a Judge, or be less honest
or impartial or fair if he loses and returns to the judgeship.
A fairer inference is that he will be a better Judge because he
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will have done what the people of Louisiana have said that
they like, and that is that he has been out and talked to the
people and updated himself concerning their fears and as-
pirations.
24. It is far easier for nonjudges or even Judges who are
appointed to pontificate about cleansing the judiciary if they
have never had to do battle in the political arena in a State
where Judges are as fair a game as any other candidate, and
politics is played to the hilt.
25. When Judges are required to run almost as frequently
as all other candidates for office, headlines in newspapers
often state that a Judge is “affiliated with this or that politi-
cal organization or faction.’’ There is campaign oratory that
a Judge is a “strict constructionist” or “‘civil righter’’ or a
‘liberal’ or “conservative” or “hard” or “‘soft” or “com-
passionate” with respect to person charged with crime.
26. The State seeks to have the best of both worlds. It
frequently subjects its Judges to the rigors of political cam-
paigns, and then deprives them of a most valuable political
right - the right to run for another office without resigning
the judgeship.
27. The Canon and Statute would make far more sense
in the cases of Judges who are appointed, or who, after being
elected, are required to run against their record rather than
against a person. While the Canon and Statute have a noble
purpose, they do little to enhance the integrity of the judici-
ary. If any harm to Judges results from politics as such, then
it comes from the fact that the State requires Judges to regu-
larly subject themselves to the political process.
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28. I think it may be safe to say that the State requires
Judges to run for political office so that they can be con-
stantly reminded that they may not always vote their con-
science, but must seriously consider in every decision they
make the prejudices and biases of the electorate. It makes a
mockery of the constant admonition that Judges receive that
they should not succumb to public clamor. Indeed, life
appointments have been severely criticized by many, because
such Judges too often decide cases contrary to the views of
the general public. And the argument has been made that
had these Judges been subjected to periodic elections, their
decisions would have been quite different.
29. In sum, the State’s policy is hypocritical. It requires a
Judge to be constantly seasoned in the political process, and
then seeks to gloss over this political exposure by the thin
facade of the Canon and Statute, which are designed to give
the public the idea that even though Judges are elected, that
they are not necessarily required to engage in politics at elec-
tion time.
30. None of these findings should be construed as assuc-
ing any State Judge of being politically motivated in any
decision he might render. Without exception, I am con-
vinced that they decide their cases fairly and impartially,
based on the law and evidence.
31. Viewed against the reality of the full involvement in
politics, then there is no rational basis for thus distinguish-
ing between Judges who run for reelection or for a higher
judicial office and Judges who run for nonjudicial office.
32. There are numerous less onerous alternatives to re-
quiring resignation of plaintiff Morial in order for him to
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run for nonjudicial office. Some of them would adequately
protect the State in vindicating their interest in a fair and im-
partial judiciary and the appearance of being fair and impar-
tial. Under the circumstances he would remain subject to
the Code and the law if he conducted himself improperly.
33. Plaintiffs other than Morial named in the complaint
have voted for Morial in the past and desire that he be a can-
didate for Mayor so that he may espouse the issues in which
they have an interest and so that they may have the oppor-
tunity to vote for him in the next mayoralty election.
34. Other candidates for Mayor have already announced
their candidacy, have begun to solicit funds to influence
voters, to take polls, and to organize political campaigns.
35. Plaintiff Morial is suffering, and will continue to suf-
fer, irreparable harm unless a preliminary injunction issues to
bar the enforcement of the referenced Canon and Act.
36. One stated purpose of the Act and the Canon is to
prevent a Judge from using the prestige of his office in his
campaign for a nonjudicial position.
37. A judge who resigns his office to run for a nonjudicial
position may trade on the prestige of his former position
with as much effect as a Judge who takes leave of absence
from his judicial position to run for a nonjudicial office.
38. Judges are presently permitted under State law to
‘“tuse’”’ the prestige of their office in their campaign for re-
election or election to a higher judicial office.
39. Nonjudicial elected officials are presently permitted to
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‘“‘use’”’ the prestige of their office in their campaigns for other
nonjudicial offices or for judicial offices.
CONCLUSIONS OF LAW
[1] 1. The Court has judicial power under Article III of
the United States Constitution and is authorized under 28
U.S.C. §1343(3) (1970), 28 U.S.C. § 82201-202 (1970), and
42 U.S.C. §1983 (1970) to adjudicate plaintiffs’ claims for
declaratory and injunctive relief with respect to the consti-
tutionality of LaR.S. 42:39 and Canon 7(A)(3) of the Code
of Judicial Conduct of Louisiana. Steffel v. Thompson, 415
U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Golden v.
Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113
(1969); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962).
[2] 2. Plaintiffs’ claim that the Statute and Canon violate
the equal protection clause of the Fourteenth Amendment of
the United States Constitution .s “‘ripe’’ for adjudication.
The Statute and Canon both provide that a Judge must resign
his office before he becomes a candidate for nonjudicial elec-
tive office. This requirement is not placed upon other non-
judicial elected office holders. Plaintiffs have pursued all
possible avenues of relief according to the laws of Louisiana.
The only other step which plaintiff Morial could take would
be to violate the Statute and Canon by becoming a full fledg-
ed candidate for Mayor, thereby risking censure, fine, and
possible removal from office. The law does not require that
plaintiffs violate a law in order to have a ‘“‘justiciable” con-
troversy. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209,
39 L.Ed.2d 505 (1974); Golden v. Zwickler, 393 U.S. 103,
89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Aetna Life Insurance
Company v. Haworth, 300 U.S. 27,57 S.Ct. 461, 81 L.Ed.
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617 (1937).
[3] 3. Plaintiffs have standing to raise the issue of the un-
constitutionality of the Statute and Canon as being in viola-
tion of the First and Fourteenth Amendments to the Consti-
tution. Plaintiff Morial has standing to assert such violations
because he is “injured in fact” by defendants’ actions and be-
cause the interest which he seeks to protect is “arguably
within the zone of interests to be protected or regulated by
the Statute or Constitutional guarantee in question.” Asso-
ciation of Data Processing Service Organizations, Inc. v.
Camp, 397 U.S. 150, 153; 90 S.Ct. 827, 830, 25 L.Ed. 2d
184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832,
25 L.Ed.2d 192 (1970). The thirteen other plaintiffs have
standing because the Statute and Canon infringe upon their
right to vote and their right to freely associate in the upcom-
ing electoral campaign. See, e.g., Reed v. Giarrusso, 462 F.2d
706 (5th Cir. 1972); National Student Association v. Her-
shey, 134 U.S.App.D.C. 56, 412 F.2d 1103 (1969); Johnson
v. Rockefeller, 58 F.R.D. 42, 46-47 (S.D.N.Y. 1973); Moore
v. Moore, 229 F Supp. 435 (S.D. Ala. 1964).
4. There is a concrete, actual controversy between the
parties who have adverse legal interests. This controversy
perforce touches the legal relations of the parties. The con-
troversy is capable of being resolved through a specific decree
which will be conclusive in character through injunction or
otherwise. The Court will not be issuing an “‘advisory opin-
ion’’ in any sense of that term. Aetna Life Insurance Co. v.
Haworth, 57 S.Ct. 461, 300 U.S. 227, 240-241, (1937); 13,
Wright, Miller & Cooper, Federal Practice and Procedure,
§3529 (1975).
[4] 5. A Federal claim arising under 42 U.S.C. §1983
A R.A er tae -
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(1970) is supplementary to any State remedies that may be
available to the plaintiffs. There is no requirement in the pre-
sent case that plaintiffs exhaust State remedies in order for
this Court to assert jurisdiction over the $1983 claims.
Houghton v. Shafer, 392 U.S. 639, 88, S.Ct. 2119, 20 L.Ed.
2d 1319 (1968); Hobbs v. Thompson, 448 F.2d 456 (5th
Cir. 1971); Hall v. Garson, 430 F.2d 430 (5th Cir. 1970);
Mortillaro v. State of Louisiana, 356 F.Supp. 521 (E.D.La.
1972).
[5] 6. The principles of comity and “federalism” do not
serve to bar this Court from granting declaratory or injunc-
tive relief. No proceeding in State Court is pending in this
controversy concerning the Statute and Canon of either a
civil or criminal nature. Therefore, abstention is not warrant-
ed. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39
L.Ed.2d 505 (1974); Canton v. Spokane School District, 498
F.2d 840 (9th Cir. 1974); Indiana State Emp. Ass’n, Inc. v.
Boehing, 511 F.2d 834 (Sth Cir. 1975).
[6,7] 7. The Statute and Canon create a “chilling” and
inhibitory effect upon the exercise of plaintiffs’ rights of
freedom of speech and freedom of association guaranteed
by the First Amendment of the United States Constitution.
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.
Ed.2d 22 (1968); NAACP v. Button, 371 U.S. 415, 83 S.
Ct. 328, 9 L.Ed.2d 405 (1963); Younger v. Harris, 401 U.S.
37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970); Garrison v. Louisi-
ana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964);
National Student Association v. Hershey, 134 U.S.App.D.C.
56, 412 F.2d 1103 (1969); Reed v.Giarrusso, 462 F.2d 706
(Sth Cir. 1972); Hobbs v. Thompson, 448 F.2d 456 (Sth Cir.
1971); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.
2d 659 (1976); Gray v. City of Toledo, 323 F.Supp. 1281
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(N.D.Ohio 1971). It is widely recognized that freedom of
speech as guaranteed by the first Amendment occupies a
“preferred position” in our constitutional scheme. See, e.g.,
Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513
(1949); McKay, The Preference of Freedom, 34 N.Y.U.L.
Rev. 1182 (1959). The reason for such deference is obvious.
Without that freedom, all of the other rights guaranteed by
our Federal Constitution would be meaningless because with-
out freedom of expression, none of the other rights could be
implemented.
[8] 8. The Statute and Canon “chill” and inhibit plain-
tiff Morial’s rights to freedom of speech and freedom of
association. Freedom of association and expression are in-
herent in the process of becoming a candidate for public of-
fice. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.
