Wisconsin judges can list political party affiliation but cannot endorse partisan candidates or personally solicit campaign contributions

By Joe Forward, Legal Writer, State Bar of Wisconsin

June 15, 2010 – The U.S. Court of Appeals for the Seventh Circuit on June 14 held that a Wisconsin judge or judicial candidate may announce political party membership, but cannot endorse partisan candidates or personally solicit campaign contributions.

In Siefert v. Alexander et al., No. 09-1713, the court addressed the free speech rights of elected judges and judicial candidates under Wisconsin’s Code of Judicial Conduct after a challenge by Milwaukee County Circuit Court Judge John Siefert.

Judge Siefert sought to list his affiliation with the Democratic Party, endorse partisan candidates for office and solicit contributions for his upcoming 2011 campaign.

Provisions of Wisconsin’s Code of Judicial Conduct – Supreme Court Rules 60.06(2)(b)1, 60.06(2)(b)4, and 60.06(4) – prohibit a judge from engaging in these activities.

In June of 2008, Judge Siefert challenged the constitutionality of the provisions on free speech grounds by filing suit against the Wisconsin Judicial Commission in U.S. District Court for the Western District of Wisconsin. That court held that all three provisions were unconstitutional.

The Judicial Commission appealed. The State Bar of Wisconsin urged appeal, and considered filing an amicus brief to voice strong support for an independent judiciary and continuing support for existing regulations as established by the Judicial Commission, but did not.

The 7^th Circuit Court of Appeals – in an opinion written by Judge John Daniel Tinder – agreed that SCR 60.06(2)(b)1, which prohibits a judge or judicial candidate from listing political party membership, is unconstitutional.

But the court held that prohibiting the endorsement of party candidates or personally soliciting campaign contributions under SCR 60.06(2)(b)4 and SCR 60.06(4) is constitutional.

SCR 60.06(2)(b)1 – party membership

SCR 60.06(2)(b)1 prohibits a judge or candidate for judicial office from being a member of any political party. Siefert sought to list his affiliation with the Democratic Party.

In determining the constitutionality of 60.06(2)(b)1, the appeals court analyzed Republican Party of Minn. V. White (White I), 536 U.S. 765 (2002). In White I, the court struck down a rule that prohibited judges and judicial candidates from announcing their views on disputed legal and political issues.

Siefert argued that under White I, the Judicial Commission’s party membership rule must meet a strict scrutiny test. The Judicial Commission argued that a less stringent standard applied.

But the court stated that “the partisan affiliation ban acts to prohibit [Siefert’s] speech on both his political views and his qualifications for office. Therefore, the clause is a content-based restriction on speech subject to strict scrutiny.”

To survive strict scrutiny, the rule “must be narrowly tailored to serve a compelling state interest,” the court explained.

The court concluded that under White I, the state does not have a compelling state interest in preventing state candidates “from announcing their views on legal or political issues.”

Thus, the appeals court affirmed the district court judgment that Wisconsin’s party affiliation rule unconstitutionally infringed upon Siefert’s free speech rights.

SCR 60.06(2)(b)4 – endorsement of partisan candidates

SCR 60.06(2)(b)4 prohibits judges and judicial candidates from publicly endorsing or speaking on behalf of any partisan candidate or platform. Siefert sought to endorse candidates in a partisan election.

Siefert argued that, like party membership, “the choice to endorse another candidate is simply a means of expressing his political views” and thus strict scrutiny applies. But the court concluded that a rule forbidding public endorsement is not the same as an impermissible rule against party affiliation.

“An endorsement is a different form of speech,” the court noted. Thus, the court explained, a balancing approach, not a strict scrutiny test, “is the appropriate method of evaluating the endorsement rule.”

The court applied Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563 (1968) in determining “the balance between the state’s interest and the judge’s.”

The court held: “Given that Wisconsin’s interest in preventing its judges’ participation in politics unrelated to their campaigns is justified based on its obligations under the Due Process Clause, as well on its obligation to prevent the appearance of bias from creeping into its judiciary, and that the endorsement restriction does not infringe on a judge’s ability to inform the electorate of his qualifications and beliefs, the regulation is permissible.”

The court noted that its holding is limited to bans on endorsements in partisan elections. It does not apply to nonpartisan elections, the court explained.

Thus, the appeals court reversed the district court judgment in holding that Wisconsin’s endorsement rule is constitutional.

SCR 60.06(4) – personal solicitation of campaign contributions

SCR 60.06(4) prohibits judges or judicial candidates from personally soliciting or accepting campaign contributions. Siefert sought to solicit contributions for his 2011 campaign.

As a campaign finance regulation, the court explained, “it is reviewed under the framework set forth in Buckley v. Valeo, 424 U.S. 1 (1976).” Under Buckley, “restrictions on spending by candidates and parties are reviewed with strict scrutiny, while restrictions on contributions are reviewed under less rigorous ‘closely drawn’ scrutiny.”

The court concluded that the solicitation ban “is drawn closely enough to the state’s interest in preserving impartiality and preventing corruption to be constitutional” and “does not impair more speech than is necessary.”

The court also noted that a less restrictive means of restricting personal solicitation of contributions is not available. The reality of judicial elections, the court wrote, is that “judicial campaigns are often largely funded by lawyers, many of whom will appear before the candidate who wins.”

Thus, the appeals court reversed the district court judgment in holding that Wisconsin’s personal solicitation rule is constitutional.

Judge Rovner dissent

Judge Ilana Rovner dissented with respect to the endorsement ban. While noting that “endorsements of candidates in political elections are troubling and have the potential to compromise judicial impartiality,” she thought strict scrutiny applied, not a balancing test.

“Laws and regulations that restrict speech on the basis of content are subject to the high hurdle of the strict scrutiny test,” Rovner wrote. “There could be no clearer example of a restriction that is both content-based and that burdens speech regarding qualifications for office.”

Under a strict scrutiny test, Judge Rovner concluded, “Wisconsin has failed to demonstrate that its endorsement ban is narrowly tailored to prevent the harm it asserts.”