Amicus Curiae Brief — Republican Party of Minn. v. White

No. 01-521 FEB 19 WCZ.

IN THE

Supreme Court of the Anited States

REPUBLICAN PARTY OF MINNESOTA, et ai..,

Petitioners,

V.

VERNA KELLY, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICUS CURIAE

CONFERENCE OF CHIEF JUSTICES

IN SUPPORT OF RESPONDENTS

GEORGE T. PATTON, JR. ROY A. SCHOTLAND

SARAH STEELE RIORDAN Counsel of Record

BOSE MCKINNEY & EVANS LLP GEORGETOWN UNIV. LAW

700 North One Lafayette Centre CENTER

1120 20th Street, N.W. 600 New Jersey Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20001

(202) 973-1229 (202) 662-9098

ROBERT F. BAUER Attorneys for Amicus Curiae,

REBECCA H. GORDON Conference of Chief Justices

PERKINS COIE LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005

(202) 434-1602

February 19, 2002

AER SE AE SS

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

BEST AVAILABLE COPY Eau

TABLE OF CONTENTS

TABLE OF AUT TIRURRIT BEs® ccccccccccscccscsccccsccvsccsescssceseess

STATEMENT OF AMICUS CURIAE..........ss0sseseeseeeees

SUMMARY OF ARGUMENT ...........cccccccssssssseseseeseeees

FE PIII TE cscnesticevecntentianirsicintmmncamtaseemnnesnatiancesqceens

1.

Il.

Il.

THE STATES HAVE HISTORICALLY

IMPLEMENTED A VARIETY OF MEAS-

URES TO PROVIDE FOR JUDICIAL

ELECTIONS WHILE PRESERVING THE

DISTINCTIVE ROLE OF THE JUDICIARY ..

DUE PROCESS REQUIRES JUDGES WHO

WILL “HOLD THE BALANCE NICE,

GARAPES DRUTEP COUEIEEe crnnscncnsnsesasseneserssnnsescosovseee

A. States Must Have Latitude to Address

the Serious Due Process Issues Presented

by Judicial Candidate Speech, and Can-

not Rely on Disqualification Procedures

B. Judicial Candidate Speech on Political or

Legal Issues Likely to Come Before Courts

Carries a High Risk of Improper Prejudg-

ments or Commitments, Whether Express

or Implied, in Violation of Due Process

THIS CASE RAISES ISSUES CENTRAL TO

STATE EFFORTS TO PROTECT THE

INDEPENDENCE AND DISTINCT ROLE

OF THE JUDICIARY UNDER STATE

CONSTITUTIONAL SCHEMES OF SEPA-

ee ED crestracevscccsasevscectnenreveenncsocenscnce

ii

TABLE OF CONTENTS—Continued

Page

A. The “Basic Principle” of Separated Powers

Compels Close Attention to the Effect of

Elections on Judicial Independence............. 16

B. Courts Have Long Recognized the Ten-

sion between Independence and Electoral

Accountability in Seeking to Preserve the

Distinctive Role of the Judiciary.................. 21

1. The Precedents Acknowledge the Uni-

que Issues Elective Systems Present

df ___, IN UNE EE 21

2. Any Standard for Judging Permissible

Candidate Speech Must Take into

Account the “Political Realities” of

Modern Campaigns..............:sssessesseeerees 26

3. The Court’s Increased Role in the

Adjudication of Prominent Issues Also

Before the Legislature and Executive

Justifie; Clear and Reasonable

Regulations of Judicial Campaign

BB IUR cocercccccesessncosccentnsoccsconsscompecsaneessens 28

IE Rie cccteccsisntascovscsscesercccsesescsenscescestensnsioiesessiee 30

BFF MPA D a ccccecsorssesccnsccsesesessensscesnssontocenssennsesesnnsatiotninten la

TABLE OF AUTHORITIES

CASES Page

ACLU vy. Florida Bar, 744 F. Supp. 1094 (N.D.

Fait> Severe cneieiicnnpensusenitetamiceinianbneinicimanineitinsiins 26

Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813

(Cie siesccevemnmecccnmninnianeadieminbseniiniinssentinesamines 10, 11, 12

Baker v. State, 744 A.2d 864 (Vt. 2000)............... 29

Bloom v. Illinois, 391 U.S. 194 (1968) ........c0c000 11

Bridges v. California, 314 U.S. 252 (1941)........... 25

Brown v. Glines, 444 U.S. 348 (1980)..............cc000 25

Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224

(Sag aA: Cee snesittiiccunnincreccieeniastiismniitnncenesntniaeds passim

Chevron U.S.A. v. Natural Res. Def. Council, 467

eS ee icteiernteatienenanremensttnmsertineanainitinns 19

Chisom v. Roemer, 501 U.S. 380 (1991) .............. passim

Concrete Pipe & Products v. Constr. Laborers

Pension Trust, 508 U.S. 602 (1993) ..........ccc0000. 10

Cooper v. Aaron, 358 U.S. 1 (1958) .......ccccccccceeeees 18

Evans v. Romer, 854 P.2d 1270 (Colo. 1993)........ 19

Fed. Elec. Comm'n v. Christian Action Network,

894 F. Supp. 946 (W.D. Va. 1995) ..........ccccees 27

Fed. Election Comm'n v. Colo. Republican Fed.

Campaign Comm., 533 U.S. 431 (2001)............ 4, 26

FTC v. Cement Inst., 333 U.S. 683 (1948) ............ 12

Gentile v. State Bar, 501 U.S. 1030 (1991)........... 25

Gregory v. Ashcroft, 501 U.S. 452 (1991)............. 3,19

Hilly v. Portland, 582 A.2d 1213 (Me. 1990)........ 28

In re Murchison, 349 U.S. 133 (1955)...........c00005 11

Johnson v. Mississippi, 403 U.S. 212 (1971)......... ll

Landmark Communications, Inc. v. Virginia, 435

Ea IIE Otel inetrencitentdiennenscangnisibiiniinmenmpianman 10

Liljeberg v. Health Servs. Acquisition Corp., 486

ees SU GIT icnesecninenaterrnnemenisnintinasinigteanees 12

Loving v. United States, 517 U.S. 748 (1996) ....... 17

Marbury v. Madison, 5 U.S. 137 (1803)................ 18

iv

TABLE OF AUTHORITIES—Continued

Page

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)...... 11

Mayberry v. Pennsylvania, 400 U.S. 455 (1971)... 11

McKenzie v. State, 583 N.W.2d 744 (Minn.

FIP UuD ccsnsnesennstinnsgdeatuspesstnempsanmengunnitinnnaiimmegnes 22

Minn. State Bd. v. Knight, 465 U.S. 271 (1984)... 23

Mistretta v. United States, 488 U.S. 361 (1989)... 17

Morial v. Judiciary Comm'n, 565 F.2d 295 (Sth

Sk BP Oi ccacenitneneenaseimennnnnniniininetl 22, 25, 26, 28

Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976)... 25

Nevius v. Warden, 960 P.2d 805 (Nev. 1998)........ 13

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

Ge scroussnensnesnnnemnapeentasssitapesneninmpatninmseenes 16

Offutt v. United States, 348 U.S. 11 (1954)........... 11

Peterson v. Stafford, 490 N.W.2d 418 (Minn.

ID ITi ncnsvesntnaniaintdenneategemsmpnummeieneminenenete 20

Pro-Choice Miss. v. Fordice, 716 So.2d 645

GINA: TERI itesnstcemncnnenemncsnalitticereiberiapetteunennes 28

Sampson v. State, 3\ P.3d 88 (Alaska 2001) ......... 28

Snepp v. United States, 444 U.S. 507 (1980)......... 25

State v. Kinder, 942 S.W.2d 313 (Mo. 1996) ........ 13

Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga.

Ee 21

Stretton v. Disciplinary Bd., 944 F.2d 137 (3d

oe Se passim

Tumey v. Ohio, 273 U.S. 510 (1927) ........-0-+- 9,11, 12,14

United States Civil Serv. Comm'n v. Nat'l Ass'n

of Letter Carriers, 413 U.S. 548 (1973) ............ 15, 25

United States v. Carolene Prods., 304 U.S. 144

eee hencncdoerccespnremmnisntiemnsnsnnuntemaiidinemantees 19

Ward v. Village of Monroeville, 409 U.S. 57

Geil recesresannntesscsmmagmianssenentectsiamenmenamens 10, 11

Wells v. Edwards, 347 F. Supp. 453 (M.D. La.

