Restrictions on judges upheld

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An Aug. 20 opinion from the Seventh Circuit addressing Indiana’s Code of Judicial Conduct effectively immunizes some provisions in Wisconsin’s code from constitutional challenge, as well.

Earlier this summer, the court struck down Wisconsin’s ban on judges joining political parties on First Amendment grounds, while upholding the ban on publicly endorsing or speaking on behalf of a party’s candidates or platforms. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010).

In the case from Indiana, the court also upheld bans on judges engaging in fundraising or making campaign contributions, or holding leadership positions in political parties.

The effect for Wisconsin judges and candidates is that SCR 60.06(2)(b)2 & 3 are also constitutional.

SCR 60.06(2)(b)2 provides that no judge or judicial candidate may “Participate in the affairs, caucuses, promotions, platforms, endorsements, conventions, or activities of a political party or of a candidate for partisan office.”

Subsection (2)(b)3 provides that judges and judicial candidates may not “Make or solicit financial or other contributions in support of a political party’s causes or candidates.”

Upholding the bans, the court analogized them to the Hatch Act, which limits the ability of federal employees to engage in politics.

Judge Frank H. Easterbrook wrote for the court, “judges no less than FBI agents must be seen as impartial if judicial decisions are to be accepted by the public, and participation in politics undermines the appearance of impartiality.”

The court added, “states have a compelling interest in ‘preventing judges from becoming party bosses or power-brokers’, something that would undermine actual impartiality, as well as its appearance (emphasis in original; cite omitted).”

The court also noted that the rules governing federal judges prohibit them from endorsing political candidates or participating in fundraising.

Finally, the court found the availability of judicial recusal in cases involving favored political candidates is not an option that saves the rules, concluding, “the politician-judge will be disqualified so often that he will have the equivalent of a paid vacation, while other judges must work extra to protect litigants’ entitlement to expeditious decisions.”

The judge who brought the case also challenged Indiana’s “commits clause,” which states that judges shall not make commitments inconsistent with the impartial performance of judicial duties, but the court found that the challenge was not ripe for adjudication.

David Ziemer can be reached at [email protected]

Case analysis

Although the court did not address the constitutionality of the Code’s “commits clause,” the opinion effectively immunizes Wisconsin’s version of the clause, SCR 60.06(3)(b), from a facial attack.

It also sheds light on what judicial speech a state can and cannot prohibit under commits clauses.

As examples of improper speech, the court posited statements that the judge would issue a search warrant whenever the police ask for one, or to rule in favor of the litigant whose income is lower, or to award damages against drug companies, regardless of whether or not they are negligent.

As examples of permissible speech, the court cited a number of examples: “tough on crime” or “tough on drug companies”; “I would have joined Justice White’s dissent in Roe”; “the death penalty should be treated as cruel and unusual punishment”; “I am a textualist and will not resort to legislative history”; or “I am a progressive who will use a living-constitution approach.”

The court remarked, “Judges who have announced these views, on or off the bench sit every day without being thought to have abandoned impartiality.”

“A judge who promises to ignore the facts and the law to pursue his (or his constituents’) ideas about wise policy is problematic in a way that a judge who has announced considered views on legal subjects is not,” the court observed. “The commits clauses condemn the former and allow the latter.”