The Seventh Circuit has denied (PDF) Milwaukee County Circuit Court Judge John Siefert’s request for rehearing en banc on his lawsuit challenging portions of Wisconsin’s Code of Judicial Conduct.
But Judge Siefert said in an interview he intends to seek review in the United States Supreme Court.
“I think the dissent indicates very clearly the split in the circuits on what the standard of review is for restrictions on judicial campaigns,” Siefert said in an interview.
On June 14 of this year, a three-judge panel agreed (PDF) with Siefert that Wisconsin’s prohibition on judges belonging to political parties, SCR 60.06(2)(b)1, was unconstitutional. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010).
However, the panel upheld the constitutionality of SCR 60.06(2)(b)4, which bars judges from publicly endorsing or speaking on behalf of any partisan candidate or platform.
It also upheld SCR 60.06(4), which bars judges from personally soliciting campaign contributions.
Siefert sought en banc review with respect to personal solicitation, but on Aug. 31, the court denied the petition. Judge Ilana Diamond Rovner, who was on the original panel and dissented, also dissented from the denial of en banc review, along with Judges Diane Wood, Ann Claire Williams, and David Hamilton.
Judge Diane S. Sykes did not participate.
The dissent from rehearing notes that every circuit to have evaluated the First Amendment rights of judges and judicial candidates has applied strict scrutiny. Wersal v. Sexton, No. 09-1578, 2010 WL 2945171 (8th Cir. Jul. 29, 2010); Carey v. Wolnitzek, Nos. 08-6468, 08-6538, 2010 WL 2771866 (6th Cir. 2010); Republican Party v. White, 416 F.3d 738, 749-50 (8th Cir. 2005); Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002); and Stretton v. Disciplinary Bd., 944 F.2d 137, 141 & n.1 (3d Cir. 1991).
Rovner complained that, in contrast, the majority opinion in Siefert applied “a more relaxed balancing test not heretofore applied to the First Amendment rights of judges and judicial candidates.”
Rovner wrote, “Our decision in Siefert departs from the path carved by the Supreme Court and makes us an outlier among our sister circuits.”
Siefert said the Supreme Court needs to take his case to resolve the split.
He also said that, now that the Wisconsin Legislature has created a public financing for candidates for the Supreme Court, the ban on personal solicitation is particularly inappropriate.
To obtain public financing of $500,000 from the State, a candidate must receive 1,000 contributions from individuals, all ranging from between $5 and $15. “I think the legislative intent is that Supreme Court candidates can solicit tiny $5-$15 contributions personally, rather than use a cumbersome committee,” Siefert said. “Such small contributions can’t raise any inference of bias, where the contributor has no case pending before the court.”
Siefert also said there is no legitimate rationale for allowing contributors to make large contributions to a Supreme Court justice’s campaign, even though it has a case pending before the court, while prohibiting a judge from personally asking contributors with no case pending for $5.
David Ziemer can be reached at firstname.lastname@example.org.