21

Vv

TABLE OF AUTHORITIES—Continued

RULES AND REGULATIONS

EE CED

CONSTITUTIONAL PROVISIONS

CL eS eres

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ET A SR ec

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vi

TABLE OF AUTHORITIES—Continued

£

DULY. Cooma. €9t. 6, § 260) ecccceccreccccccccocsccoseseeesieeeer

N.Y. Const. art. 6, § 20(D)(1) .ccccssscccccscsssecssceseeessen

Le Pn’ < | hee

Aw )

Ohio Const. art. IV, § 6.......cccccccssssscssssscessssseesssssess

Ohio Const. art. VI, § 17 .....cccvcssscssvessssssseesesssseceees

pO ee

Ue

Ue 6,

OO

SnNnwnNnNnN ns

OTHER AUTHORITIES

A.B.A. Rep. & Recommendations of the Task

Force on Lawyers’ Political Contributions (pt. -

GED. 2 GI eeecegeennees 2, 24, 26

Shirley S. Abrahamson, The Ballot and the

Bench, 76 N.Y.U. L. Rev. 973 (2001) ...........0++. 20

Bernard Bailyn, The Ideological Origins of the

American Revolution 74 (1967)... 17

Alexander Bickel, The Least Dangerous Branch

17 (Bobbs-Meerrill 1957)..............c.ccsscceeseeseeseeees 23

Call To Action, 34 Loy. L.A. L. Rev. 1353

a l

Benjamin Cardozo, The Nature of the Judicial

eo ee er 29

Gerhard Casper, Separating Power 152 (1997)..... 20

Anthony Champagne, Television Ads in Judicial

Campaigns, 77 Ind. L.J. (forthcoming 2002)..... 4

Citizens for Independent Courts, Uncertain

Justice: Report of the Citizens for Independent

Courts Task Force on Selecting State Court

vii

TABLE OF AUTHORITIES—Continued

Page

R. Darcy, Conflict and Reform: Oklahoma

Judicial Elections 1907-1998, 26 Okla. City

ULL. Rev. 519 (Summer 2001).............cccccceceeees 26

Richard A. Dove, Judicial Campaign Conduct: —

Rules, Education, and Enforcement, 34 Loy.

le, Ba I, BEE Ge Pcceserccencctenenenncstensecnssess 12

The Federalist No. 49 (James Madison) (Clinton

ET I ee 18

The Federalist No. 51 (James Madison) (Clinton

I xiiicnntinnistainiapiemiinittipataniesinitenmeninetennass 19

Richard E. Flamm, Judicial Disqualification:

Recusal and Disqualification of Judges (Little,

A, Cree itcrrccnnscteccsnscenenmteseematitencsens 10, 12

W.B. Gwyn, The Meaning of the Separation of

eee 17

Kermit L. Hall, The Judiciary on Trial: State

Constitutional Reform and the Rise of an

Elected Judiciary, 1846-1860, 44 Historian

EE 5, 6

Melinda Gann Hall, Competition in Judicial

Elections, 1980-1995 (Sept. 1998)...............0000+ 22

Kathleen Hall Jameson, Dirty Politics: Decep-

tion, Distraction and Democracy 85 (1992)...... 27

Caleb Nelson, A Re-evaluation of Scholarly

Explanation for the Rise of the Elective

Judiciary in Antebellum America, 37 Am. J.

Pe § 5

Robert M. O’Neil, The Canons in the Courts:

Recent First Amendment Rulings, 77 Ind. L.J. .. 15

David A. Pepper, Recasting the Issue Ad: The

Failure of the Court's Issue Advocacy Stand-

ards, 100 W. Va. L. Rev. 141 (1997)................ 27

viii

TABLE OF AUTHORITIES—Continued

Page

Chief Justice Thomas R. Phillips, Address to the

Joint Session of the 73d Legislature of Texas 5

een 22

Thomas R. Phillips, Comment on Judicial

Independence and Accountability, 61 Law &

Contemp. Probs. 127 (Summer 1998) ...........++.. 4

Roy A. Schotland, Financing Judicial Elections

2000: Change & Challenge, 2001 L. Rev.

M.S.U.-D.C.L. 1 (forthcoming)..............00000008 8

Roy A. Schotland, Summit on Improving Judicial

Selection: Personal Views, 34 Loy. L.A. L.

| ee 8

George Sharswood, ed., Blackstone's Commen-

taries on the Laws of England 60 (Childs &

ene 23

— Randall T. Shepard, Campaign Speech: Restraint

and Liberty in Judicial Ethics, 9 Geo. J. Legal

Ethics 1059 (Summer 1996) ............cccsecsseeeeeees passim

Gordon S. Wood, The Creation of the American

P Republic 1776-1787 151 (1969) ......c.cseeceeeeeees 17, 18

Richard Woodbury, Is Texas Justice for Sale?:

The State’s Top Judge Resigns to Fight for

Reform, Time, Jan. 11, 1988...................:cceeeeeees

to

STATEMENT OF AMICUS CURIAE '

The Conference of Chief Justices (“the Conference”’) is the

national voice of the State courts in the United States con-

cerning matters of importance in improving the adminis-

tration of justice. The Conference is comprised of the Chief

Justices from the highest courts of each State, the District of

Columbia and the Commonwealths of Puerto Rico and the

Northern Mariana Islands, and the Territories of American

Samoa, Guam and the Virgin Islands.

The Conference unanimously authorized the filing of an

amicus brief at its January 2002 meeting, and this brief has

been approved by a special committee of the Conference.

The unique challenges of judicial elections have led to

special efforts by Chief Justices from States in which

members of the judiciary face election. In December 2000,

the Chief Justices from the seventeen most populous such

States convened a Summit, chaired by Chief Justice Thomas

R. Phillips of Texas, on Improving Judicial Selection. In

January 2001, a Call To Action was issued stating the

Summit’s recommendations. See Call To Action, 34 Loy.

L.A. L. Rev. 1353 (2001). Among those recommendations

were two that dealt with the Canons on judicial campaign

activity. The Summit urged that a Symposium on Judicial

Campaign Conduct be held to “reexamine [the Canons] to

assure that they promote fair elections while safeguarding the

right to free speech.” That Symposium, chaired by Chief

Justice Randall T. Shepard of Indiana and co-hosted by seven

other Chief Justices, was held in November 2001; a statement

'The brief is filed with the consent of all parties, as indicated by letters

of consent filed with the Court. This brief was not authored, in whole or

in part, by any counsel for any party. No one other than amicus or its

counsel made a monetary contribution to the preparation or submission of

this brief.

2

of recommendations is in process.” For the Summit and

Symposium, staff services were provided by the National

Center for State Courts, which regularly provides such sup-

port for the Conference (and other organizations).

In short, a substantial number of the members of the Con-

ference, working through the National Center for State Courts,

have been acting together to study and recommend steps to

address the complex issues presented by judicial elections.

SUMMARY OF ARGUMENT

The Conference does not take any position on the language

of the announce clause of the Minnesota Judicial Canon, or any

other Canon. The Conference urges this Court to decide the

case in a way that preserves the States’ flexibility to balance

First Amendment concems against other constitutional commit-

ments to the Due Process rights of litigants and the indepen-

dence of the judiciary within a system of separated government

powers. Because this Court’s decision could affect the conduct

of judicial elections in thirty-nine States, the precise contours

of its opinion will have national significance.

First, for well over a century, the States have worked to

structure judicial elections so that judges could be selected by

voters without impairing the traditional role of an inde-

pendent and impartial judiciary. States adopting elections for

the judiciary did so, in fact, to enhance their independence.

Moreover, the thirty-nine States that select at least some of

their judges by election > have implemented an array of

2 The Symposium papers will appear in 77 Ind. L.J. in the Spring

of 2002.

> In seven States, no judges face elections; in four, probate judges are

elected (Connecticut, Maine, South Carolina and Vermont). Hereafter, we

put aside those eleven States and address the thirty-nine others. See our

Appendix and A.B.A. Rep. & Recommendations of the Task Force on

Lawyers’ Political Contributions (pt. 2) app. 2 at 69-76 (1998) (here-

inafter “ABA Task Force Report”) for a listing of the thirty-nine States with

3

measures, through constitutional provisions, codes of conduct

and otherwise, designed specifically to preserve for the

judiciary its traditional role even as judges are required to

stand for election. Contrary to the suggestion of other amici,

the choice before the States has not been one between

elections conducted like all others, without reasonable and

meaningful limits, or no elections at all. History shows that

having adopted elections, States are unlikely to eliminate

them, but pursue instead “innovation and experimentation,”

see Gregory v. Ashcroft, 501 U.S. 452, 458 (1991), in

balancing the competing constitutional values. The States’

historic commitment to this balance merits careful consid-

eration from this Court.