2d 24 (1968); Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315,
39 L.Ed.2d 702 (1974); Mancuso v. Taft, 476 F.2d 187, 195-
98 (lst Cir. 1973); Hobbs v. Thompson, 448 F.2d 456 (Sth
Cir. 1971). Indeed, the right to become a candidate for pub-
lic office has been held to be a right protected by the First
Amendment because the rights of freedom of speech and
association are inherent in, and are inextricably intertwined
with, the process of becoming a political candidate. Running
as a candidate for public office is one means by which these
rights are implemented. Mancuso v. Taft, supra, at 196;
Williams v. Rhodes, supra; Hobbs v. Thompson, supra.
[9] 9. The activities embraced by the concept of candi-
dacy, including, but not limited to, public debates, soliciting
campaign funds, advocating viewpoints on the political
issues of the day, organizing a political party, canvassing sup-
porters, and the distribution of handbills have traditionally
been granted First Amendment protection because they im-
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plement both the rights of freedom of speech and freedom of
association. See, e.g., Whitney v. California, 274 U.S. 357,
47 S.Ct. 641, 71 L.Ed. 1095 (1927); Griswold v. Connecti-
cut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965);
United States Civil Service Commission v. National Associa-
tion of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.
Ed.2d 796 (1973); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct.
613, 46 L.Ed.2d 659 (1976); Mancuso v. Taft, supra; Hobbs
v. Thompson, supra; Lecci v. Cahn, 360 F.Supp. 759 (E.D.
N.Y. 1973); Gray v. City of Toledo, 323 F.Supp. 1281 (N.D.
Ohio 1971).
[10] 10. Freedom to associate encompasses the right to
support a candidate of one’s choice, to hear that candidate’s
views on the issues of the day, and to assist in developing
support for that candidate. Such freedom contemplates
people forming a group which will support the candidate of
their choice. This right to form a political party is an inte-
gral part of implementing the freedom to associate. All of
these actions are also intimately associated with implement-
ing and making effective an individual's rights to freedom of
expression. Williams v. Rhodes, supra; Bullock v. Carter,
405 U.S. 134, 92 S.Ct. 849, 31 L.Ed. 2d 92 (1972); Lubin
v. Panish, supra; Mancuso v. Taft, supra; and Hobbs v.
Thompson, supra.
[11] 11. The Statute and Canon prohibit only some,
not all, public officials, in the present case Judges, from be-
coming candidates for nonjudicial office. In evaluating can-
didacy restrictions for purposes of ascertaining the standard
of review, not only must the rights of the potential members
of the affected class be considered but also the rights of the
public at large. This is so because a restriction upon who
may become a candidate inevitably restricts the right to vote.
A-18
As stated by Chief Justice Burger in Bullock v. Carter, supra,
92 S.Ct. at 856, “The rights of voters and the rights of candi-
dates do not lend themselves to neat separation; laws that
affect candidates always have at least some theoretical,
correlative effect on voters.” See also, Mancuso v. Taft,
476 F.2d 192-94. In the present context, the effect of this
candidacy restriction is more than “theoretical” because a
uniquely qualified class of public officials is denied the right
to freely run as a candidate for a nonjudicial office. This
restriction has caused an immediate adverse effect upon all
voters, including the thirteen plaintiffs and all others who
may have made plaintiff Morial their choice in the open pri-
mary for the 1977 mayoralty election. These latter voters
will be denied the right to vote for the announced candidate
of their choice if the Statute and Canon are enforced.
Williams v. Rhodes, supra; Bullock v. Carter, supra; Mancuso
v. Taft, supra.
[12] 12. In evaluating restrictions on candidacy, the
function of the Federal Courts is to “examine in a realistic
light the extent and nature of their impact on voters.”
Bullock v. Carter, 92 S.Ct. at 856. The Statute and Canon
significantly affect the rights of voters because they indirect-
-ly and substantially limit the pool of candidates from which a
nonjudicial elected official may be chosen. Because these
restrictions are directed to only one class of potential candi-
dates and because this potential class of candidates is uni-
quely’ qualified to serve as public officials because of their
training and experience, the Statute and Canon discriminate
against the voters and their right to vote by limiting the range
and number of potential candidates. Mancuso v. Taft, 476
F.2d at 193-94; Williams v. Rhodes, supra. Because the
Statute and Canon restrict the “fundamental” rights of the
thirteen named plaintiffs, such as the right to vote and the
A-19
right to work for the candidate of their choice, and their
First Amendment rights of freedom of expression and asso-
ciation, these prohibitions substantially affect the rights of
this group. Mancuso v. Taft, supra; Williams v. Rhodes,
supra; Bullock v. Carter, supra.
[13] 13. As stated by the Court in Harper v. Virginia
Board of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 1081,
16 L.Ed.2d 169 (1966), ‘‘[i]t is enough to say that once the
franchise is granted to the electorate, lines may not be drawn
which are inconsistent with the Equal Protection Clause.”
By requiring a member of the affected class to choose be-
tween becoming an active candidate for a nonjudicial office
and resigning or not running at all, the Statute and Canon not
only produce a chilling effect upon the exercise of First
Amendment rights of all the plaintiffs, but also require a
Judge to make the extremely difficult choice of either giving
up his judgeship or giving up the candidacy. The effect of
these prohibitions not only infringes upon the First Amend-
ment rights of freedom of association and freedom of speech,
but also significantly inhibits the exercise of these and other
interrelated “fundamental” rights of plaintiffs. One obvious
way in which resignation infringes upon these rights and
‘“‘chills’’ their exercise is by requiring a Judge to give up, per-
haps permanently, what may be his only source of income
before that Judge may even officially qualify for the non-
judicial office. La.R.S. 42:39; Bullock v. Carter, 405 U.S. at
143, 92 S.Ct. at 849; Williams v. Rhodes, supra; Mancuso v.
Taft, 476 F.2d at 193-95.
[14] 14. From the above analysis of the law, it is obvious
that the right to become a candidate for public office is both
a “fundamental” interest and a right inherent in, and inter-
twined with, the rights of freedom of association and free-
A-20 -
dom of speech protected by the First Amendment. Because
of these factors, the “strict scrutiny” mode of equal protec-
tion analysis must be applied by the Court. Bullock v. Car-
ter, supra; Williams v. Rhodes, supra; Lubin v. Panish, supra;
Mancuso v. Taft, supra; Hobbs v. Thompson, supra.
15. The right to run for public office is not a “‘privilege”’
conferred upon plaintiff by State law as defendants maintain.
The case of United Public Workers v. Mitchell, 330 U.S. 75,
67 S.Ct. 556, 91 L.Ed. 754 (1947), is relied upon heavily by
defendants to support the proposition that public office is a
“right”’ not a privilege. The Mitchell case has been drained of
much of its vitality by the development of constitutional
doctrine within the past quarter century. The deference
given by the Mitchell Court to legislative judgment concern-
ing restrictions on an individual's First Amendrnent freedom
for the good running of government has not been subscribed
to in recent decisions. See, e.g., Sweezy v. State of New
Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311
(1957); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842
37 L.Ed.2d 853 (1973); Elrod v. Burns, 427 U.S. 347, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976); Hobbs v. Thompsen,
supra. See generally Van Alstyne, The Demise of the Right -
Privilege Distinction in Constitutional Law, 81 Harv. L.Rev.
1439 (1968). As stated in Elrod v. Burns, 96 S.Ct. at 2684,
“{T] his Court now has rejected the concept that Constitu-
tional rights turn upon whether a governmental benefit is
characterized as a ‘right’ or as a ‘privilege’.’’ It is an accept-
ed fact that government, as an employer, has increased in size
so as to become a large scale employer. See, e.g., Emerson,
The System of Freedom of Expression, 568 (1970); U.S.
Bureau of the Census, Statistical Abstract of the United
States (1976 Ed.) It is also widely recognized that there has
been an enormous increase in the number of laws and _regu-
A me -
A-21
lations which the State must enforce. Together, these fac-
tors undermine the argument that government employment
is a “privilege”. As stated by Van Alstyne, supra, at 1461,
“(With the increasing size of government as an economic
unit . . it is simply no longer true that a particular infringe-
ment related to employment by government is no greater
than a particular infringement made by a private employer.”
In Hobbs v. Thompson, 448 F.2d at 472-74, the Fifth Cir-
cuit refused to accept the right-privilege distinction as set
forth in Mitchell.
[15] 16. Both the Statute and Canon significantly and
substantially burden each of the ‘“fundamental”’ interests in-
volved in this case and unduly restrict the First Amendment
rights of the plaintiffs. Both the Statute and Canon are
burdensome to the exercise of these fundamental rights and
restrict the exercise of First Amendment freedoms by inhibit-
ing, or curtailing, the exercise of the fundamental rights and
the implementation of the First Amendment freedoms. The
plaintiffs’ fundamental rights to vote and to run for office are
burdened because they cannot vote for the announced candi-
date of their choice and because plaintiff Morial cannot be-
come an announced candidate for the office of Mayor. The
First Amendment freedoms of plaintiffs are also substantially
infringed upon because plaintiffs are not able to implement
their rights to associate in a political campaign thereby mak-
ing concrete their rights of freedom of expression by having
plaintiff Morial, their standard bearer, run for Mayor in 1977.
C.F. Williams v. Rhodes, supra; Bullock v. Carter, supra;
Mancuso v. Taft, supra; Hobbs v. Thompson, supra.
[16] 17. The State has a substantial interest in the
regulation of the mode by which these “fundamental”’ in-
terests and First Amendment Rights are implemented. How-
A-22
ever, the regulation of such activity in the area of the First
Amendment must be done within the narrow confines of the
concept of public order and safety. Cox v. Louisiana,379 U.
S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The
State may regulate these ‘fundamental”’ interests under the
equal protection clause of the Fourteenth Amendment only
when the State can show that such regulation is necessary to
achieve a “‘compelling’’ State interest. Dunn v. Blumstein,
405 US. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Kramer
v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886,
23 L.Ed.2d 583 (1969); NAACP v. Button, 371 U.S. 415,83
S.Ct. 328, 9 L.Ed.2d 405 (1963).
