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Monday, June 14, 2010

Ind. Decisions - 7th Circuit rules on Wisconsin issues re party affiliation, public endorsement, and personal solicitation re candidates for trial court election [Updated]

From The Honorable John Siefert v. Wisconsin Judicial Commission, a 45-page 2-1 opinion by Judge Tinder (Judge Rovner's dissent begins on p. 33):

The plaintiff, John Siefert, is an elected Wisconsin circuit court judge in Milwaukee County. He would like to state his affiliation with the Democratic Party, endorse partisan candidates for office, and personally solicit contributions for his next election campaign, but is concerned because these activities are prohibited by the Wisconsin Code of Judicial Conduct. Rather than violate the code and face discipline, Siefert filed suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the members of the Wisconsin Judicial Commission, the body that enforces the Code of Judicial Conduct. After considering the parties’ cross-motions for summary judgment, the district court granted Siefert’s motion, declared the rules prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates, and personally soliciting contributions unconstitutional, and enjoined the defendants from enforcing these rules against Siefert. The Commission appeals. We affirm the district court’s holding on the partisan affiliation ban but reverse the district court’s ruling that the bans on endorsing partisan candidates and personally soliciting contributions are unconstitutional. * * *

For the foregoing reasons, we AFFIRM the district court’s judgment in favor of Siefert with respect to the party affiliation ban, SCR 60.06(2)(b)1, but REVERSE the district court’s judgment with respect to the public endorsement and personal solicitation bans, SCR 60.06(2)(b)4 and SCR 60.06(4).

Rovner, Circuit Judge, dissenting in part. Protecting judicial integrity is a government interest of highest magnitude, as is protecting the rights guaranteed by the First Amendment. Reconciling these two competing interests is no small feat, and when evaluating the party membership restrictions in Section II.A and the personal solicitation restriction in Section II.C, I believe the majority successfully navigates the competing concerns. As for the ban on endorsements of partisan candidates, the majority and I begin at the same starting point—with the notion that endorsements of candidates in political elections are troubling and have the potential to compromise judicial impartiality. I part ways with the majority, however, where it applies the balancing test from Pickering and Connick to the endorsement ban. Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Ill., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 142 (1983). Because I believe this is the wrong test to apply, I respectfully dissent. * * *

Although I disagree with the majority about the proper test to apply, it is likely that under different circumstances our outcome would nevertheless be the same and I would find myself concurring in the result. My dissent stems entirely from the unique situation presented here. Wisconsin has opted to elect judges in popular elections and has further mired those judges in that political process by allowing them to make nonpartisan endorsements. Endorsements undermine the integrity of the judiciary regardless of whether they focus on partisan or non-partisan races. Once Wisconsin greased the slope for non-partisan endorsements, it should not have been surprised that partisan endorsements could come sliding after. Wisconsin has failed to demonstrate that its endorsement ban is narrowly tailored to prevent the harm it asserts.

[Updated at 4:00 PM] Here is what the Milwaukee Journal Sentinel isreporting about the opinion:
Madison — Wisconsin judges can join political parties but cannot endorse partisan candidates or directly solicit campaign donations, a federal appeals court ruled Monday.

State judges were barred from joining political parties starting in 1968, though in practice judges have distanced themselves from parties for more than a century. But last year, U.S. District Judge Barbara Crabb overturned the ban on First Amendment grounds.

A three-judge panel of the 7th Circuit Court of Appeals on Monday agreed with Crabb that judges can join parties but overruled her on other aspects of the case. Crabb had ruled judges could endorse partisan candidates and make direct appeals for campaign cash, but the appeals court said the state's ban on those practices is acceptable.

The appeals court decision and Crabb's earlier ruling mean judges can join political parties and tell voters about it. But judges will not have their partisan ties printed on ballots.

Posted by Marcia Oddi on June 14, 2010 12:22 PM
Posted to Ind. (7th Cir.) Decisions