Second, the right the Due Process Clause provides litigants

to unbiased, impartial, open-minded judges, both as a matter

of fact and as a matter of perception, must be carefully

weighed along with the First Amendment rights presented

in this case. See Randall T. Shepard, Campaign Speech:

Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal

Ethics 1059 (Summer 1996). While some lower courts have

referred to impartiality as a compelling state interest, few

explicitly recognize the constitutional dimension of the

interest embodied within the Due Process Clause, and most

simply ignore it. Petitioners and some amici acknowledge the

constitutional nature of the state interest but suggest that the

Due Process Clause is violated only when a judge should

elections. Nationally, 86.9% of state judges face elections of some type;

53% of appellate judges and 77.3% of trial judges (general jurisdiction) face

contestable elections. /d at 3 n.1 (based on 1998 and 1996 sources).

Our Appendix, based on the ABA Task Force Report, supra, app. |,

shows just which States have what system(s). This shows that: among

the thirty-nine States, nineteen have retention elections (in seven, for all

judges). Contestable elections occur in thirty-three States: twenty have

nonpartisan elections (in twelve, for all judges), and sixteen have partisan

elections (in seven, for all judges); three of those States have both

nonpartisan and partisan elections (Idaho, Indiana and North Carolina).

4

have stepped aside, but did not, in a specific case based on

particular statements made during a campaign. This sug-

gestion, however, is underinclusive as some judicial speech

may violate the State’s interest in an impartial judiciary even

if it does not violate a particular litigant’s due process rights.

In contrast, the States should be permitted to focus on

preventing disqualification problems in the first instance.

The Conference urges that this Court focus on the perspective

of she States in structuring their judicial systems in deciding

the case.

Third, the issue in this case presents squarely the role of

judicial independence within state constitutional provisions

for the separation of governmental powers as well as checks

and balances. Only an independent judiciary, unencumbered

by commitments to popular majorities, is able to discharge its

historic constitutional obligations, including review of legis-

lative actions produced by those same majorities. As this —

Court has recognized the “fundamental tension” between the

requirements of an independent judiciary and the demands of

electoral politics, see Chisom v. Roemer, 501 U.S. 380, 400

(1991), so have the States acknowledged this tension and the

differences between the work of legislators and the work of

judges that underlies it. By enacting reasonable limits on

judicial campaign conduct and speech, States have sought to

strike a balance among the different constitutional pressures

at work within a judicial elective process. The need for such

limits has become increasingly evident under the “realities”

of modern judicial campaigns,’ as judicial candidates come

* See Fed. Election Comm'n v. Colo. Republican Fed. Campaign

Comm., 533 U.S. 431, 477 (2001); Anthony Champagne, Television Ads

in Judicial Campaigns, 77 Ind. L.J. (forthcoming 2002) (presented at

November 2001 Symposium on Judicial Campaign Conduct and the First

Amendment); Thomas R. Phillips, Comment on Judicial Independence

and Accountability, 61 Law & Contemp. Probs. 127, 130 (Summer 1998).

5

under pressure to win office with commitments, express or

clearly implied, on the controversial political and legal issues

of the day.

ARGUMENT

I. THE STATES HAVE HISTORICALLY IMPLE-

MENTED A VARIETY OF MEASURES TO

PROVIDE FOR JUDICIAL ELECTIONS WHILE

PRESERVING THE DISTINCTIVE ROLE OF

THE JUDICIARY.

This Court has recognized “a fundamental tension between

the ideal character of the judicial office and the real world of

electoral politics,” Chisom v. Roemer, 501 U.S. 380, 400

(1991), and the States, while choosing to hold judicial elec-

tions, have been mindful of that tension. They have striven

consistently and with care to balance judicial accountability

with judicial independence and impartiality. The Conference

urges this Court to bear in mind the impact its decision will

have on the States’ historic efforts to handle the unique

challenges state judicial elections present. -

Between 1846 and 1860, twenty-one States had constitu-

tional conventions, nineteen of which chose elections, with

only Massachusetts and New Hampshire holding out.’ It is

not correct that the choice of elections was “an unthinking

‘emotional response’ rooted in ... Jacksonian Democracy”

which somehow “assumed that popular election of judges

constituted a radical measure intended to break judicial power

through an infusion of popular will and majority control.”

Kermit L. Hall, The Judiciary on Trial: State Constitutional

* By 1860, twenty-one of our thirty States elected judges. See Kermit

L. Hall, The Judiciary on Trial: State Constitutional Reform and the Rise

of an Elected Judiciary, 1846-1860, 44 Historian 337 (1983) for a

discussion of the history of judicial elections. See also Caleb Nelson, A

Re-evaluation of Scholarly Explanation for the Rise of the Elective

Judiciary in Antebellum America, 37 Am. J. Legal Hist. 191 (1993).

6

Reform and the Rise of an Elected Judiciary, 1846-1860, 44

Historian 337, 338-39 (1983). On the contrary, the move to

judicial elections was led by moderate lawyer-delegates to

increase judicial independence a..d stature. Their goal was a

judiciary “free from the corrosive effects of politics and able

to restrain legislative power.” Jd.

Moderate reformers built consensus among delegates by

adopting constitutional devices designed to limit the poten-

tially disruptive consequences of popular election. /d. at 342,

352. For example, provisions rendering judges ineligible to

run for other offices while serving on the bench were

intended to prevent the political use of judicial office to win

other offices. Staggered terms for appellate judges were

aimed at averting sweeping changes in the composition of the

courts resulting from increased “party feeling” in a particular

election. These measures and others, such as longer terms

and “retention” elections, served the goal of restricting the

“impact of party and majority rule.” /d. at 352.

The constitutions of the thirty-nine States in which judges

face elections of some type have an array of such provisions,

unique to the judiciary, to accommodate the choice of popular

selection with the constitutional value of judicial independ-

ence. See, e.g., P. App. 37a n.18. Most would be unthinkable

for other elected officials in the legislative and executive

branches. In all thirty-nine States (except Nebraska), judges’

terms are longer than any other elective officials’.® In thirty-

° See, e.g., Ariz. Const. art. 6, § 4; Cal. Const. art. 6, § 16; Ga. Const.

art. 6, § 7 41; Ill. Const. art. 6, § 10; Mich. Const. art. VI, § 2; Minn.

Const. art. 6, § 7; N.Y. Const. art. 6, § 2; Ohio Const. art. IV, § 6; Tex.

Const. art. 5, § 2. Here and in notes 6-10, all citations are to constitutional

provisions; no statutory provisions are included.

Of appellate judges who face elections, 38.5% have terms of ten to

fifteen years and another 60.6% have six to eight year terms. Of trial

judges who face elections, 13% have terms of ten to fifteen years, and

another 67.6% have six to eight year terms. Citizens for Independent

7

seven of these States, only judges are subject to both

impeachment and special disciplinary process.’ In thirty-

three, judges are the only elective state officials subject to

requirements of training and/or experience (except that in ten

of those, the attorney general is subject to similar

requirements).® In twenty-three, only judges are subject to

mandatory age retirement.’ In twenty-one, only judicial

nominations go through nominating commissions; in six

States, this applies even to interim appointments.” Last, in

eighteen States, only judges cannot run for a nonjudicial

office without first resigning.''

This pattern shows that the choice of elections, “while

perhaps a decision of questionable wisdom, doés not signify

the abandonment of the ideal of an impartial judiciary

carrying out its duties fairly and thoroughly.” Stretton v.

Disciplinary Bd., 944 F.2d 137, 142 (3d Cir. 1991). The

thirty-nine States have recognized that, far from fulfilling the

historic purpose in allowing for the popular election of

Courts, Uncertain Justice: Report of the Citizens for .ndependent Courts

Task Force on Selecting State Court Judges 77, 90-92, 116-17 (2000).

” E.g., Ariz. Const. art. 6.1, § 3; Cal. Const. art. 6, § 18(d); Ga. Const.

art. 6, § 7 | VI; Ill. Const. art. 6, § 15(b); Mich. Const. art. VI, § 30; Minn.

Const. art. 6, § 9; N.Y. Const. art. 6, § 22; Ohio Const. art. VI, § 17; Tex.

Const. art. 5, § 1-a.