[17] 18. The State has a “compelling” interest in not
only averting actual impropriety, but also in averting the
appearance of impropriety on the part of the members of
‘its judiciary. The State obviously has such a compelling in-
terest in maintaining the integrity, and the appearance of in-
tegrity, of its judiciary as well. See, e.g.,Friedman v. Court
on the Judiciary of New York, 375 U.S. 10,84S.Ct. 70, 11
L.Ed. 2d 40 (1963); Johnson v. Avery, 393 U.S. 483, 89
S.Ct. 747, 21 L.Ed.2d 718 (1969); Napolitano v. Ward, 457
F.2d 279 (7th Cir. 1972). Nevertheless, we conclude that the
exclusionary measure taken by Louisiana--a flat prohibition
of not being able to seek nonjudicial office by members of the
judiciary— is not a necessary means, or, in fact, even a reason-
ably necessary means, to effectuate these compelling State
interests. As observed by Justice Marshall, “[S]tatutes af-
fecting constitutional rights must be drawn with ‘precision’.
NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct.328,340 .9
L.Ed.2d 405 (1963); U.S. v. Robel, 389 U.S. 258, 265, 88
S.Ct. 419, 424, 19 L.Ed.2d 508 (1967).” Dunn v. Blumstein,
405 US. at 343, 92 S.Ct. at 1003.
A-23
19. The Statute and Canon are far too imprecise a means
to pursue these ‘“‘compelling’”’ State interests. The nature of
the regulation put forth in the Statute and Canon are un-
necessary and ineffective in achieving the articulated objec-
tives of the State. A broad prophylactic prohibition requir-
ing a Judge tc resign his position before he becomes a candi-
date for a nonjudicial office is far too heavy handed a means
to achieve judicial integrity and actual propriety as well as
the appearance of both. Less heavy handed means exist.
Some of those alternatives have been set forth above. Al-
though these proposals were made in the context of an inter-
pretation of Canon 7(A)(3), these alternatives obviously are
less restrictive than the provisions of both La.R.S. 42:39 and
Canon 7(A)(3) as presently constructed.
20. Assuming that a blanket rule were necessary to
achieve compelling State objectives, there has been no de-
monstration by defendants as to why the prohibitions con-
tained in the Statute and Canon should be directed only to
Judges. Similar prohibitions directed to the police depart-
ments and to firemen have been struck down, respectively,
in the cases of Mancuso v. Taft, supra, and Hobbs v. Thomp-
son, supra, because the “‘compelling’’ State interests did not
justify the broad, prophylactic measures employed by the
State to protect those interests. We must conclude that
Judges qua Judges are no different from policemen and fire-
men in this regard. Although the functioning of our system
of law depends a great deal upon how the public views the
men who operate that system, it is obvious that the trust of
the public is not dependent upon how only one part of that
system is viewed. It is not necessary to the accomplishment
of the “compelling” interests of the State that only Judges be
prohibited from exercising certain of their fundamental in-
terests and First Amendment rights simply because they are
A-24
Judges when other components of that system are not. Van-
cuso v. Taft, supra; Hobbs v. Thompson, supra.
21. Since candidates for judicial office are subjected to
the same political pressures as candidates for nonjudicial of-
fices, and since Judges in seeking election or reelection to
other judicial offices are immersed in the political process to
the same degree as other elected officials seeking nonjudicial
office, the Statute and Canon are not ..:eans even “‘reasonab-
ly calculated” to achieve the “compelling’’ State interests.
Williams v. Rhodes, supra; Bullock v. Carter, supra; Mancuso
v. Taft, supra; and Hobbs v. Thompson, supra.
22. Permitting Judges to run for nonjudicial offices does
not introduce any additional real or apparent threat to the
integrity of the judiciary which does not already exist in a
political system where most State Judges are required to
stand for election or reelection every six years. Because
Judges must stand for election more often, the Statute and
Canon are not even reasonably calculated to achieve the com-
pelling State interests of promoting integrity and propriety
of the judiciary. In addition, the evidence shows that there
are no significant differences between a candidate for judi-
cial office, a candidate for reelection to a judicial office, and
a candidate for a nonjudicial office. All must engage in
“‘politics’’, such as raising campaign funds and soliciting parti-
san and nonpartisan political endorsements before and during
the campaign. C. F. Williams v. Rhodes, supra; Bullock v.
Carter, supra; Mancuso v. Taft, supra; and Hobbs v. Thomp-
son, supra.
23. The Statute and Canon do not articulate any ‘‘com-
pelling” reason, other than somehow Judges must be more
“pure”, or more subject to the spectre of seeming, as well as
A-25
actual, conflicts of interest simply because they are Judges.
While the concept that a Judge must avoid soilinghis office
by soliciting finances and voter support may be a laudable
goal, it ignores the harsh realities of the Louisiana system as
presently confected. If there is a basis for holding Judges
qua Judges to such harsh prohibitions, while at the same time
not holding other elected officials or candidates for election
to similar harsh standards, the State has failed to show it.
Because of this, the State has not discharged its burden of
demonstrating that the means are “‘necessary”’ to protect
“compelling’’ State interests. Dunn v. Blumstein, supra;
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965); Harper v. Va. Bd. of Elections, 383
U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1963).
[18] 24. The Statute and Canon sweep too far into the
area of protected freedoms in that both attempt to regulate
the ability of Louisiana Judges to run for local office as well
as national office. As such, they must also fall under the
policies of the ‘“‘Overbreadth Doctrine’. This ‘‘Overbreadth
Doctrine”’ is based upon the principle that “a government
purpose to control or prevent activities constitutionally sub-
ject to State regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of
protected freedoms.” Zwickler v. Koota, 389 U.S. 241, 250,
88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); NAACP v. Ala-
bama ex rel. Flowers, 377 U.S. 288, 84 S.Ct. 1302, 12 L.Ed.
2d 325 (1964). See Note, The First Amendment Over-
breadth Doctrine, 83 Harv.L.Rev. 844 (1970). As is evident
from the foregoing analysis, the Statute and Canon sweep
too far because they purport to regulate conduct and qualifi-
cations which the State cannot constitutionally regulate,
namely, the qualifications for national office. See, e.g., Stack
v. Adams, 315 F.Supp. 1295 (N.D.Fla.1970); C.F. Powell v.
A-26
McCormick, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491
(1969).
[19] 25. Plaintiffs will suffer irreparable injury unless the
defendants are enjoined from enforcing the unconstitutional
provisions of La.R.S. 42:39 and Canon 7(A)(3) of the Code
of Judicial Conduct. Plaintiff Morial will be at a distinct dis-
advantage vis-a-vis other candidates for the office of Mayor
of the City of New Orleans in the preparation of his cam-
paign. In addition, the other plaintiffs’ “fundamental” rights
and First Amendment freedoms will be unduly burdened or
perhaps even denied unless the prohibitions of the Statute
and Canon are enjoined. The Court finds that the plaintiff
would be significantly and irreparably harmed by the prohi-
bitions before a decision on the merits could be reached; that
the irreparable harm which plaintiffs will suffer outweighs
any possible harm that may accrue to the defendants as they
have less drastic means of achieving the ‘‘compelling’’ State
interests; that plaintiffs have made out a prima facie case
which indicates that they would succeed on the merits; and
finally, that the public interest would best be served by grant-
ing the plaintiff preliminary injunctive relief. A Quaker
Action Group v. Hickel, 137 U.S. App.D.C. 176, 421 F.2d
1111, 1116 (1969); Keefe v. Geanakos, 418 F.2d 359 (lst
Cir. 1969); Henry v. Greenville Airport Comm‘n, 284 F.2d
631 (4th Cir. 1969).
A-27
APPENDIX B
Opinion of United States Court of Appeals,
Fifth Circuit
Ernest N. MORIAL et al.,
Plaintiffs-Appellees
v
JUDICIARY COMMISSION OF the STATE OF
LOUISIANA et al.,
Defendants-Appellants
No. 77-1491
United States Court of Appeals, Fifth Circuit.
Dec. 13, 1977
Appeal was taken from a judgment entered in the United
States District Court for the Eastern District of Louisiana
at New Orleans, 438 F.Supp. 599, Fred J. Cassibry, J., hold-
ing unconstitutional a Louisiana statute and canon of judicial
conduct requiring judges to resign their position before an-
nouncing their candidacy for nonjudicial office. The Court
of Appeals, Goldberg, Circuit Judge, held that the statute and
canon were violative of neither the First Amendment nor
equal protection.
Reversed.
Fay, Circuit Judge, dissented and filed opinion.
A-28
Appeal from the United States District Court for the
Eastern District of Louisiana.
Before BROWN, Chief Judge, THORNBERRY, COLE-
MAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN,
CLARK, RONEY, GEE, TJOFLAT, HILL, FAY and RUBIN,
Circuit Judges.
GOLDBERG, Circuit Judge:
In this appeal, we are asked to rule upon the constitution-
ality of a Louisiana statute and canon of judicial ethics which
have the effect of requiring a judge to resign his seat on the
bench in order to run for elective non-judicial office. The
issue is one which implicates important interests in political
participation and equally important ones in the impartial ad-
ministration of justice. Upon full consideration of the very
difficult and perplexing questions presented, we conclude
that the challenged statute and canon are constitutional and,
therefore, reverse the district court.
FACTS
Plaintiff Morial is a judge of the Court of Appeal, Fourth
Circuit, State of Lovisiana. Judge Morial was interested in
becoming a non-party candidate for the office of the Mayor
of New Orleans. By letter of October 16, 1976, he requested
that the Supreme Court of Louisiana grant him a leave of
absence, without pay, from his judicial duties in order that
he might conduct a campaign for the mayoralty. Morial’s
request was made in view of Canon 7(A)(3) of the Louisi-
ana Code of Judicial Ethics which provides:
A-29
A judge should resign his office when he becomes a
candidate either in a party primary or in a general
election for a non-judicial office, except that he
may continue to hold his judicial office while
being a candidate for election to or serving as a
delegate in a state constitutional convention, if he
is otherwise permitted by law to do so.'
