By Joe Forward, Legal Writer, State Bar of Wisconsin
Aug. 31, 2010 – A majority of judges for the U.S. Court of Appeals for the Seventh Circuit today denied Milwaukee County Circuit Court Judge John Siefert’s petition for rehearing en banc to consider whether, under Wisconsin rules, a judicial candidate may announce political party membership, endorse partisan candidates, or personally solicit campaign contributions.
In Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), decided in June, the Seventh Circuit Court of Appeals ruled that a Wisconsin judge or judicial candidate may announce political party membership, but cannot endorse partisan candidates or personally solicit campaign contributions. Judge Siefert petitioned for en banc review.
Judge Siefert argued that Wisconsin Supreme Court Rules 60.06(2)(b)1, 60.06(2)(b)4, and 60.06(4), which prohibited him from listing his affiliation with the Democratic Party, endorsing partisan candidates for office and soliciting contributions for his upcoming 2011 campaign, unconstitutionally infringed upon his free speech rights.
He filed suit against the Wisconsin Judicial Commission in 2008, and the U.S. District Court for the Western District of Wisconsin held that all three provisions were unconstitutional.
The Judicial Commission appealed, a decision backed by the State Bar of Wisconsin, which supports an independent judiciary and continuing support for existing regulations as established by the Judicial Commission.
The appeals court concluded that the state did not have a compelling state interest in preventing state judicial candidates “from announcing their views on legal or political issues,” and thus held that SCR 60.06(2)(b)1, the provision that restricted judges from doing so, was unconstitutional.
But the court also held that Wisconsin has an interest in “preventing its judges’ participation in politics unrelated to their campaigns,” preserving “impartiality and preventing corruption,” and an “obligation to prevent the appearance of bias from creeping into its judiciary.”
Thus, it held that rules prohibiting the endorsement of partisan candidates or personally soliciting campaign contributions did not unconstitutionally infringe upon free speech rights.
In its order rejecting rehearing en banc, four judges dissented. Judge Ilana Rovner, the lone dissenter in the previous appeal, wrote for the dissent, arguing that “Siefert departs from the path carved by the Supreme Court and makes us an outlier among our sister circuits.”
Judge Rovner argued that in Siefert, 608 F.3d 974 (7th Cir. 2010), the majority applied a more relaxed balancing test to decide whether a judge or judicial candidate may publically endorse or speak on behalf of a partisan candidate. It should have applied a strict scrutiny test, she argued.
Related Articles:
Federal appeals court says Wisconsin judges can announce political party membership – (June 15, 2010)
Attorney General will appeal Siefert determination – (Mar. 19, 2009)
Judge Crabb rules in Siefert – judges can join political parties – (Feb. 19, 2009)
Board takes action on Siefert v. Alexander in appellate court – (Inside the Bar, Oct. 2008)
Board discusses Attorney General’s request to support Siefert, among other actions – (Inside the Bar, Aug. 2008)