* E.g., Ariz. Const. art. 6, § 6; Cal. Const. art. 6, § 15; Ga. Const. art. 6,

§ 7 4 Il; Ill. Const. art. 6, § 11; Minn. Const. art. 6, § 5; N.Y. Const. art. 6,

§ 20; Tex. Const. art. 5, § 2.

° E.g., Ariz. Const. art. 6, § 39; Cal. Const. art. 6, § 20; Ill. Const. art.

6, § 15(a); N.Y. Const. art. 6, § 25; Ohio Const. art. IV, § 6(c); Tex.

Const. art. 5, § 1-a(1).

' £.g., Ariz. Const. art. 6, § 37; Cal. Const. art. 6, § 7; Ky. Const. art.

Ill, § 118(2) (with interim appointments included); N.M. Const. art. VI,

§ 35 (with interim appointments included); N.Y. Const. art. 6, § 2(c).

"' E g., Ariz. Const. art. 6, § 28; Cal. Const. art. 6, § 17; Ill. Const. art.

6, § 13(b); Mich. Const. art. VI, § 21; Minn. Const. art. 6, § 6; N.Y.

Const. art. 6, § 20(b)(1); Ohio Const. art. IV, § 6(b).

8

judges, any effort to treat judicial elections like others wholly

undermines the judiciaries’ independent role under their

constitutions. Their balanced approach to the proper structure

for an elected judiciary embodies the understanding that

the word “representative” connotes one who is not only

elected by the people, but who also, at a minimum, acts

on behalf of the people. Judges do that in a sense—but

not in the ordinary sense. . . . [T]he judge represents

the Law—which often requires him to rule against

the People.

Chisom, 501 U.S. at 410-11 (Scalia, J., dissenting).

Contrary to the suggestion of one petitioner and one of the

amici, see Pet’r Republican Party of Minnesota Br. at 38-39;

Idaho Conservation League and Louisiana Environmental

Action Network Br. at 7-23, this case does not present the

Court with a choice between forcing States to conduct

judicial elections like all other elections, and prohibiting

judicial elections altogether. The voters in these States have

generally rejected efforts to dismantle judicial elections,

choosing to maintain in place judicial election processes

which have historically included safeguards to protect the

traditional role of the judiciary.'* There is no support for the

proposition that the electorate has viewed the choice as one

between legislative-type elections or no elections at all. Any

2 In 1906, when Roscoe Pound gave a landmark address to the ABA,

roughly fourteen percent of our state judges faced no elections. Roy A.

Schotland, Summit on Improving Judicial Selection: Personal Views, 34

Loy. L.A. L. Rev. 1361, 1367 (2001). Today that number stands at

thirteen percent. /d A failed attempt to abandon the elective system in

Florida exemplifies its resiliency. In 2000, for example, Florida voters

faced a ballot proposition to decide whether their trial judges should

continue to run in nonpartisan, contestable elections, or should instead be

subject to merit appointments with subsequent retention elections. The

change was defeated in every circuit and in every county. Roy A.

Schotland, Financing Judicial Elections 2000: Change & Challenge,

2001 L. Rev. M.S.U.-D.C.L. 1, 37-41 (forthcoming).

9

suggestion to the contrary assumes, improbably, that voters,

by choosing elections, have chosen also to have a judiciary

transformed radically in character. For these reasons, States

will continue to conduct elections while continuing also to

grapple with the challenges those elections present for an

independent and impartial judiciary.

Il. DUE PROCESS REQUIRES JUDGES WHO

WILL “HOLD THE BALANCE NICE, CLEAR

AND TRUE.”

Petitioners agree with the Eighth Circuit’s conclusion that

“a judge’s ability to apply the law neutrally is a compelling

governmental interest of the highest order.” Pet’r Republican

Party of Minnesota Br. at 4 (citing P. App. 21a). They

acknowledge “the due process clause of the United States

Constitution sets the floor.” /d. at 18. “Due process,” they

admit, “requires trial before an unbiased judge.” /d. (citation

omitted). The Conference concurs.

Petitioners and some of their amici suggest, however, that

the due process analysis should only be considered on a case-

by-case basis, involving the standards and process of

disqualification. /d. ot 19-21; American Civil Liberties Union

Br. at 16-18; Public Citizen Br. at 6-7. Yet, if a judge steps

down from any case involving a campaign promise, the voters

do not get what they believe they were promised. Petitioners’

retrospective approach further imposes on litigants burdens

and risks, and imposes on the judicial system both avoidable

litigation and the potential loss of many judges’ services. In

contrast, States with judicial elections sensibly choose to

structure those elections to protect guarantees under the Due

Process Clause for all litigants rather than subjecting litigants

to the burdens and inefficiencies of post-election disquali-

'> Tumey v. Ohio, 273 U.S. 510, 532 (1927).

10

fication or recusal '* procedures. In short, disqualification is

inadequate because it does not protect the State’s interest in

an impartial judiciary, an interest that paca! ls but is separate

from the interests of particular litigants.

At stake in this case is how much flexibility the States and

their supreme courts (judges regulating other judges) will

have in regulating their own judges. This Court has recog-

nized that there “could hardly be a higher governmental

interest than a State’s interest in the quality of its judiciary.”

Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

848 (1978). The Due Process Clause’s guarantee of impartial

judges, both as a matter of fact and-as a matter of perception,

is a compelling state interest. The dissent in the Eighth

Circuit (and other lower courts and some amici) overlooked

the due process rights to a fair trial before an impartial

tribunal as a compelling state interest. P. App. 92a-93a

(“must give way before rights which, unlike the court's policy,

have been constitutionally secured”) (emphasis added).

A. States Must Have Latitude to Address the

Serious Due Process Issues Presented by Judicial

Candidate Speech, and Cannot Rely on Disqual-

ification Procedures Alone.

This Court has repeatedly recognized that judicial bias, or

even the appearance of bias, violates the Due Process Clause.

Concrete Pipe & Products v. Constr. Laborers Pension Trust,

508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and

detached judge in the first instance’’’ (citing Ward v. Village of

Monroeville, 409 U.S. 57, 61-62 (1972)); Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 822 (1986) (Due Process Clause

'* While traditionally “disqualification” was involuntary and “recusal”

voluntary, in modern practice the terms “are frequently viewed as synony-

mous and often used interchangeably.” Richard E. Flamm, Judicial

Disqualification: Recusal and Disqualification of Judges, § 1.1, at 4-5

(Little, Brown & Co. 1996).

ll

violated when judge had “direct, personal, substantial, pecu-

niary” interest in outcome); Marshall v. Jerrico, Inc., 446 U.S.

238, 242 (1980) (“no person will be deprived of his interest in

the absence of a proceeding in which he may present his case

with assurance that the arbiter is not predisposed to find against

him”); Ward, 409 U.S. at 59-60 (Due Process Clause offended

when system tempts “average man as a judge . . . not to hold

the balance nice, clear and true” (citing Tumey v. Ohio, 273

U.S. 510, 532 (1927))); Johnson v. Mississippi, 403 U.S. 212,

216 (1971) (“Trial before an ‘unbiased judge’ is essential to

due process” (citing Bloom v. Illinois, 391 U.S. 194, 205

(1968); Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971)));

In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a

fair tribunal is a basic requirement of due process. ... [Our

system has always endeavored to prevent even the probability

of unfairness ... [even though this may] sometimes bar trial

judges who have no actual bias, and who would do their very

best to weigh the scale of justice between contending

parties.”); Offutt v. United States, 348 U.S. 11, 14 (1954)

(“justice must satisfy the appearance of justice”); Tumey, 237

U.S. at 523 (it “violates the Fourteenth Amendment, and

deprives a defendant in a criminal case of due process of law,

to subject his liberty or property to the judgment of a court the

judge of which has a direct, personal, substantial pecuniary

interest in reaching a conclusion against him in this case”).

This Court has made clear that the contours of the Due

Process Clause in this context “cannot be defined with

precision,” and that a “reasonable formulation of the issue is

whether the ‘situation is one which would offer a possible

temptation .. . to the average . . . judge to . . . lead him not to

hold the balance nice, clear and true.’’’ Aetna, 475 U.S. at

825 (citing Ward, 409 U.S. at 60). Because the judicial

interest “cannot be defined with precision,” id., this Court

should give latitude to the States and their supreme courts

who are attempting to structure court systems to effectively

12

address the questions of impartiality that imperil the rights of

litigants under the Due Process Clause. '°

While due process is a necessary part of a fair and

impartial trial, “it is not a right that lends itself to a fixed or

immutable definition.” Richard E. Flamm, Judicial Disquali-

fication: Recusal and Disqualification of Judges, § 2.3.2, at

33 & n.13 (Little, Brown & Co. 1996). “Though impartial

judges are constitutionally mandated and the due process

clause sets a standard for judicial impartiality below which no

judge is constitutionally permitted to fall, judicial disqualifi-

cations are rarely made on due process grounds.” /d. § 2.3.3,

at 33-34 & n. 17 (citing, inter alia, Aetna, 475 U.S. at 820).