The Louisiana Supreme Court unanimously denied Morial’s
request for a leave of absence. He then addressed a letter to
that court’s Committee on Judicial Ethics requesting an ad-
visory opinion on the permissibility of engaging in activities
to solicit support for his contemplated campaign 2 The Com-
mittee was unanimously of the view that such activity was
prohibited and that Judge Moriai would be required to resign
before announcing his candidacy.
Judge Morial, joined by thirteen citizen-voters who indi-
cated their support for his candidacy, then brought suit in
federal district court seeking a declaration that Canon 7(A)(3)
was unconstitutional and enjoining its enforcement. Named
as defendants were the Judiciary Commission of the State of
Louisiana, its members, the Louisiana Supreme Court, and its
members. The plaintiffs also sought a declaration that Lou-
1. La.Code of Judicial Conduct Canon No. 7(A)(3) (1975). The Lou-
isiana canon is identical to that recommended by the American Bar
Association, see ABA Code of Judicial Ethics Canon No. 7(A)(3)
(1973), and a similar provision is in force in many states. Appendix
1 contains a list of such states.
The analogous federal code contains a similar prohibition. Code of
Judicial Conduct for United States Judges Canon No. 7(A)(2) (1973).
2. The Committee is established and given the authority to render ad-
visory opinions by the Code itself. La.Code of Judicial Ethics Com-
mittee on Judicial Conduct (1975).
A-30
isiana R.S. 42:39, which prohibits any judge, save a justice
of the peace, from qualifying for election to any non-judicial
office unless he had resigned not less than twenty-four hours
prior to the qualifying date, La.Rev.Stat.Ann. §42:39
(Pocket Part 1977), was unconstitutional and prayed for an
injunction against its enforcement. The Governor, Attorney
General and Secretary. of State of Louisiana in their individ-
ual and official capacitites were named as defendants in view
of their obligation to enforce the “resign-to-run”’ statute.
[1] The district court granted the plaintiffs’ prayer for
relief. Judge Cassibry, in a scholarly and penetrating opinion,
438 F.Supp. 599, found that the canon and statute created a
“chilling” and inhibitory effect upon the exercise of the
plaintiffs’ rights of freedom of speech and freedom of asso-
ciation guaranteed by the First Amendment of the United
States Constitution. The court concluded that the prohibi-
tion of judicial candidacies for non-judicial offices was ‘‘not
a necessary means, or in fact, even a reasonably necessary
means, to effectuate’ the admittedly compelling state in-
terest in maintaining the integrity of the judiciary. On these
premises, the district court held that the canon and statute
violated the first amendment and the equal protection clause
of the fourteenth.?
3. Although oral argument in this case was heard by a three-judge pane!
of this court, on November 3, 1977 it was determined to decide this
case en banc. in the order granting defendants’ motion for en banc
consideration, the en banc court, Judge Fay dissenting, voted to stay
the order of the district court pending further order of this court.
Subsequent to the entry of this order but prior to the election held
November 12, plaintiff Morial resigned his judgeship. Just prior to and
subsequent to the general election, several candidates in the primary
and general elections brought suit in state court challenging Morial’s
right to run. The Louisiana intermediate appellate court held, ap-
parently as a matter of state law, that Morial had properly qualified as a
A-31
JURISDICTION
[2,3] Defendants urge that the district court should have
dismissed this suit for lack of subject matter jurisdiction.
They assert that any threat to the plaintiffs’ interests was
purely hypothetical and speculative when the complaint was
filed and thus did not give rise to a justiciable case or contro-
versy. We cannot agree. The court’s power to adjudicate a
case arising under 42 U.S.C. §1983, pursuant to jurisdiction
conferred by 28 U.S.C. §1343(3) and 28 U.S.C. %2201-
2202, is not conditioned upon a plaintiff's actually proceed-
ing to violate some assertedly unconstitutional state law prior
to bringing suit in federal court. Pre-conduct challenges to
the validity of laws burdening first amendment rights are
among the essential bulwarks of a system of free expression.
candidate in view of the fact that the operation of the statute which
would have barred his candidacy was suspended by the order of the dis-
trict court in this case. (We have no occasion to consider in this case
whether, as a matter of federal law, Louisiana would have been required
to give this effect to the district court’s order.) By denial of writs in
these suits, the Louisiana Supreme Court affirmed that plaintiff Morial
was validly a candidate for election. On November 12, 1977, Morial was
elected Mayor of New Orleans.
The parties to this suit agree that the case is not moot notwithstand-
ing these events. We concur. Suits challenging the validity of state elec-
tion laws are classic examples of cases in which the issues are “capable
of repetition, yet evading review.” The Supreme Court has decided
number of such cases after the challenged election had already taken
place and no request for retrospective relief could be granted. Ameri-
can Party of Texas v. White, 415 U.S. 767, 770 n. 1, 94 S.Ct. 1
1301 n. 1,39 L.Ed.2d 744,n. 1 (1974); Storer v. Brown, 415 U.S. 724,
737 n.B, 94 S.Ct. 1274, 1282 n.B, 39 L.Ed.2d 714 (1974); Moore v.
Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).
In none of these cases was the suit brought as a formal class action; nor
did the Court pause to consider whether the particular plaintiff would
be subject to future harm. in language directly applicable to this case,
the Storer Court wrote,
The 1972 election is long over, and no effective relief can be provid-
ed to the candidates or voters, but this case is not moot, since the
issues properly presented, and their effects on independent candi-
A-32
See Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561,
45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452,
462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Dombrowski v.
Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 14 L.Ed.2d 22
(1965). While courts have an interest in having concrete fac-
tual situations presented for judicial consideration, this in-
terest would not be.advanced by withholding anticipatory
relief where, as here, the course of conduct in which the
plaintiff plans to engage is clear to the court at the time the
suit is filed. Indeed, in the case at bar, just as in Steffel, the
plaintiff outlined his anticipated course of conduct with
sufficient clarity to the state enforcement authorities to en-
able them to determine. that his conduct would violate the
state rule and expose him to sanctions. In such circum-
stances, the threat of punishment for engaging in protected
activity cannot be characterized as “imaginary or specula-
tive,” cf. Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746,
27 L.Ed.2d 669 (1971).
dacies, will persist as the California statutes are applied in future
elections. This is, therefore, a case where the controversy is ‘capable
of repetition yet evading review.’ ”
Storer v. Brown, supra, 415 U.S. at 737 n. 8, 94 S.Ct. at 1282, n.8;
Cf Magill v. Lynch, No. 76-1632, 560 F.2d 22, at 25 n. 1 (1st Cir.
1977) (election case decided after election not moot on a different
theory). The effects of the Louisiana statute on judicial candidacies,
too, will persist as it is applied in future elections.
While at one time it seemed that the Storer approach had been cast
aside by the Court in Sosna v. /owa, 419 U.S. 393, 95 S.Ct. 553, 42 L.
Ed.2d. 532 (1975), see Henderson v. Fort Worth Independent School
District, 526 F.2d 286, 288-89 n.1 (Sth Cir. 1976), a case decided last
term demonstrates that Storer retains full vitality. In Mande/ v. Brad-
ley, _U.S,_, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam), the
Court held, citing Storer, that a challenge to a Maryland candidate
qualification requirement was not moot notwithstanding the fact
that the plaintiff had, while under the protection of a district court
injunction, “successfully gathered the requisite number of signatures,
obtained a place on the ballot, ran and lost” prior to the Court's de-
cision. /d., _U.S. at____ , 97 S.Ct. at 2239 n.1. Mandel was not
brought as a class action. We believe that this pronouncement of the
A-33
[4-7] Defendants also urge that principles of comity and
federalism bar a federal court from entertaining a claim by a
member of a state’s judiciary regarding a question of judicial
administration. Younger principles, even were we to assume
them applicable to disciplinary proceedings against a judge,
see generally, Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211,
51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S.
592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), have no applica-
tion where state proceedings have not been initiated prior to
substantial proceedings on the merits in federal court. Hicks
v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 45 L.Ed.2d
223 (1975). Younger principles are not invoked by the mere
fact that federal relief has an impact upon state governmental
machinery; even in its quasi-criminal extensions, Younger
dismissal is called for only in those circumstances where
successful defense of a state enforcement proceeding, initiat-
ed before substantial federal proceedings on the merits had
occurred, would fully vindicate the federal plaintiff's federal
right. Younger, supra, 401 U.S. at 49,91 S.Ct. 746; Steffel,
supra, 415 U.S. at 460-61, 94 S.Ct. 1209; Gibson v. Berry-
hill, 411 U.S. 564, 577 93 S.Ct. 1689, 36 L.Ed.2d 488
(1973); Huffman, supra, 420 U.S. at 603, 95 S.Ct. 1200;
Supreme Court in a case so very closely analogous to that at bar must
govern. The pace of reasoned constitutional adjudication, these cases
show, is not parametric with that of election campaigns. But cf. De
Funis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct 1704, 40 L.Ed.2d 164
(1974) (future suits challenging university admissions program would
not evade review because state court's hoiding in instant case would
expedite process of appellate review). See Note, Mootness in the Su-
preme Court, 88 Harv.L.Rev. 373, 392-95 (1974).
A-34
Juidice, supra, 430 U.S. at 334, 338,97 S.Ct. at 1217, 1218.
The Younger principles simply are not what the defendants
would have them be:a broad, discretionary, device for the
evasion of the responsibility of federal courts to protect fed-
eral rights from invasion by state officials.
I. THE FIRST AMENDMENT CLAIMS 4
[8] In judging the constitutional validity of Louisiana’s
rule that judges resign their offices prior to becoming candi-
dates for non-judicial office, this court must be guided by the
approach adopted by the Supreme Court in U.S. Civil Service
Comm'n v. National Ass’n of Letter Carriers, 413 U.S. 548,
93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) and Broadrick v.
Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830
(1973), the so-called “Hatch Act’’ cases. In these cases, the
Court upheld against constitutional challenge broad restric-
tions upon the political activity of federal and state civil
service employees. 413 U.S. at 556, 93 S.Ct. 2880; 413 U.S.
at 616-17, 93 S.Ct. 2908. The Court specifically approved
restrictions on the right of a federal civil servant to be ‘a
partisan candidate for . . an elective public office,” /Jetter
Carriers, supra, 413 US. at 556, 93 S.Ct. at 2886, and on the
right of state civil servants to become ‘‘candidates for any
paid public office. . .,” Broadrick, supra, 413 U.S. at 616-
17, 93 S.Ct. at 2918. It is evident that the central issue in
the resolution of the first amendment claims in the case at
bar is the applicability of these conclusions to a sitting judge
who intends to run for non-judicial office.
4. The plaintiffs’ claims under the first and fourteenth amendments
present substantially identical issues. Nonetheless, we treat the first
amendment claim separately from the equal protection claim in order
later to highlight more readily certain aspects of the challenged state
rule arising out of Louisiana’s special treatment of judges seeking elec-
tion to non-judicial office.
ESE. DT ee
Or A ot ote te nee e
POR te RTE nee Ne eee oe ke
A-35
Correct extrapolation of the Letter Carriers and Broadrick
decisions requires careful attention to the Court’s analysis.
Some lower courts have characterized these cases as employ-
ing a “balancing test.’’ Alderman v. Philadelphia Housing
Authority, 496 F.2d 164, 171 n. 45 (3rd Cir. 1974); Magill
v. Lynch, No. 76-1532, 560 F.2d 22, at 27 (1st Cir. 1977).
To the extent that the term “balancing’’ implies that the
decision in Letter Carriers turned entirely on the relative im-
portance the Court ascribed to the governmental interests
and those of the employees, we find the word misleading.
The analysis was actually more complex. As a first step the
Court articulated the interests of the employees in being free
of the challenged restriction. 413 U.S. at 564-68, 93 S.Ct.
2880. The Court observed that while the Hatch Act admit-
tedly burdened some activity implicating first amendment
values, its prohibitions were far from universally applicable in
that only certain partisan activity was proscribed. The em-
ployees were free to engage in many other forms of political
expression. Id. at 576, 93 S.Ct. 2880. The Court then articu-
lated each of the important governmental interests in protect-
ing the integrity of its civil service and examined the close-
ness of fit between these governmental interests and the
Hatch Act prohibitions. Jd. It is this means-end scrutiny
which is obscured by incautious description of the Letter
Carriers approach as a simple “balancing test.”
The Court in Letter Carriers did not require that the
means-end fit be perfect. Rather, it held that Congress could
constitutionally restrict political activity by subordinate em-
ployees in order to prevent coercion by their superiors; the
legislature did not have to rely upon a prohibition against
coercion alone, a less restrictive and arguably effective alter-
native to the measure enacted. Id. at 566-67, 93 S.Ct. 2880.
On the other hand, it is clear that the Court was not and
A-36
could not be satisfied with a means-end relation that was
merely rational in view of the Hatch Act’s impact on first
amendment values. See Elrod v. Burns, 427 U.S. 347, 96
S.Ct. 2673; 2684-85, 49 L.Ed2d 547 (1976); Buckley v.
Valeo, 424 U.S. 1, 96 S.Ct. 612, 637-38, 46 L.Ed.2d 659
(1976). Indeed, the Letter Carriers opinion makes prominent
and particular mention of the substantial body of expert
opinion, available to Congress at the time it concidered the
Hatch Act, supporting the reasonableness of Congress’ view
that a simple ban on coercion would be ineffective. 413 U.S.
at 566-67, 566 n.12, 93 S.Ct. 2880. Such support would
hardly be necessary to sustain a statute if tested against a
standard of mere rationality.
The Supreme Court’s utilization of different standards of
scrutiny in cases invoiving the first amendment rights of pub-
lic employees, compare Letter Carriers, supra with Elrod v.
Bums, supra and Buckley v. Valeo, supra, can be reconciled
only by concluding that the requisite closeness of the means-
end relation must be determined on a case-by-case basis. The
standard to be applied in any case is a function of the
severity of impairment of first amendment interests. As the
burden comes closer to impairing core first amendment
values, e.g. the right to hold particular political views, Elrod
v. Burns, supra, 427 U.S. at 355, 96 S.Ct. at 2681, or im-
pairs some given first amendment value more substantially,
Buckley v. Valeo, supra, 424 U.S. at 19-23, 96 S.Ct. at 635-
36, the requisite closeness of fit of means and er.d increases
accordingly. The teaching of Letter Carriers, ccnsider2d as
a part of the jurisprudence of the first amendment and noi
some anomalous class of “Hatch Act cases,” is that restric-
tions on the partisan political activity of public employees
and officers, where such activity contains substantial non-
speech elements, see United States v. O’Brien, 391 U.S. 367,
0 he Os Oe One a Ot
Ne A a ca nan
ee ee ees
oR ek ee 6 Phe me
eee . 6
RT BSE AE os hemes ob OER FA 2 Ose the ee ee a
A-37
88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), are constitutionally
permissible if justified by a reasonable necessity, see Bullock
v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92
(1972), to burden those activities to achieve a compelling
public objective.°
A. The Plaintiffs’ Interests
Our analysis of the impact of the Louisiana rule upon the
first amendment interests of the plaintiffs convinces us that
5. We recognize, of course, that the Supreme Court has not articulated
the applicable test in precisely this way. Nonetheless, the Court's
reasoning and its holdings in cases closely analogous to that at bar sup-
port the appropriateness of a variable standard of scrutiny dependent
upon the character and substantiality of the impairment of first amend-
ment interests.
in Elrod v. Burns, supra, the Court invalidated an lilinois system of
patronage dismissals. The plurality insisted that the state employ the
least intrusive means of achieving its objective. 427 U.S. at 361-365,
96 S.Ct. at 2684-85. In contrast, the Letter Carriers majority used
some less exacting standard. U.S.C.S.C. v. National Ass’n of Letter
Carriers, 413 U.S. 548, 596-99, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)
(Douglas, J., dissenting). In Buckley v. Valeo, supra, the per curiam
portion of the decision, using a single form of words to describe the
test, reaches different results on the constitutionality of the federal
limit on campaign contributions and campaign expenditures, 424 U.S.
“1, 96 S.Ct. 612, 640, 647, 46 L.Ed.2d 659 (1976), a difference pre-
mised largely upon the “markedly greater burden on basic freedoms”
imposed by the exrenditure limit. /d., 424 U.S. at——96 SCL
at 647. In still other cases the Court has employed a means-end test,
see Bates v. State Bar of Arizona, ——U.S. 97 S.Ct.
2691, 2701-07, 53 L.Ed.2d 810 (1977); Virginia Pharmacy Board v.
Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 1828-30, 48
L.Ed.2d 346 (1976), without explicitly articulating the constitutionally
requisite closeness of the fit between the state’s chosen end and means.
Cases dealing with candidacy restrictions based on filing fees, past or
present levels of support, and durational residency requirements have
also used a variety of standards of scrutiny. See Woodward v. City of
Deerfield Beach, 538 F.2d 1081, 1082 n. 1 (Sth Cir. 1976) for a re-
view of this difficult jurisprudence. The concordance of these discor-
dant canons of constitutional adjudication can best be accomplished,
we believe, by the adoption of the approach discussed in the text.
A-38
the reasonable necessity standard extracted from Letter
Carriers is appropriate in this case. We begin that analysis by
detailing the affected interests, noting that the arithmetic of
constitutional adjudication of restrictions upon candidacy re-
quires the court to sum the affected interests of plaintiff
Morial and the plaintiffs who would support him but for the
canon’s bar. Bullock v. Carter, 405 U.S. 134, 142-44, 92 S.
Ct. 849, 31 L.Ed.2d 92 (1972). As to the former, we are en-
joined to recall that the Supreme Court has not declared a
right to candidacy fundamental, id. at 143, 92 S.Ct. 849;
see Magill v. Lynch, supra, (disapproving Mancuso v. Taft,
476 F.2d 187 (lst Cir. 1973)). As to the latter, “‘it is essen-
tial to examine in a realistic light the extent and nature’”’ of
the Louisiana rule’s impact upon voters. Bullock v. Carter,
405 US., at 143, 92 S.Ct., at 856.
Judge Morial’s interest in being free to run for Mayor while
retaining his seat on the bench is substantial. The canon and
statute heavily burden a decision to become an active candi-
date for non-judicial office by forcing a judge to resign a
remunerative position of considerable prestige and power
merely in order to run. Relegating one’s robes to the closet is
a heavy price to pay for tossing one’s hat in the ring.
This burden, moreover, weighs upon the exercise of an im-
portant, if not constitutionally “fundamental,” right. Candi-
dacy for office is one of the ultimate forms of political ex-
pression in our society. The citizen deeply committed to the
triumph of an idea or program can equally be the citizen de-
voted to the representation of that idea or the implementa-
tion of that program. See Mancuso v. Taft, supra.
The first amendment interest of Judge Morial which the
Louisiana rules leave unaffected must also be considered,
A-39
however, in order to judge the substantiality of the impair-
ment. Louisiana’s resign-to-run requirement does not burden
the plaintiff’s right to vote for the candidate of his choice or
to make statements regarding his private opinions on public
issues outside a campaign context; nor does it penalize his
belief in any particular idea. These are core first amendment
values. See U.S. Civil Service Comm’n v. Nat Ass’n of
Letter Carriers, 413 U.S. at 556, 575-76, 93 S.Ct. 2880;
Buckley v. Valeo, 424 U.S. at 19-23, 96 S.Ct., at 635-36;
Elrod v. Burns, 427 U.S., at 355-359, 96 S.Ct., at 2681-82;
Alderman v. Philadelphia Housing Authority, 496 F.2d 164
(3rd Cir. 1974), cert. den., 419 U.S. 844, 95 S.Ct. 77, 42 L.
