Last Tuesday, the United States Supreme Court heard arguments on whether the provision of the Minnesota Code of Judicial Conduct that prohibits a candidate for elective judicial office from “announc[ing] his or her views on disputed legal or political issues” unconstitutionally impinges on the freedom of speech as guaranteed by the First and Fourteenth Amendments of the United States Constitution. The Court’s decision will reach far beyond Minnesota. Most states, including Florida, have similar rules restricting what judicial candidates can publically say regarding issues likely to come before them as judges.
The petitioner is a 46-year-old lawyer who has unsuccessfully run for a seat on the Minnesota Supreme Court three times since 1996. He sued in federal court in 1998, claiming that the “Announce Clause” found in Minnesota’s Code of Judicial Conduct unconstitutionally prevented him from announcing to voters his views on disputed legal and political issues. The district court rejected his contention, finding that the Announce Clause “serves the state’s compelling interest in maintaining the actual and apparent integrity of its judiciary, while not unnecessarily curtailing protected speech.” The Eighth Circuit affirmed, and noted that under the Announce Clause numerous matters can be the subject of public disclosure by judicial candidates, including “general discussions of case law or a candidate’s judicial philosophy.”
Minnesota’s Announce Clause was patterned on the ABA Model Code of Judicial Conduct adopted in 1972. In 1990, the ABA amended its Model Code and replaced the Announce Clause with a “Commitments Clause” that forbids judicial candidates from making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” Florida’s judicial code is based on the 1990 Commitments Clause. See Fla. Code of Jud. Conduct Canon 7A(3)(d)(ii).
News reports following oral arguments indicated that the Justices were sympathetic to the petitioner. I’ve never been very good at predicting how the United States Supreme Court will rule on a particular case, and I won’t go on record as trying here. But I don’t mind sharing my thoughts on how I believe it should rule.
The Supreme Court should rule to safeguard important historical distinctions between judges and other elected officials. The Court should recognize that our constitutional system of government depends in no small part on the right of the public to a judicial system in which it has respect and confidence. The appearance that a judge has predetermined a case runs counter to the public’s expectation of fairness and objectivity in the judicial system. More than anything, it is the perception of fairness and objectivity that sustains the independence of the judiciary.
The Supreme Court is, of course, free to flatly declare the Announce Clause unconstitutional, to hold that it is narrowly tailored to serve a compelling state interest of preserving the independence and impartiality of the judiciary, or to construe it somewhere in between.
In its brief before the Supreme Court, the State of Minnesota deftly pointed out that each of the current Justices took the position during their Senate confirmation hearings that it would be improper for a judicial nominee to publically state a position on issues likely to come before the Court. Whether the Justices continue to adhere to this judicial philosophy remains to be seen. Let’s hope that the Supreme Court strikes the proper balance between the free speech and political interests of campaigning judges and the due process interests of citizens who appear before those judges. Whatever the outcome, it surely will decide the tenor of state court elections for years to come.