in the supreme court of the united states - acslaw.org respondent.pdfin march 2001, arthur banes...
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No. 07-7965
In The
Supreme Court of the United States
OCTOBER TERM, 2007
________________
Gertrude C. Chase, Chair, New Columbus Election Board, et. al.,
Petitioners,
v.
New Columbus Democratic Party, et. al.,
Respondents.
_________________
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
_________________
BRIEF FOR RESPONDENT
___________________
Team Number 3944
Counsel for Respondent
i
QUESTIONS PRESENTED
1. Whether New Columbus’ rule precluding judges and judicial
candidates from personally soliciting campaign
contributions is inconsistent with the First Amendment
insofar as it bars them from (1) signing letters requesting
campaign contributions, and (2) making personal appeals for
campaign contributions to “large groups” of individuals.
2. Whether New Columbus’ restrictions on certain partisan
political activities of judges and judicial candidates
violate the First Amendment to the extent that they bar
judges and judicial candidates from (1) attending and
speaking at political party gatherings, (2) identifying
themselves as members of a political party and (3) seeking,
accepting or using political party endorsements.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED....................................... i
TABLE OF CONTENTS........................................ ii
TABLE OF AUTHORITIES..................................... iv
OPINIONS AND ORDER........................................ 1
CONSTITUTIONAL AND STATUTORY PROVISIONS................... 1
STATEMENT OF THE CASE..................................... 1
Mr. Crandell First Runs For Justice.................. 1
Mr. Crandell Tries Again............................. 2
The Election Board’s Threatening Response............ 3
Election Board Opens An Investigation................ 4
Proceedings Below.................................... 5
SUMMARY OF ARGUMENT....................................... 6
ARGUMENT.................................................. 8
I. STRICT SCRUTINY APPLIES BECAUSE THE RESTRICTIONS
IMPLICATE FUNDAMENTAL FIRST AMENDMENT FREEDOMS OF
POLITICAL SPEECH, EXPRESSION, AND ASSOCIATION........ 8
A. The Restrictions Burden Core Political Speech
And Expression.................................. 9
B. The Restrictions Are Also Content-Based
Restrictions................................... 12
iii
II. THE SOLICITATION AND POLITICAL ACTIVITIES RESTRICTIONS
VIOLATE THE FIRST AMENDMENT BECAUSE THEY ARE NOT
NARROWLY TAILORED TO SERVE A COMPELLING STATE
INTEREST............................................ 14
A. New Columbus’ Advanced Interest Is Not
Compelling..................................... 15
B. Even If The Interest Is Compelling, The
Restrictions Are Not Narrowly Tailored Because
They Are Disproportionate To The Advanced
Interest....................................... 18
1. The restrictions are both over- and under-
inclusive to achieve New Columbus’
advanced interest......................... 18
2. Alternatively, the restrictions are not
the least restrictive means to achieve
New Columbus’ ends........................ 22
CONCLUSION............................................... 25
iv
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES
Anderson v. Celebrezze,
460 U.S. 780 (1983) .................................... 11
Ark. Writers’ Project, Inc. v. Ragland,
481 U.S. 221 (1987) .................................... 12
Austin v. Mich. Chamber of Commerce,
494 U.S. 652 (1990) ............................. 9, 10, 18
Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) .................................... 22
Brown v. Hartlage,
456 U.S. 45 (1982) ..................................... 18
Buckley v. Valeo,
424 U.S. 1 (1976) .............................. 10, 19, 24
Burson v. Freeman,
504 U.S. 191 (1992) .................................... 15
Carey v. Brown,
447 U.S. 455 (1980) ..................................... 9
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) .................................... 15
Chaplinsky v. New Hampshire,
315 U.S. 569 (1942) ..................................... 8
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .................................... 18
Cousins v. Wigoda,
419 US 477 (1975) ....................................... 9
Democratic Party of U.S. v. Wisconsin ex rel. La Follette,
450 U.S. 107 (1981) ................................ 10, 12
Eu v. San Francisco County Democratic Cent. Comm.,
489 U.S. 214 (1989) ................................ passim
v
F.C.C. v. League of Women Voters of Ca.,
468 U.S. 364 (1984) .................................... 22
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765 (1978) .................................... 18
Florida Bar v. Went For It, Inc.,
515 U.S. 618 (1995) .................................... 15
Garrison v. Louisiana,
379 U.S. 64 (1964) ...................................... 8
Lorillard Tobacco Co. v. Reilly,
533 U.S. 525 (2001) .................................... 15
McConnell v. Fed. Election Comm’n,
540 U.S. 93 (2003) ..................................... 10
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) .................................. 8, 9
Meyers v. Grant,
486 U.S. 414 (1988) ..................................... 9
NAACP v. Button,
371 U.S. 415 (1963) .................................... 15
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ..................................... 8
Police Dep’t of Chi. v. Mosley,
408 U.S. 92 (1972) ..................................... 12
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ................................ 10, 13
Randall v. Sorrell,
126 S.Ct. 24 (2006) .................................... 21
Renne v. Geary,
501 U.S. 312 (1991) ................................ 11, 16
Reno v. Flores,
507 U.S. 292 (1993) .................................... 15
vi
Republican Party of Minn. v. White,
536 U.S. 765 (2002) ................................ passim
Sherbert v. Verner,
374 U.S. 398 (1963) .................................... 15
Simon & Schuster v. N.Y. Crime Victims Bd.,
502 U.S. 105 (1991) ................................ 12, 19
Thompson v. W. States Med. Ctr.,
535 U.S. 357 (2002) .................................... 22
Tumey v. Ohio,
273 U.S. 510 (1927) .................................... 22
Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622 (1994) ..................................... 9
United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803 (2000) ..................................... 8
Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc.