Ed.2d 72 (1974). Even in its limited sphere of operation, the
Louisiana rule is administered in such a manner as to mitigate
somewhat the deterrent effect of the resignation require-
ment. The letter which informed Judge Morial that Canon
7(A)(3) barred him from active candidacy while still a judge
also informed him that the canon did not prohibit prelimi-
nary surveys of financial and voter support. In other words,
the canon does not require a prospective candidate to balance
a secure judgeship against a complete leap in the dark. The
prospective candidate need not resign merely to learn
whether he has a realistic chance of election.
The impact of the resign-to-run requirement upon voters is
even less substantial. Where candidacy restrictions have been
invalidated on constitutional grounds the effect of the restric-
tion was to exclude candidates of an identifiable group or
viewpoint, e.g., the poor, Lubin v. Panish, 415 U.S. 709, 94
S.Ct. 1315, 39 L.Ed.2d 702 (1974), Bullock v. Carter, 405
U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Turner v.
Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970),
or minority parties, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct.
5, 21 L.Ed.2d 24 (1968). While we would be the last to deny
A-40
that Louisiana state judges have qualities of talent and ex-
perience which make them attractive candidates for non-
judicial office, excluding the class of judges cannot be said
to have a major impact upon the availability of candidates to
represent any particular group or viewpoint. Exclusion of
judges from the pool of prospective candidates cannot be
supposed to have a qualitatively different effect on the in-
terests of voters than the analogous exclusion of equally
talented and experienced federal and state civil servants, an
exclusion which the Supreme Court found constitutional in
Letter Carriers and Broadrick.
The impairment of the plaintiffs’ interests in free expres-
sion and political association stemming from enforcement of
the resignation rule is thus not sufficiently grievous to re-
quire the strictest constitutional scrutiny. U. S. Civil Service
Comm'n v. Nat Ass’n of Letter Carriers, 413 U.S. 548, 566-
67, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Magill v. Lynch,
No. 76-1532, 560 F.2d 22, at 27-28 (1st Cir. 1977). Neither
is the impairment insubstantial or innocuous; a level of
scrutiny which guarded against only those measures offend-
ing logic would be a gratuitous insult to the seriousness of the
interests involved in becoming or supporting a candidate for
public office. See Storer v. Brown, 415 U.S. 724, 94 S.Ct.
1274, 39 L.Ed.2d 714 (1974); Bullock v. Carter, 405 U.S.
134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Woodward v. City
of Deerfield Beach, 538 F.2d 1081, 1082 n. 1, 1083 (5th Cir.
1976). Instead, we should employ a level of scrutiny which
requires the state to show a reasonable necessity for requiring
judges to resign before becoming candidates for elective non-
judicial office. See Lubin v. Panish, 415 U.S. 709, 718, 94
S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.
S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).
AAl
B. The State’s Interests and Their Relation to the Resign-to-
Run Rule
Having determined that Louisiana’s resign-to-run rule must
meet the test of reasonable necessity, we now turn to the
articulation of the state’s interests to see whether the rule is
reasonably necessary to effectuate those interests. Louisiana
vigorously defends the resignation requirement as a measure
designed to insure the actual and perceived integrity of state
judges. The specific evils targeted are three. First, the state
wishes to prevent abuse of the judicial office by a judge-
candidate during the course of the campaign. The state also
wishes to prevent abuse of the judicial office by judges who
have lost their electoral bids and returned to the bench.
Finally, Louisiana asserts an interest in eliminating even the
appearance of impropriety by judges both during and after
the campaign.
That these are interests grave and honorable, none can
doubt. The government has at least as great an interest in
assuring the impartiality of judicial administrastion of the
laws as in assuring the impartiality of bureaucratic adminis
tration of the laws. See U.S. Civil Service Comm’n v. Natl
Ass'n of Letter Carriers, 413 U.S. 548, 564-65, 93 S.Ct.
2880, 37 L.Ed.2d 796. As the Supreme Court has observed,
the reality and the appearance of “‘political justice’”’ are in-
compatible with the assumptions of a system of government
of laws not men. Jd. Ours is an era in which members of the
judiciary often are called upon to adjudicate cases squarely
presenting hotly contested social or political issues. The
state’s interest in ensuring that judges be and appear to be
neither antagonistic nor beholden to any interest, party,
or person is entitled to the greatest respect. Cf. United
States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed. 2d
A-42
1039 (1974).§
The resign-to-run rule is reasonably necessary to the state’s
vindication of these interests. By requiring a judge to resign
at the moment that he becomes a candidate, the state insures
that the judge will not be in a position to abuse his office
during the campaign by using it to promote his candidacy.
The appearance of abuse which might enshroud even an up
right judge’s decisions during the course of a hard-fought
election campaign is also dissipated by requiring the judge to
resign. He who does not hold the powers of the office can-
not abuse them or even be thought to abuse them.
Even clearer is the reasonable necessity of the resignation
requirement to the prevention of post-campaign abuse or its
6. Plaintiffs argue that Louisiana has largely disavowed these interests
in insulating judges from political influence by providing for an elected
judiciary. In view of this disavowal, the argument continues, Louisi-
ana’s interests cannot be of sufficient constitutional weight to over-
come the plaintiffs’ first amendment rights.
This argument raises questions that are best considered in the con-
text of the equal protection analysis of the Louisiana rule. In effect,
plaintiffs attack the permissibility of requiring judges who wish to run
for non-judicial office to resign while permitting those who wish to
run for judicial office to retain their seats. Framed in this manner, the
thrust of plaintiff’s argument is directed at the legislative classification,
the traditional focal point of equal protection analysis.See Part II,
infra.
We pause, nonetheless, to reject the implied premise of the plaintiffs’
argument, i.e., that unless the state exercises the full extent of its power
to prevent some evil, the state’s interest in preventing that evil cannot
be considered constitutionally weighty. To take an obvious example,
the Supreme Court in Buckley v. Valeo recognized that the govern-
ment’s interest in preventing undue influence upon elected officials was
sufficiently important to fy the regulation of campaign contribu-
tions, 424 U.S., at 29, S.Ct. at 640, notwithstanding the obvious
fact that Congress has never attempted to eradicate every possible
source of such influence.
A-43
appearance. It is apparent that the prevention of post-cam-
paign abuse calls for measures which are effective in the post-
campaign period. A leave of absence for the duration of the
campaign wholly fails to meet this requirement of post-
campaign effectiveness; the state cannot be constitutionally
faulted for failing to provide Judge Morial with a leave of
absence. Moreover, the standard of reasonable necessity does
not require the state to place entire reliance upon post-cam-
paign measures such as disciplinary proceedings against
judges who used their offices improperly or strict rules of
recusal, both of which are designed to target perfectly those
situations where the dangers of abuse or its appearance are
greatest. As we have shown, the “reasonable necessity”’ test
permits a degree of prophylaxis, particularly where the state
has an interest in avoiding the appearance of impropriety.
U. S. Civil Service Comm’n v. Nat'l Ass’n of Letter Carriers,
413 U.S. 548, 566-67, 93 S.Ct. 2880, 37 L.Ed.2d 796
(1973); see Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612,
638-39, 46 L.Ed.2d 659 (1976). Asaconstitutional matter,
we cannot say the prophylaxis here is an excess of caution.
The common-sense conclusion that the resignation require-
ment makes a substantial contribution to the achievement of
the state’s ends is reinforced by the widespread adoption of
the canon.’ Louisiana’s canon and statute do not violate the
first amendment.®
7. See Appendix |.
The Louisiana Code of Judicial Conduct was adopted by the Louisi-
ana Supreme Court pursuant to its rule-making authority under the
most recent version of the Louisiana constitution. LaConst. art. V, §5.
The fact that judges adopted a restriction upon judges may also be of
constitutional significance. See Ely, The Constitutionality of Reverse
Discrimination, 41 U.Chi.L.Rev. 723,734-36 (1974).
8. Our conclusion on this issue does not disregard the fact that Judge
Morial did not intend to run as a party representative. As the plaintiffs
correctly point out, much of the language in Letter Carriers pointedly
A-44
II. The Equal Protection Claims
[9] The plaintiffs couch their complaint in the language
of the equal protection clause of the fourteenth amendment
as well as in the language of the first. While it is true that a
first amendment claim typically takes the form of an asser-
tion that the government cannot deprive the plaintiff of some
freedom and an equal protection claim takes the form of an
assertion that the government may not single out the class of
which the plaintiff is a member for deprivation, it is equally
true that every first amendment claim can be transformed in-
to an equal protection claim merely by focusing upon the
classification that every legislative scheme embodies. It is,
therefore, generally appropriate to employ the same standard
of scrutiny to the derivative equal protection claim as would
be applied to the underlying claim of a substantive depriva.
limited the Court’s holding to an adjudication of the validity of prohi-
bitions on partisan political activity. 413 U.S., at 556, 93 S.Ct., at
2886. In the context of the Hatch Act which regulates the activities
of federal employees, it was natural for the Supreme Court to discuss
the dangers of partisanship as if they were substantiaily identical to the
dangers of party domination. /d. at 564-68, 93 S.Ct. at 2889. We do
not believe, however, that the restrictive language of Letter Carriers
requires courts to ignore the reality of partisanship if the formality of
party affiliation is absent. Magill v. Lynch, No. 76-4532, 560 F.2d 22
(1st Cir. 1977). A faction may form around a man as much as around a
party label; the judicial office may be abused by using it to promote the
interest of a faction as well as a formal party. Moreover, the record in
this case demonstrates that formal party and political organizations
with defined constituencies play a major role in New Orleans mayoralty
campaigns, endorsing candidates, distributing sample ballots, and other-
wise promoting the election of favored candidates. Thus, the mere fact
that plaintiff Morial’s name would appear on the ballot without party
designation does not render the state powerless to require his resigna-
tion from the bench. /d. We do not mean to say that legislatures are
necessarily equally free to restrict formally partisan and formally non-
partisan conduct. In any given case, the relevant inquiry must be
whether the threat to the state’s interests in the impartiality of its pub-
lic servants stems from party involvement or from political involve-
ment.