States may, of course, impose more rigorous judicial

disqualification standards than due process requires. /d. at 34

& n.19 (citing, inter alia, Aetna, 475 U.S. at 828; FTC v.

Cement Inst., 333 U.S. 683, 702 (1948); Tumey, 273 U.S.

at 523). Such efforts are “to promote public confidence in the

integrity of the judicial process.” Jd. at 36 & n.19 (citing,

inter alia, Liljeberg v. Health Servs. Acquisition Corp., 486

U.S. 847, 860 (1988)). The public confidence in the

impartiality of judges has constitutional dimensions, id. at 36

n. 34 (citing Liljeberg, 486 U.S. at 865 n.12), not addressed

by Petitioners.

Disqualification procedures are insufficient. See Shepard,

supra, at 1082. Recusal does not help the litigant who is

unaware of the judge’s statements, and often the litigant bears

the expensive and time-consuming burden of raising and

litigating the question of recusal. Recusal also imposes costs

'S For example, since 1995 Ohio has taken official steps to promote

constructive judicial campaigns and reduce the likelihood of problematic

conduct. See Richard A. Dove, Judicial Campaign Conduct: Rules,

Education, and Enforcement, 34 Loy. L.A. L. Rev. 1447, 1456-57, 1460-

61, 1463-64 (2001). All judicial candidates must attend a special course

early in the campaign year, and special panels of judges and an expedited

hearing process are in place to deal with problematic conduct if it occurs.

See id.

13

and delays on the public and other litigants as cases are

shuffled from court to court. Moreover, recusal does not

serve the voters who elected a judge based on her stated

views. Finally, a reliance on recusal would permit a judicial

candidate to offer up whatever view seemed to get the most

votes or the most contributions, with full knowledge that the

candidate would never have to stand by it as a judge.

Impartiality is thus secured only by a form of electoral fraud,

which could entail also ethical violations for deliberate

misrepresentations in the course of a campaign.

Courts facing disqualification issues presented in this

context are generally reluctant to probe into election-related

influence or motivation. See, e.g., Nevius v. Warden, 960

P.2d 805, 810 (Nev. 1998) (Springer, C.J., dissenting)

(“Judges should be judging crime, not ‘fighting’ crime”);

State v. Kinder, 942 $.W.2d 313, 321-22 (Mo. 1996) (not

willing to disqualify a trial court judge who six days before

presiding over a capital trial of a black defendant, and who

faced election later that year, issued a press release

announcing a decision to switch political parties claiming that

his prior party had “place[d] far too much emphasis on .. .

people with a skin that’s any color but white” and he

expressed opposition to “reverse-discrimination quotas and

affirmative action”). Precisely to avoid such situations, States

have been unwilling to rely on disqualification to address the

impact of campaign activity on due process guarantees.

B. Judicial Candidate Speech on Political or Legal

Issues Likely to Come Before Courts Carries a

High Risk of Improper Prejudgments or Com-

mitments, Whether Express or Implied, in

Violation of Due Process Guarantees.

When a judicial candidate speaks out on disputed legal or

reasonably uses those statements to form expectations about

the treatment of issues likely to come before that judge.

14

There is, in fact, no other reason why a judicial candidate

would offer such statements in the course of the campaign,

nor any other use that voters would make of them. Numerous

amici acknowledge this point. See, e.g., Amici Curiae [Two]

State Supreme Court Justices Br. at 23-24; Amicus Curiae

Chamber of Commerce of the United States Br. at 5-7.

As a result, campaign statements about the candidate’s views

on issues likely to come before the court leave litigants facing

a judge who, at worst, is actually biased or who, at best,

cannot provide the appearance of impartial justice. Judicial

canons limiting campaign conduct attempt to limit the

circumstances in which a due process problem of this

magnitude could result.

Rejecting a First Amendment challenge to such a Canon,

the Third Circuit stated:

If judicial candidates during a campaign prejudge cases

that later come before them, the concept of impartial

justice becomes a mockery. The ideal of an adjudication

reached after a fair hearing, giving due consideration to

the evidence produced by all parties no longer would

apply and the confidence of the public in the rule of law

would be undermined.

Stretton, 944 F.2d at 142.

Even if candidates argue—much less believe in good

faith—that they can wipe the slate clean of campaign

promises to decide a case, “the requirement of due process

... is not satisfied by the argument that men of the highest

honor and the greatest self-sacrifice could carry it on without

danger of injustice.” Tumey, 273 U.S. at 532. Due process

guarantees more than a possibility that a judge would back

down from his public statements if convinced to do so. In the

current climate of judicial elections, there is a strong

influence on a judge to stand by campaign statements on

which he staked his hopes of victory—and behind which he

would have to stand in seeking reelection. Under the worst

15

circumstances, such a campaign “promise” is like “a bribe

offered to voters, paid with rulings consistent with that

promise, in return for continued employment as a judge.”

Shepard, supra, at 1088.

Canons limiting judicial candidate campaign conduct are

“straightforward” regulations of expression that do not

discriminate in favor of one viewpoint or another. They do

not suppress ideas or seek to control political opinions. See

United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter

Carriers, 413 U.S. 548, 564 (1973).

A hypothetical campaign promise made in the most literal

sense, such as “I will impose the maximum sentence in every

drunk driving case,” commits the candidate to a result

regardless of the applicable laws or the facts presented. The

canon protects accused drunk drivers from a predisposed

judge, who cannot, by virtue of a campaign promise, fulfill

the duty to consider all the relevant sentencing factors,

including, for example, the accused’s prior record, property

damage or personal injury, and the proven blood alcohol

level. A judge’s failure to consider these factors could

warrant reversal and would certainly violate the defendant’s

due process rights. Shepard, supra, at 1093; see also Robert

M. O’Neil, The Canons in the Courts: Recent First Amend-

ment Rulings, 77 Ind. L.J. (forthcoming 2002) (presented at

November 2001 Symposium on Judicial Campaign Conduct

and the First Amendment).

Courts reviewing the efforts of States to limit judicial

campaign activity have historically been sensitive to First

Amendment rights affected by these limitations. For

example, the district court, the Eighth Circuit, and now the

Minnesota Supreme Court have construed the announce

clause before this Court to apply only to statements

displaying a pre-disposition on issues likely to come before

the elected judge. See, eg. P. App. 52a-53a; 128a. The

Conference urges this Court to respect the difficult but

Pe

16

essential balance that States have labored to achieve and that

lower courts have, by and large, approved, in some instances

with the aid of narrowing constructions. P. App. 53a-56a.

Judicial canons limiting statements by judicial candidates that

indicate or suggest bias, if applied with proper, limiting

construction, lead to the right result: they protect the due process

rights of litigants by preventing judicial candidates from

acquiring an improper interest in the outcome of litigation, and

by preventing the appearance of such an interest. The

prevention of actual and apparent judicial bias, recognized by

the Eighth Circuit here and by other circuits in Stretton and

Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 228 (7th Cir.

1993), is the same interest that this Court has protected under the

Due Process Clause. The right to an impartial judge, guar-

anteed by the Due Process Clause, is a compelling governmental

interest. The best approach to resolving challenges to canons

regulating judicial campaigns is to accommodate as much

speech by judicial candidates as the Due Process Clause permits,

viewed from the context of States’, and their supreme courts’,

attempts to structure their judicial systems to avoid these

difficulties. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 400

(2000) (Breyer, J., concurring) (“this is a case where consti-

tutionally protected interests lic on both sides of the legal

equation.”).

Ill. THIS CASE RAISES ISSUES CENTRAL TO

STATE EFFORTS TO PROTECT THE INDE-

PENDENCE AND DISTINCT ROLE OF THE

JUDICIARY UNDER STATE CONSTITU-

TIONAL SCHEMES OF SEPARATED POWERS.

A. The “Basic Principle” of Separated Powers

Compels Close Attention to the Effect of

Elections on Judicial Independence.

