Seventh Circuit dismisses right-to-listen claim

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A nonprofit group lacks standing to challenge the constitutionality of judicial canons, the Seventh Circuit held on Oct. 26.

The case arose in Indiana, but had the case considered the merits of the claim, it could have had an effect on Wisconsin judicial elections; instead, the result is that judicial candidates in Wisconsin can answer questionnaires from Wisconsin Right to Life, Inc., without fear of sanction from the judicial commission.

Indiana has a standard “pledges and commitments” clause, which provides: “A candidate, including an incumbent judge, for a judicial office … shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

In 2002, the U.S. Supreme Court held in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), that Minnesota’s “announce” clause violated the First Amendment. That clause provided that a candidate for judge shall not “announce his or her views on disputed legal or political issues.”

Relying on White, Indiana Right to Life, Inc., filed suit in federal court against the Indiana Commission on Judicial Qualifications and others (hereinafter “State”), alleging that Indiana’s “pledges and commitments” clause was similarly unconstitutional.

The plaintiffs had sent questionnaires to judicial candidates, seeking their opinions on the right to abortion.

The district court held the statute unconstitutional, and the State appealed.

In a decision by Judge Terence T. Evans, the Seventh Circuit reversed, holding that the plaintiffs lacked standing, and directing

that the case be dismissed by the district court on remand.

The court acknowledged that the First Amendment protects not just the right to speak, but to listen. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).

Nevertheless, the court concluded that a precondition of the right to listen is a candidate who wants to speak: “in order to assert its claim, Right to Life must establish the existence of a candidate who wants to answer the questionnaire. If there is no willing speaker, or if no speaker has been subjected to sanctions based on the Code, Right to Life does not have standing.”

The court distinguished White, because that suit was brought by a candidate for the Minnesota Supreme Court. Similarly, the plaintiff in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993), was a candidate for the Illinois Supreme Court.

The court wrote, “Right to Life is right that we had no trouble finding standing in [Buckley]. But, as should be obvious, what that case had and the present case lacks are plaintiffs who wanted to speak but felt constrained not to because of the Judicial Code or who were being disciplined for speaking out in violation of the Code.”

Because neither of the two judicial candidates who responded to the questionnaire were disciplined for doing so, and none of the six who responded to Right to Life, but declined to answer the questions, stated that they wished to answer them, the court concluded that Right to Life lacked standing, and reversed.

Case analysis

Although the case only directly concerns Indiana’s “pledges and commitments” clause, it is very relevant to Wisconsin.

Wisconsin has a similar provision, SCR 60.06(3)(b), which provides, “A judge, judge-elect, or candidate for judicial office shall not make or permit or authorize others to make on his or her behalf, with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.”

The local counterpart to Indiana Right to Life, Wisconsin Right to Life, Inc., distributed questionnaires regarding abortion to judicial candidates in 2006, and brought suit against the Wisconsin Judicial Commis-sion, arguing that the rule violated the First Amendment.
In contrast to the Seventh Circuit’s holding in the case at bar, U.S. District Judge John C. Shabaz recently held that the group did have standing to challenge the rule. Duwe v. Alexander, 490 F.Supp.2d 968 (W.D.Wis.2007)

However, the Wisconsin litigation was distinguishable from Indiana’s in a very key respect.

In Wisconsin, the group was able to find a judge, the Hon. Alan White of the Columbia County Circuit Court, to respond, “I would answer if the law permitted.” Id., at 971.

Another candidate for judge signed an affidavit stating that he was willing to answer all questions on the survey, but believed he was barred by the rule from doing so. Id.

As a result, Judge Shabaz concluded that the plaintiffs established there was a speaker who wished to engage in prohibited speech, and thus, they had standing to challenge the rule.

Turning to the merits, Shabaz concluded that the rule is narrowly tailored and constitutional, but that it may not constitutionally be applied to a judicial candidate who responds to Wisconsin Right to Life’s survey. Id., at 975-977.

No appeal from that decision was filed by either the Wisconsin Department of Justice or Wisconsin Right to Life (neither party won every issue, and both could have, had they chosen to, appealed).

As a result, the decision is final; judicial candidates in Wisconsin can expect to receive questionnaires from Wis-consin Right to Life, and they may answer them without fearing repercussions from the Wisconsin Judicial Com-mission. Candidates may still decline to do so, based on personal views that it is inappropriate to answer.