A-45
tion.9 See American Party v. White, 415 U.S. 767, 778, 94
S.Ct. 1296, 39 L.Ed.2d 744 (1974); Broadrick v. Oklahoma,
413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The
method of equal protection analysis, however, retains inde-
pendent worth even in such cases. Highlighting the legisla-
tive classification serves to illumine the state’s interest in
burdening those of the plaintiff’s class and the necessity of
doing so in order to advance that interest.
The nub of the equal protection problem in the present
case is that judges running fc: election to non-judicial office
are singled out. The state makes two classifications. First,
any judge may run for judicial office without resigning his
seat on the bench. A classification is thus established be-
tween judges who wish to run for judicial office and judges
who wish to run for non-judicial office. Moreover, anyone
other than a judge may run for non-judicial office without
resigning the office he holds at the time he announced his
candidacy. A second classification is thus established be-
tween judges and all other office holders. The constitutional
problem is to determine whether these classifications are
reasonably necessary to the vindication of Louisiana’s in-
terest in the integrity of its elected judiciary.
The district court made formal findings of fact on the con-
duct of judicial and non-judicial elections in Louisiana. The
most important of these findings were that the conduct of
political campaigns for the judicial and non-judicial offices
were similar and that, when judges run for re-election or elec-
tion to another judicial office, they ‘‘raise money, engage in
9. Of course, if the legis!ative scheme embodies a classification which is
itself constitutionally suspect, strict constitutional scrutiny is required
without regard to the nature of underlying deprivation. See, e.g., Gra
ham v. Richardson, 403 U.S. 365, 371-73, 91 S.Ct. 1848, 29 L.Ed.2d
534 (1971).
A-46
political oratory, make campaign promises, appeal to various
political and racial groups, advertise in the media, and run
under political party labels in the same way as do other can-
didates running for non-judicial office.” (Finding of Fact
21). Newspaper headlines and campaign oratory describe the
political affiliations and ideologies of candidates for judicial
office. The district court concluded that ‘‘viewed against the
reality of the full involvement in politics, then there is no
rational basis for thus distinguishing between Judges who run
for reelection or for a higher judicial office and Judges who
run for nonjudicial office.”’ (Finding of Fact 31).
While these findings make this a difficult and troublesome
case, we do not think they are determinative of the constitu-
tional issue. The equal protection clause of the constitution
does not put the states to the choice of foregoing an elective
judiciary or treating candidates for judicial office like candi-
dates for all other elective offices. The Louisiana constitu-
tion, like the federal constitution, creates a separate judicial
branch. Article V of the Louisiana constitution is devoted
entirely to the functions and duties of that branch. The
structure, powers, duties, and emoluments of the state’s
judiciary are treated differently from those of ‘Public
Officials,” who are dealt with in a separate article of the con-
stitution, article IX.
Because the judicial office is different in key respects from
other offices, the state may regulate its judges with the dif-
ferences in mind. For example the contours of the judicial
function make inappropriate the same kind of particularized
pledges of conduct in office that are the very stuff of cam-
paigns for most non-judicial offices. A candidate for the
mayoralty can and often should announce his determination
to effect some program, to reach a particular result on some
A-47
question of city policy, or to advance the interests of a par-
ticular group. It is expected that his decisions in office may
be predetermined by campaign commitment. Not so the can-
didate for judicial office. He cannot, consistent with the
proper exercise of his judicial powers, bind himself to decide
particular cases in order to achieve a given programmatic
result. '° Moreover, the judge acts on individual cases and not
broad programs. The judge legislates but interstitially; the
progress through the law of a particular judge’s social and
political preferences is, in Mr. Justice Holmes’ words, ‘“‘con-
fined from molar to molecular motions.” Southern Pacific
Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 531, 61
L.Ed. 1086 (1916) (Holmes, J., dissenting).
As one safeguard of the special character of the judicial
function, Louisiana’s Code of Judicial Conduct bars candi-
dates for judicial office from making “pledges or promises of
conduct in office other than the faithful and impartial per-
formance of the duties of the office; La. Code of Judicial
Conduct Canon No. 7(B)(c)."' Candidates for non-judicial
10. The district court recognized that this sketch
represents accurate-
nd the judicial landscape of Louisiana notwithstanding the regularity of
aon contested judicial elections. Judge Cassibry wrote, ‘None of
) findings should be construed as accusing any State Judge of being
gg po motivated = ~ hang he might render. Without excep-
. convinced tha decide their cases freely and i i
based on the law and evidence.” (Finding of Fact 30). " oneal
11. The district court made no _ finding explicitly directed to the
question of whether this canon is ordinarily observed in the conduct of
Sees St SE Cae te Louisiana. Our own review of the ex-
ibits consisting of newspaper articles and advertisements by candidates
Seed enna Gat creme cath eniion ent ebrertinmants
fined themselves Statements of the education professional
attainments of the candidates. bas
A-48
office are not subject to such a ban; in the conduct of his
campaign for the mayoralty, an erstwhile judge is more free
to make promises of post-campaign conduct with respect
both to issues and personnel, whether publicly or privately,
than he would be were he a candidate for re-election to his
judgeship. The state may reasonably conclude that such
pledges and promises, though made in the course of a cam-
paign for non-judicial office, might affect or, even more
plausibly, appear to affect the post-election conduct of a
judge who had returned to the bench following an electoral
defeat. By requiring resignation of any judge who seeks a
non-judicial office and leaving campaign conduct unfettered
by the ~wstrictions which would be applicable to a sitting
judge, Louisiana has drawn a line which protects the state’r
interests in judicial integrity without sacrificing the equally
important interests in robust campaigns for elective office
in the executive or legislative branches of government.
This analysis applies equally to the differential treetment
of judges and other office holders. A judge who fails in his
bid for a post in the state legislature must not use his judge-
ship to advance the cause of those who supported him in
his unsuccessful campaign in the legislature. In contrast, a
member of the state legislatute who runs for some other of-
fice is not expected upon his return to the legislature to aban-
don his advocacy of the interests which supported him during
the course of his unsuccessful campaign. Here, too, Louisi-
ana has drawn a line which rests on the different functions
of the judicial and non-judicial office holder. '
12. It might be argued that Louisiana's interest in protecting the real
and apparent integrity of its sitting judges is threatened as much by per-
mitting politically involved persons to run for judicial office as it would
be by allowing judges who became politically involved during the
course of a campaign for non-judicial office to return to the bench after
A-49
Nothing in the case law convinces us that this conclusion
is incorrect. In fact, such indications as are found reinforce
the validity of our analysis. In Broadrick, the Supreme Court
summarily disposed of the employees’ equal protection claim
that the Oklahoma statute impermissibly singled out classi-
fied civil service employees for restrictions on partisan politi-
cal expression. The Court stated,
In any event, the legislature must have some leeway in
determining which of its employment positions require re-
strictions on partisan political activities and which may be
left unregulated. See McGowan v. Maryland, 366 U.S.
420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). And a State
can hardly be faulted for attempting to limit the posi-
tions upon which such restrictions are placed.
413 US. at 607 n. 5,93 S.Ct. at 2913. Several lower federal
courts have rejected equal protection challenges similar to
that pressed here. Perry v. St. Pierre, 518 F.2d 184 (2d Cir.
1975); Stack v. Adams, 315 F.Supp. 1295 (D.Fla.1970);
Deeb v. Adams, 315 F.Supp. 1299 (D. Fla. 1970); see also
Holley v. Adams,238 So.2d 401 (Fla. 1970).
On principle and precedent, we find the Louisiana canon
and statute constitutional. Though the questions presented
suffering electoral defeat. A mayor who runs for the judiciary and
wins may carry commitments to the bench at least as strong as a judge
who runs for the mayoraity and loses. A rule which permits the first
threat to become actual while preventing the seond might seem irra-
tional.
The argument proves too much. As just stated, it would apply
equally to elective and appointive judiciaries. A mayor who is appoint-
ed to a judgeship has had the same experience prior to the campaign as
the mayor who is elected to a judgeship. Since the influences and
commitments to which this argument is addressed are those incurred
outside the judicial campaign context, the only way for the state tc
vindicate its interest would be to bar anyone with prior political expo-
sure from judicial office, a rule as absurd as it is constitutionally sus-
pect.
A-50 A-51
here are difficult ones, we are confident of the validity of laws. The judgment of the district court is therefore revers-
pum besfene ed and the mandate shall issue forthwith.
Conclusion REVERSED.
The interests of public employees in free expression and Appendix I to follow.
political association are unquestionably entitled to the pro-
tection of the first and fourteenth amendments. Mt. Healthy
City School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568,
574, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S.
593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Nothing in
today’s decision should be taken to imply that public em-
ployees may be prohibited from expressing their private
views on controversial topics in a manner that does not in-
terfere with the proper performance of their public duties.
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968); Hobbs v. Thompson, 448 F.2d
456 (5th Cir. 1971). In today’s decision, there is no blanket
approval of restrictions on the right of public employees to
become candidates for public office. See Magill v. Lynch,
No. 76-1532, 560 F.2d 22 (lst Cir. 1977); see generally
Developments in the Law Elections, 88 Harv.L.Rev. 11)1,
1121-50, 1217-33 (1975); Gordon, The Constitutional
Right to Candidacy, 91 Pol.Sci.Q. 471 (1976). Nor do we
approve any general restrictions on the political and civil
rights of judges in particular. Our holding is necessarily
narrowed by the methodology employed to reach it. A re-
quirernent that a state judge resign his office prior to becom-
ing a candidate for non-judicial office bears a reasonably
necessary relation to the achievement of the state’s interest
in preventing the actuality or appearance of judicial impro-
priety. Such a require:nent offends neither the first amend-
ment’s guarantees of free expression and association nor the
fourteenth amendment’s guarantee of equal protection of the
A-52
APPENDIX I
The following states have adopted rules of judicial conduct
substantially identical to Louisiana’s Canon 7(A)(3). Unless
otherwise indicated, the canon is numbered 7(A)(3) in each
code.