Petitioner Minnesota Republican Party argues that “this

case is not about judicial independence.” Pet’r Minnesota

Republican Party Br. at 8. Moreover, neither Petitioners nor

ee

17

any amici even refer to state constitutional frameworks of

separated powers which depend in substantial measure on the

protection of that independence. The Conference respect-

fully suggests, however, that the question before this Court

involves in the most fundamental way these profound con-

stitutional concerns.

Certainly the court below correctly appreciated the States’

understanding that limitations on judicial campaign conduct

and speech, taken together with other constitutional and

statutory procedures for the conduct of judicial elections, “are

designed in large part to protect the independence of the

State’s judiciary.” See P. App. 25a. Attending closely to the

requirements of judicial independence, the States have prop-

erly kept in view the “basic principle” of separation of powers

which compels “allocating specific powers and responsibil-

ities to a branch fitted to the task.” Loving v. United States,

517 U.S. 748, 757 (1996).

The separation of powers doctrine requires, in practical

application, “an analysis of governmental functions,” W.B.

Gwyn, The Meaning of the Separation of Powers 26 (1965),

and sensitivity to the maintenance of the checks and balances

necessary to protect each branch of the government from

“encroachment and aggrandizement” by another. Mistretta v.

United States, 488 U.S. 361, 381 (1989). No principle has

more centrally shaped organization of state governments and

in particular the relationships between and among their

branches. Rooted in pre-Revolutionary political thought that

cast the mold for the federal and state constitutions to follow,

see Bernard Bailyn, The Ideological Origins of the American

Revolution 74 (1967), the doctrine of separated powers for the

judicial, executive and legislative branches came quickly to

define for States “the very characteristic of the American

political system.” Gordon S. Wood, The Creation of the

18

American Republic 1776-1787 151 (1969). State consti-

tutions throughout the country, like Minnesota’s, reflect the

centrality of this commitment. ,

In choosing judicial elections, States have not abandoned

their concern with preserving fully separated powers. The

States know that if candidates for judicial office appeal for

voters’ support on the same basis as legislative candidates—if

they answer to the same electoral majorities—the courts run

the grave risk of becoming second legislatures. As electoral

twins to the legislatures, courts would stand to lose the

essential independence required for them to discharge their

high constitutional duty of judicial review. See, e.g., Cooper

v. Aaron, 358 U.S. 1, 18 (1958); Marbury v. Madison, 5 U.S.

137, 177 (1803). For this reason, States in the early Republic

acted to establish that independence, expecting that the

judiciary could only then provide the necessary “check” on

legislative excess fueled by popular passion. See Wood,

supra, at 404, 451.'’ Since that time, States—including

States with judicial elections—have remained vigilant in

protecting that independence, adopting a variety of measures

to secure it. See supra Part I.

'© Thus Article 3, Section 1, of the Minnesota Constitution states that

“[T]he powers of government shall be divided into three distinct

departments: legislative, executive and judicial. No person or persons

belonging to or constituting one of these departments shall exercise any of

the powers properly belonging to either of the others except in the instances

expressly provided in this constitution.” Minn. Const. art. 3, § 1 (2000).

'7 James Madison illustrated the general principle a different way, by

opposing a proposal that would have facilitated the conduct of consti-

tutional conventions as a means of checking governmental abuse. Madi-

son objected that the proposal would have conferred an undue advantage

on the legislature, whose members, skilled in the electoral arts, would

have the advantage in seeking election to the constitutions. Because “the

same influence which had gained them an election into the legislature

would gain ‘hem a seat in the convention,” the convention could not

effectively act as a check on legislative excess. The Federalist No. 49, at

316 (James Madison) (Clinton Rossiter ed.).

19

Judicial review, unburdened by undue popular pressures, is

necessary to assure that a majority “united by a common

interest” does not threaten the rights of the minority. The

Federalist No. 51, at 324 (James Madison) (Clinton Rossiter

ed.). This Court has recognized, for example, the role of

“searching judicial inquiry” where legislation reflects

“prejudice against discrete and insular minorities . . . which

tends seriously to curtail the operation of the political

processes ordinarily to be relied upon to protect minorities.”

United States v. Carolene Prods., 304 U.S. 144, 153 n.4

(1938). This is valued even when popular majorities effect

their will directly by referendum or initiative. See, e.g.,

Evans v. Romer, 854 P.2d 1270, 1285 (Colo. 1993)

(Constitutional amendment impermissibly “fenced out” from

participation in the political -process “an independently

identifiable group.”), aff'd, 517 U.S. 620 (1996).

These same concerns apply beyond constitutional judicial

review, to routine review of agency action. “Policy argu-

ments,” as this Court has made clear, “are more properly

addressed to legislators or administrators, not to judges.”

Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837,

864 (1983). Chevron principles hold true for state courts.

State courts, like federal courts, must proceed in reviewing

agency action with the understanding that “[jJudges are not

experts in the field, and are not part of either political branch

of the Government,” and that the resolution of the issues

before them must not depend on “their personal policy

preferences.” Chevron, 467 U.S. at 864. Because judicial

candidates, like other candidates, come under pressure to

place personal “preferences” front and center before the

voters, States impose limits on judicial candidate speech to

defend the boundaries of judicial decision-making.

Some amici before this Court, stressing the policy-making

role of state courts in common law adjudications, see, e.g.,

Gregory v. Ashcroft, 501 U.S. 452, 466 (1952), contend that

judges must be free in this circumstance to abandon the

20

chambers for the hustings, or to rule from the bench with a

close eye on the voter. See Amici Curiae [Two] State

Supreme Court Justices Br. at 4 (A state’s adoption of an

elective system “suggests that a certain degree of political

responsiveness [by elected judges] is not only permissible,

but is an intrinsic and expected element of the elective

judicial role.”). This suggestion is profoundly mistaken. The

courts do not engage in common law adjudication as surro-

gates for the legislature. Legislators attend closely to the will

of voters on election day, and to the direct imprecation of

interest groups and constituents at all other times. Judges

decide the cases before them by presiding over a distinctive

adversarial process and making a disciplined use of the tools

of their craft to decide impartially based upon the evidence

and the applicable law.

The States have sought to protect the judiciary in the

performance of its independent function through various

constitutional provisions, statutes and rules. See supra Part I.

The Supreme Court of Minnesota has carefully considered the

efforts of that State, concluding that “[{w)hile the framers of our

state constitution have developed a system of sclection and

election quite different from that federal scheme, they, too,

designed a plan to recognize the uniqueness and independence

of the state judiciary.” Peterson v. Stafford, 490 N.W.2d 418,

420 (Minn. 1992), cert. denied, 507 U.S. 1033 (1993), quoted

in P. App. 108a. The design of Minnesota's plan necessarily

involved complex choices that the States and the federal

government have always faced in preserving the judicial

independence within constitutional arrangements of separated

powers. See, e.g., Gerhard Casper, Separating Power 152

(1997). Yet in Minnesota and elsewhere, there is broad agree-

ment—even among jurists who favor an electiv = process—that

to protect judicial independence, states need “clear and

reasonable rules for judicial campaign behavior.” See, e.g.,

Shirley S. Abrahamson, The Ballot and the Bench, 76 N.Y.U.

L. Rev. 973, 1003 (2001).

21

B. Courts Have Long Recognized the Tension

between Independence and Electoral Account-

ability in Seeking to Preserve the Distinctive

Role of the Judiciary.

1. The Precedents Acknowledge the Unique

Issues Elective Systems- Present For the

Judiciary.

This Court has noted the “fundamental tension between the

ideal character of the judicial office and the real world of

electoral politics.” Chisom, 501 U.S. at 400. The lower

courts, while disagreeing on outcomes, have concurred on the

challenge presented by that “fundamental tension.” They

have agreed in particular about the source of the problem: that

the role of the judge is fundamentally different from that of

the legislator, and that this fundamental difference shapes the

issues raised by their respective candidacies for elective

office. This Court has summarily affirmed, for example, a

lower court ruling that the Equal Protection Clause of the

Constitution does not mandate the application of the “one

man, one vote” apportionment doctrine to judicial elections.

The lower court in that case specifically concluded that:

[T]he one man-one vote doctrine, applicable as it now is

to selection of legislative and executive officials, does

not extend to the judiciary. Manifestly, judges and

prosecutors are not representatives in the same sense as

are legislators or the executive. Their function is to

administer the law, not to espouse the cause of a

particular constituency.

Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972)

(citing Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga.

1964)), aff'd, 409 U.S. 1095 (1973).