States marked with an asterisk have been identified by the
American Judicature Society as having have adopted Codes
of Judicial Conduct based on the A.B.A. Code or its prede-
ALABAMA*
ALASKA Alaska Stat., Rules of Court Procedure and
Administration
ARIZONA 117A Ariz. Rev. Stat. Ann., Sup.Ct. R. 45
(Pocket Part 1977)
COLORADO 7 Colo. Rev. Stat., Code of Judicial Conduct
(1973)
CONNECTICUT Kaye, Mollier, 1 ConnPrac., Code of
Judicial Conduct (Pocket Part 1977)
DELAWARE 16 Del. Code Ann., Del. Judge’s Code of
Judicial Conduct (1975)
DISTRICT OF
COLUMBIA
FLORIDA ‘Fila. Rules of Court, Code of Judicial Con-
duct (1975)
A-53
GEORGIA 9A Ga.Code Ann. § 24-3642 (1976); see 231
Ga. Al-A29; (1973); 232 Ga. 897 (1974)
HAWAII*
IDAHO*
ILLINOIS*
INDIANA*
IOWA 40 Iowa Code Ann.§610 App.Code of Judi-
cial Conduct (Rule 119)
KANSAS 7 Kan.Stat.Ann. §20-175, Sup.Ct. R. 601
(1974)
MARYLAND 9C Md.Code Ann., Rule 1231 (1977)
MICHIGAN Mich. Court Rules, Code of Judicial Con-
duct (1977)
MINNESOTA Minn. Rules of Court, Code of Judicial Con-
duct (1977)
MISSOURI Mo. Rules of Court, Rule 2, (1977)
NEBRASKA*
NEVADA 1 Nev.Rev. Stat., Sup.Ct. R. 235 (1977)
NEW JERSEY Rules Governing the Courts of N.J., Code of
,Judicial Conduct, Canon 7(A)(2) (1977)
A-54
NEW MEXICO4 NM. Stat. Ann. § 16-11 (Pocket Part 1975)
NEW YORK 29 N.Y. [Jud-App.] Law (McKinney), Code
of Judicial Conduct (1975)
NORTH CAROLINA 4A N.C. Gen.Stat.App. VITIA (1975)
NORTH DAKOTA*
OHIO Rules Governing the Court of Ohio, Code of
Judicial Conduct (1977)
OKLAHOMA Okla. Court Rules & Proc., Code of Judicial
Conduct (1976)
OREGON*
PENNSYLVANIA Pa. Rules of Court, Code of Judicial
Conduct (1977)
RHODE ISLAND 2B R.I. Gen.L., Canons of Judicial
Ethics, Canon 27 (1976)
SOUTH DAKOTA 7 S.D. Compiled Laws Ann. § 16-2-App.
(Pocket Part 1977)
TENNESSEE 1 Tenn. Code Ann., Sup. Ct.R. 43 (Supp.
1976)
TEXAS 1A Tex.Rev.Liv.Stat.Ann. Title 14, App. B
(Vernon) (Pdcket Part 1976)
UTAH*
A-55
VERMONT Vt. Stat.Ann. §12 App. VIII, A.O. 10 (Pocket
Part 1977)
VIRGINIA*
WEST VIRGINIA 1 W.Va.Code App., Code of Judicial
Conduct (Pocket Part 1977)
WISCONSIN Wis. Stat. Ann. § 256 App., Code of Judicial
Conduct, Rule 3 (West) (1971)
*Source: Am. Judicature Soc'y, Resource Materials for 5th
National Conference of Judicial Disciplinary Commissions,
Table No. 5 (1976).
eee
FAY, Circuit Judge, dissenting.
With the greatest respect for the en banc decision, I feel
compelled to dissent. Seldom has this Court been presented
with issues more complex and important than the ones be-
fore us today. In his usual scholarly fashion, Judge Gold-
berg has astutely illustrated that the law which we are to ap-
ply is in a state of flux, and that reconciling the plethora of
cases in this field is near to impossible. For that reason
alone, it is difficult for me to quarrel with whether or not the
tests which he proposes should govern the issues before us.
A review of the relevant case law has brought to my atten-
tion no better way to handle these issues.
I interpret the Court’s First Amendment test to be that
state restriction on political activities of public employees
(where such activities contain substantial nonspeech ele-
A-56
ments) is constitutionally permissible if the state has a com-
pelling interest, and the challenged restriction if reasonably
necessary to further that compelling interest. Majority opin-
ion pp. 1327-28 supra. The majority then proceeds to adopt
the same standard of review for its equal protection analysis.
Majority opinion p. 1332 supra.
My problem with this case revolves around the equal pro-
tection issues - and my concern is not with the test which
the majority adopts, but rather in the application of this
test. Judge Goldberg correctly points out that the equal pro-
tection problem in the present case is that judges running for
election to non-judicial office are singled out. The state
makes two classifications. First, any judge may run for
judicial office without resigning his seat on the bench. A
classification is thus established between judges who wish to
run for judicial office and judges who wish to run for non-
judicial office. Moreover, anyone other than a judge may run
for non-judicial office without resigning the office he holds at
the time he announced his candidacy and qualifies.’ A sec-
ond classification is thus established between judges and all
other office holders. Therefore, if we apply the test pro-
posed by the majority, the issue to be determined is whether
these classifications are reasonably necessary to the admitted
compelling interest Louisiana has in maintaining the inte-
grity of its judiciary.
These classifications are troublesome. There appears to me
to exist no legitimate reason to distinguish between judges
who run for judicial office and judges who run for non-
judicial office. Judge Cassibry in his findings of facts, 438
F.Supp. 599, stated that:
1. The Governor of Louisiana could hypothetically run for any other
elected position while holding office.
A-57
No differences have been shown to exist between the
conduct of a political campaign for a judicial office and
the conduct of a political campaign for a non-judicial
office, and the evidence in the record supports the con-
tention that such campaigns are conducted in the same
ways.
What Judge Cassibry’s finding means is that since judicial and
non-judicial elections are conducted in the same manner, a
judge who runs for any other judicial office is subjected to
the same potential corrupting influences as would be a judge
who runs for any non-judicial office. Why then is it reason-
ably necessary to treat differently judges who are candidates
for non-judicial office? How could members of the legal
profession, political parties, vested interest groups and all
others int’ ested in elected positions fail to align themselves
with one candidate or another in a contest for ajudicia]
office? It is not difficult to imagine a situation with two or
more judges seeking higher positions while serving in a
judicial capacity. Surely at least one will lose. The record
shows no basis for any less nor any more concern based upon
such classification. And of course in any such race there
could well be one or more non-judicial office holders like-
wise appealing to the same “power-groups.” Certainly if
judicial integrity is our concern, there is no legitimate basis
to exclude judges who run for judicial office.
While we are not dealing with a judge running for a judi-
cial office, the classification issue is squarely before us. What
justification is there for the total lack of equal concern by
the Louisiana legislature when non-judicial office holders
seek non-judicial offices? The majority argues most persua-
sively the need for “honest judges.” Is there less need for
“honest mayors’’? Is there less need for ‘honest governors’?
A-58
The list is endless and the answer obvious. The legal question
presented is not so easily answered.
The majority rests its opinion upon a state concern and
reasonably necessary restrictions -- not the unique aspects of
judicial elections for indeed the experienced trial judge found
there are none. I would agree that judicial responsibilities are
unique and suggest they are also totally incompatible with
the elective process. Certainly the federal appointive process
and widespread state use of ‘merit retention” programs? rec-
ognize this feature of the third branch. But Louisiana has
not removed its judicial candidates from the political arena.
It could be argued the state has rather tied one hand behind
a judge’s back should he decide to run for any office other
than judicial. This is hardly demonstrative of a legitimate
concern for “‘good government”. Nor, in my opinion, is it
a classification consistent with the equal protection clause of
the Fourteenth Amendment.
Resign to run laws do have merit and can be upheld. At
least one state, Florida, has passed muster by showing the
2. States differ in whether judges are first appointed and then run on
their record (Missouri plan), to those having nominating commissions
(such as those instigated by President Carter), to those with screening
panels which select a list of qualified candidates from which the Gov-
ernor makes his appointments (Florida).
3. A three judge panel has upheld those portions of Florida's resign to
run law which are relevant to this case. See Stack v. Adams, 315 F.
Supp. 1295 (D.Fla. 1970); Deeb v. Adams, 315 F.Supp. 1299 (D.Fia.
1970). It is interesting to note, however, that in Stack Florida law was
held to be unconstitutional as applied to a public official who desired
to run for office of United States Representative. The court reasoned
that requiring a candidate for Congress to resign from office as a con-
dition precedent to running for that position created an additional
qualification not provided by the Constitution for election to Con-
gress. The court held that the qualifications section of the Constitu-
A-59
same concern discussed by the majority toward all office
holders - not merely judges. While that may not be the only
possible classification able to withstand attack, it is extreme-
ly impressive by its equal treatment.
Recognizing this case as a difficult one and my voice as a
lonely one, I, nevertheless, feel obliged to dissent. Classifi-
cations have been set up by the Louisiana statute and Canon
which make little sense if the state of Louisiana is sincere
about preserving the integrity of its judiciary. If, however,
the state is not sincere in this belief, then a reevaluation of
the First Amendment claim would be warranted since restric-
tions on First Amendment rights cannot be justified by a
state interest that is less than compelling. Finding ihe pre-
sent classifications violative of the Fourteenth Amendment,
I would affirm the action of the trial court.‘
tion was exclusive, and that a state could neither add to nor take
away from it. While it has not been raised by any of the parties before
this Court, one wonders whether the Louisiana statute is not vulnerable
to 2 similar attack. Since the plaintiff is not running for a federal of-
fice, it is doubtful that he is the proper party to bring such an attack.
4. | concur in those portions of the Court's en banc opinion which deal
with the questions of jurisdiction and mootness.
A-60
CERTIFICATE OF SERVICE
I hereby certify that, pursuant to the Rules of this Court,
three copies of the Appendix to Original Brief of the Ap-
pellants have been served upon counsel of record for Ap-
pellees, Truman Woodward, Jur., 1100 Whitney Building,
New Orleans, Louisiana 70130, by posting same, properly
addressed, and postage prepaid, in the United States mail,
this 21st day of March, 1978.
Counsel for Appellants
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