Other lower courts have unanimously adopted this under-

standing of the core differences between legislators and

judges. See Buckley, 997 F.2d at 228 (“Judges remain

different from legislators and executive officials, even when

22

all are elected, in ways that bear on the strength of the state’s

interest in restricting their freedom of speech.”); Stretton, 944

F.2d at 142; Morial v. Judiciary Comm’n, 565 F.2d 295, 305 .

(Sth Cir. 1977).

Indeed, the differences acknowledged by the courts

between the work of legislators and that of judges are vast,

bearing directly on the fundamental differences in the

“political” responsiveness appropriately expected from them

by their “voters” and “constituents.” Elected legislators are

free to meet—at any time, openly or privately—with their

constituents or others affected by their action in pending or

future matters who enjoy a guaranteed constitutional right of

petition. In contrast, judges are insulated from contact with

the parties to a matter before them by both norms and legal

restrictions on ex parte contacts.’ * Unlike legislators, judges

cannot build support through constituent casework, patronage

or securing benefits for their communities. Other elected

officials expect and typically face competition, but few

judges do.'? While elected legislators may and do pledge to

change law and, if elected, often work reservedly toward

change, judges may not. Judges, to the contrary, are expected

to approach with restraint issues of great societal or political

'® See, e.g., Minn. Stat. Ann., Code of Judicial Conduct, Canon (3(A\7)

(2001); see also McKenzie v. State, 583 N.W.2d 744, 748 (Minn. 1998)

(“[c}learly a judge may not discuss a trial with one party unless the

opposing party is present”).

"9 See, e.g., Chief Justice Thomas R. Phillips, Address to the Joint

Session of the 73d Legislature of Texas 5 (Feb. 23, 1993) (“[O]ver eighty

percent [of Texas’s 481 judges sitting in 1993] were unopposed in both

the primary and general election when they first sought reelection. .. .

[O}f those . . . who initially reached the bench by appointment .. . fifty-

five percent have never had an opponent ... either in a primary or a

general election.”); see also Melinda Gann Hall, Competition in Judicial

Elections, 1980-1995 table 2 at 20 (Sept. 1998) (unpublished paper

delivered at 1998 American Political Science Association annual meeting)

(stating that forty-eight percent of incumbent justices are not challenged).

23

import; to this end they employ “devices for disposing of a

case while avoiding judgment on the constitutional issues it

raises,” which include the doctrines of standing, vagueness

and ripeness. See Alexander Bickel, The Least Dangerous

Branch 17, 117-18, 143, 150, 169 (Bobbs-Merrill 1957).”°

The politics of the legislative elective process turns on

commitments, unfettered dialogue and responsiveness, and it

does not end with election, but continues beyond, in the day-to-

day conduct of legislative office. The politician who won the

election is a politician still afterward, free to cultivate and

reward support by working with his supporters to advance

shared objectives. And because elected officials act in ways that

may directly affect large numbers of people, those affected may,

in turn, resort to political safeguards. See Minn. State Bd. v.

Knight, 465 U.S. 271, 283-87 (1984). But a judge, once elected,

must behave as a judge—acting, as an arbiter, neutrally toward

the identifiable and limited number of parties in each case.

Those parties, typically the only ones affected by the judge’s

actions, have no safeguard except the judge’s commitment to

taking action only on the facts and the law.

It is in light of these differences that the role of the judge-

as-political-candidate presents challenges for both the candi-

date and the State seeking to preserve the essential attributes

of the judiciary. Petitioner Minnesota Republican Party

concedes that, as the Eighth Circuit below stated the case, “it

is consistent with the essential nature of campaigns for

»° Blackstone’s comments on equity-the correction of deficiencies in

the law—explain the philosophical underpinnings of the idea:

[T}he liberty of considering all cases in an equitable light must not

be indulged too far, least thereby we destroy all law, and leave the

decision of every question entirely in the breast of the judge... .

[E}quity without law . . . would make every judge a legislator, and

introduce most infinite confusion.

George Sharswood, ed., Blackstone's Commentaries on the Laws of

England 60 (Childs & Peterson 1860).

24

legislative and executive offices for candidates to detail and

make promises about the programs that they intend to enact

into law and to administer.” Pet’r Minnesota Republican

Party Br. at 34 (citing P. App. 44a).

As a result, the conscientious judge has no choice but to take

care with campaign speech, being wary of even implying

promises or commitments. Failure to do so would visit, in

effect, either a fraud on the voters or a fraud on the office. The

successful candidate, recognizing that a commitment has been

made or perceived, cannot act on it without violating the

obligation to rule without prejudice or commitment. Alterna-

tively, the candidate may disregard the commitment, or the

perception of it, leading the voters to conclude that they have

been deceived.

States have responded to this dilemma with carefully

drawn limitations on speech, but also with other measures

intended to mitigate the effects of campaigning on judicial

independence. All but four States with judicial elections bar

personal fundraising and require that all fundraising be done

by the candidate’s campaign committee, in order to at least

reduce the candidate’s involvement in fundraising.”' At least

twenty-four States limit the time period during which fund-

raising is permitted, both before and after the election.”

ABA Task Force Report, supra, at pt. 2, 47-48.

Recognizing the fundamental differences between judges

and other officials that lie behind state limits on judicial

candidate speech and conduct, the courts have grappled with

the formulation of the appropriate constitutional standard. The

court below adopted a narrowly tailored/compelling interest

2! The four states are California, Texas, Idaho and Nevada. See ABA

Task Force Report, supra, at 40-41 n.73.

2 The pre-election window is one year in five states and shorter in

eleven states, and the post-election window is six months or shorter in

nineteen states. /d. at 48 n.2.

——_—_ —_ —

25

test. See P. App. 20a. Other courts, following this Court’s

analysis of Hatch Act prohibitions on public employees, see

Letter Carriers, 413 U.S. 548, have adopted versions of the

less stringent test articulated in that case. See, e.g., Stretton,

944 F.2d at 141 (construing the balance called for in Letter

Carriers to require narrow tailoring to a compelling interest);

Morial, 565 F.2d at 300 (interpreting Letter Carriers to require

a “reasonable necessity ... to achieve a compelling public

objective”); see also Buckley, 997 F.2d at 227-30 (stating no

tule, but balancing the interests of the State and the candidates

and examining the rule’s fit to the State’s interest)?’ Still

another line of authority suggests that a lesser degree of

scrutiny is appropriate when the speech in question implicates

the fair administration of justice. See Gentile v. State Bar, 501

U.S. 1030, 1057 (1991); see also Neb. Press Ass'n v. Stuart,

427 U.S. 539, 601 n.27 (1976) (Brennan, J., concurring) (“As

officers of the court, court personnel and attomeys have a

fiduciary responsibility not to engage in public debate that will

... Obstruct the fair administration of justice.”); Bridges v. -

California, 314 US. 252, 283 (1941) (Frankfurter, J.,

dissenting) (“[J)udges are restrained in their freedom of

expression by historic compulsions resting on no other officials

of government. They are so circumscribed precisely because

judges have in their keeping the enforcement of rights and the

protection of liberties which, according to the wisdom of the

ages, can only be enforced and protected by observing such

methods and traditions.”’).

The courts employing various constitutional tests are doing

so, however, on the basis of a common conviction—that the

judiciary’s role is distinctive, and that it calls for special

* Subsequent cases have interpreted Letter Carriers in differing ways.

Some, including Snepp v. United States, 444 U.S. 507, 509 n. 3 (1980),

and Brown v. Glines, 444 U.S. 348, 355 (1980), suggest that the

appropriate test is one requiring the restriction to be a reasonable means to

protect a substantial state interest.

26

protections when judges become candidates for elective

office. They agree also that reconciling electoral account-

ability with the judiciary’s unique function, while a difficult.

task, is essential. See, e.g., Buckley, 997 F.2d at 227 (“only a

fanatic would suppose that one of the principles should give

way completely to the other”); Morial, 565 F.2d at 300 n.5

(noting that First Amendment candidacy jurisprudence is

“difficult”); ACLU v. Florida Bar, 744 F. Supp. 1094, 1099

(N.D. Fla. 1990). At stake is the quality and principled

administration of justice by state courts whose members,

though required to stand for election, would remain faithful

still to what this Court has termed “the ideal character of the

judicial office.” Chisom, 501 U.S. at 400.

2. Any Standard for Judging Permissible Can-

didate Speech Must Take into Account the

“Political Realities” of Modern Campaigns.

In at least a few States, judicial elections in recent years

have come increasingly to resemble legislative and executive

contests in cost, intensity and style. See ABA Task Force

Report, supra, at 13 n.25 (“The changes in judicial elections

have been summed up as making them ‘nastier, noisier and

costlier.”” (citing Richard Woodbury, Js Texas Justice for

Sale?: The State's Top Judge Resigns to Fight for Reform,

Time, Jan. 11, 1988, at 74)); see also R. Darcy, Conflict and

Reform: Oklahoma Judicial Elections 1907-1998, 26 Okla.

City U.L. Rev. 519, 519 (Summer 2001). Any rule or

standard fashioned to distinguish permissible from impermis-

sible candidate campaign speech needs to take into account

“political realities” in this sphere, as this Court has counseled

in other cases involving campaign speech and activity. See,

e.g., Fed. Election Comm'n v. Colo. Republican Fed. Cam-

paign Comm., 533 U.S. 431, 477 (2001).

It is error to believe that campaign speech, like other speech,

depends for its effectiveness on “spelling out” the intentions of

the speaker. Much to the contrary, political tactics often favor

27

the concise, coded expressions that stop considerably short of

full exposition. See, e.g., Kathleen Hall Jameson, Dirty Politics:

Deception, Distraction and Democracy 85 (1992) (noting

Senecauies Ta ee

“telegraph ” a message). Political speech is frequently, and qui

deliberately, suggestive rather than explicit, often a

Se nny Siam and “e eaese exghietoated axtn-

of candidate-centered advocacy peppered with ambi

issue references has long proved the most effective advertising

strategy.” David A. Pepper, Recasting the Issue Ad: The Failure

of the Court's Issue Advocacy Standards, 100 W. Va. L. Rev.

141, 158 (1997).

One cause for the continued controversy over the announce

clause is that while the constitutional issues are apparent, so

are the means by which such “announcements” on “general

issues” provide, in the medium of political speech, ample

room for the communication of commitments. It matters less

how many words are used, and how precisely, and more what

is intended by the speaker and fully understood by the

audience. This attention to intention and to context may not

pass muster with courts in cases involving legislative cam-

paign finance, see, e.g., Fed. Election Comm'n v. Christian

Action Network, 894 F. Supp. 946, 957-58 (W.D. Va. 1995),

aff'd, 1996 U.S. App. LEXIS 19047 (4th Cir. Aug. 2, 1996),

but it is Vital in understanding the challenges of judicial

campaigning for an independent, impartial judiciary.

As the Court resolves the issue presented in this case, it is

urged to do so with careful attention to the difficulties presented

by candidate campaign speech—even on “issues”—for an inde-

pendent and impartial judiciary. In their efforts to address this

problem, the States are addressing a real and urgent one of

28

separating out informative speech from the kind, no less typical

of campaigns, intended to communicate commitments.

3. The Court’s Increased Role in the Adju-

dication of Prominent Issues Also Before the

Legislature and Executive Justifies Clear and

Reasonable Regulations of Judicial Cam-

paign Speech.

The issue before this Court arises at a time in the country’s

history when state and federal courts consider the widest

range of controversial issues in American politics and society.

See, e.g., Morial, 565 F.2d at 302 (“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.”); Buckley, 997 F.2d at 229 (“There is almost no legal

or political issue that is unlikely to come before a judge of an

American court, state or federal, of general jurisdiction.”).

These same issues—reproductive rights, gun control, the

regulation of tobacco, affirmative action, and others—also

occupy center-stage in the political process and in the

legislatures. See, e.g., Sampson v. State, 31 P.3d 88, 8

(Alaska 2001) (rejecting a claim that the Alaska Constitution

implies a right to physician-assisted suicide); Hilly v.

Portland, 582 A.2d 1213, 1215 (Me. 1990) (reviewing the

constitutionality of a statute requiring a permit for the carry-

ing of a concealed weapon); Pro-Choice Miss. v. Fordice,

716 So.2d 645, 649 (Miss. 1998) (reviewing a claim that

certain statutory restrictions on abortion are unconstitutional),

4 It is not correct that attempts to limit commitments are necessarily

frustrated—or rendered fatally inconsistent—by the right of “judges or

prospective judges” to take positions in “judicial opinions, legal briefs or

arguments, law review articles, op-ed pieces, books, or speeches that

predate the declaration of candidacy.” Public Citizen Br. at 13. There is

little danger that legal scholarship will be confused with campaign

statements, that-the two will have similar effects on potential voters, or

even that the audience for the one is the same as for the other.

= — << eer

29

Baker v. State, 744 A.2d 864, 886 (Vt. 2000) (asserting that

the Vermont Constitution mandates extension of state

marriage laws to same-sex couples).

An elected court in particular must avoid the perception or

the possibility that its members, having campaigned on such

issues, may be pressed to act more like elected legislators

than judges in resolving them. Here the danger is not, as

previously discussed, that courts will be unable to check the

legislature, but that they will be unable, under the pressures of

the campaign trail, to check themselves, and will intrude into

the prerogatives and methods of the other branches.

This check can be accomplished only by judges who

review and decide their cases as judges—by using the tools of

their craft. Those include an unrelenting focus on the facts

and the law, and the conduct of careful legal analysis

presented clearly and with integrity in opinions and orders.

Justice Cardozo, who was elected with party endorsement

to judicial office in New York, expressed the nature of the

judicial function in these terms:

[A]n important distinction separates ... judicial from

legislative activity. ...[TJhe judge . . . ought, in adher-

ence to the spirit of our modern organization, and in

order to escape the dangers of arbitrary action, to

disengage himself, so far as possible, of every influence

that is personal or that comes from the particular

situation which is presented to him, and base his judicial

decision on elements of an objective nature.

Benjamin Cardozo, The Nature of the Judicial Process

120-121 (1921).

Full engagement with the electorate as a political candidate

necessarily places severe strains on fidelity to these prin-

ciples. Yet these are the core principles which define—and

limit—the participation of judges in the controversial issues

of the day.

30

CONCLUSION

Amicus curiae, Conference of Chief Justices, respectfully

requests that this Court affirm the decision of the Eighth

Circuit insofar as it acknowledges the constitutional basis for

allowing States, when considering limits on judicial candidate

speech, to balance First Amendment concerns against the

tees of the Due Process Clause and the role of an

independent judiciary under our constitutional scheme of

separated powers.

Respectfully Submitted,

GEORGE T. PATTON, JR. Roy A. SCHOTLAND

SARAH STEELE RIORDAN Counsel of Record

BOSE MCKINNEY & EVANS LLP GEORGETOWN UNIV. LAW

700 North One Lafayette Centre CENTER

1120 20th Street, N.W. 600 New Jersey Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20001

(202) 973-1229 (202) 662-9098

ROBERT F. BAUER Attorneys for Amicus Curiae,

REBECCA H. GORDON Conference of Chief Justices

PERKINS COlE LLP

607 Fourteenth Street, N.W.

Washington, D.C. 20005

(202) 434-1602

February 19, 2001

la

APPENDIX

STATES AND THE TYPES OF JUDICIAL ELECTIONS

FOR SOME OR ALL OF THEIR JUDGES (Underlined

states have different judges facing different types of

elections.)

PARTISAN* RETENTION** NON-PARTISAN | NO JUDICIAL

ELECTIONS***

Alabama Alaska Arkansas Connecticut

Illinois California California Hawaii

Indiana Colorado Florida Massachusetts

Louisiana Illinois Idaho New Hampshire

Michigan Indiana Indiana New Jersey

Missouri lowa Kentucky Rhode Island

New Mexico Kansas Maryland South Carolina

New York Maryland Minnesova Vermont

North Carolina Missouri Mississippi Virginia

Ohio Nebraska Montana

Pennsylvania New Mexico Nevada

Tennessee Oklahoma North Carolina

Texas Pennsylvania North Dakota

West Virginia South Dakota Oklahoma

Tennessee Oregon

Utah South Dakota

Wyoming Washington

Wi

*In Michigan and Ohio (and recently for the Idaho Supreme Court)

judicial candidates appear on the general election ballot without party

labels, but their selection and campaigns are otherwise partisan.

** In Illinois, New Mexico, and Pennsylvania j initi

1 , judges are initial

sioctod Ia portnan lection, but their continence fs etermined i

retention elections; New Mexico has a uniquely hybrid process.

oss Included here are Connecticut, Maine, South Carolina and

Vermont, which elect probate judges. Except for this note, this Table

includes only appellate and general-jurisdiction trial judges.