425 U.S. 748 (1976) .................................... 11
Wisconsin v. Yoder,
406 U.S. 205 (1972) .................................... 15
UNITED STATES COURT OF APPEALS CASES
Family Trust Foundation of Kentucky v. Kentucky Judicial
Conduct Com’n,
388 F.3d 224 (6th Cir. 2004) ........................... 22
Weaver v. Bonner,
309 F.3d 1312 (11th Cir. 2002) ......................... 13
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I...................................... 1
SECONDARY AUTHORITIES
2 Cong. Ch. 36; 1 Stat. 275.............................. 23
Alexander Hamilton, The Federalist No. 78................ 24
vii
Erwin Chemerinsky, The First Amendment: When the
Government Must Make Content-Based Choices,
42 CLEV. ST. L. REV. 199, 201 (1994)..................... 12
Mary Eileen Weicher, The Expansion of the First Amendment
in Judicial Elections: Another Cause for Reform,
38 LOY. U. CHI. L.J. 833 (2007) ......................... 23
Sandra Day O’Connor, Editorial, Justice For Sale: How
Special-Interest Money Threatens The Integrity of
the Courts,
WALL ST. J., Nov. 15, 2007 .............................. 24
1
OPINIONS AND ORDER
The opinion of the United States Court of Appeals for the
Fourteenth Circuit is reproduced at R. 6-39. The Joint Judicial
Advisory Committee Final Notes to the Supreme Court of New
Columbus is reproduced at R. 40.
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case involves questions relating to the
First Amendment’s protection of political speech, expression,
and association. U.S. Const. amend. I. This case also presents
issues under the New Columbus Code of Judicial Conduct, Cannons
1-7. The full text of the First Amendment and these cannons are
set forth at Resp. App. A-B.
STATEMENT OF THE CASE
Mr. Crandell First Runs For Justice
In March 2001, Arthur Banes Crandell first declared himself
a candidate for Associate Justice of the New Columbus Supreme
Court. (R. 9.) At that time, Mr. Crandell was an active member
of the New Columbus Bar for nine years. (R. 8.) Like many
other New Columbus residents and Americans, Mr. Crandell was
also an active member of other organizations, including the New
Columbus Chapter of the National Association for the Advancement
of Colored People (NAACP) and the New Columbus Democratic Party.
(R. 8.) Mr. Crandell also engaged the community by exercising
2
his First Amendment right and civic duty in volunteering for
state and local elections. (R. 8.) Mr. Crandell’s interest in
politics even resulted in a one year part-time job in 1997 as a
media consultant and public relations director for a state
senate campaign. (R. 9.)
Shortly after Mr. Crandell declared his judicial candidacy,
his opponent filed a complaint with the New Columbus Election
Board alleging Mr. Crandell was in violation of Cannons 1-3 of
the New Columbus Code of Judicial Conduct (referred to as “the
solicitation and political activities restrictions”). (R. 9.)
Specifically, his opponent claimed that Mr. Crandell violated
the Canons by seeking public affiliation, association, and
endorsement of the New Columbus Democratic Party and personally
soliciting campaign funds. (R. 9.) The New Columbus Election
Board immediately began investigating Mr. Crandell’s activities,
and, as a result, Mr. Crandell withdrew his candidacy. (R. 9.)
The Election Board then halted its investigation, leaving the
claims unresolved and deeming the matter moot. (R. 9.)
Mr. Crandell Tries Again
Despite these previous difficulties, Mr. Crandell decided
to run a second time for Associate Justice in March 2007.
(R. 9.) In preparation for any similar opponent challenges,
Mr. Crandell sought an Election Board advisory opinion on the
enforceability of certain Judicial Code provisions relating to
3
campaign activities he wished to engage in as a judicial
candidate including: 1) speaking at political organization
gatherings; 2) pursuing and using endorsements from political
party organizations; 3) soliciting contributions from
individuals at political organization events; and 4) personally
pursuing campaign contributions by letter or in person from
groups of 50 or more individuals hosted by state and local
political parties. (R. 10.) Mr. Crandell also maintained that
the solicitation and political activities restrictions
constituted impermissible abridgments to his freedom of speech.
(R. 9-10.)
The Election Board’s Threatening Response
In response to Mr. Crandell’s request, the Election Board
issued an advisory opinion on April 16, 2007, declaring the
solicitation and political activities restrictions remain in
effect and are enforceable. (R. 10) The Election Board further
delineated that the activities described by Mr. Crandell would
likely violate the New Columbus State Code.1 (R. 10) In
relevant part, the Election Board stated:
“[A]lso, in light of the nature of your request
affirmatively notifying this Board that you plan
to seek election to the open seat on the New
Columbus Supreme Court, we further advise that
this office closely monitors the election-related
activities of all candidates for state judicial
1 See Appendix B for the full text New Columbus Code of Judicial Conduct.
4
office in order to ensure compliance with
applicable state law.” (R. 10)
While taking heed of this warning, Mr. Crandell pressed on,
assembling the requisite campaign committee composed of a former
State Senator and two prominent lawyers. (R. 10.) This
committee managed most of the fundraising, communications and
other campaign functions as required by the New Columbus Code of
Judicial Conduct. (R. 11.) During this nascent campaign
period, Mr. Crandell sought and received an endorsement from the
New Columbus Democratic Party. (R. 11) Although Mr. Crandell
signed solicitation letters to numerous individuals, the
Committee maintained the responsibility for mailing these
letters. (R. 11.) Moreover, the Committee further insulated
Mr. Crandell from viewing donor lists and learning the identity
of contributors in accordance with Cannon 3. (R. 11.) While at
“meet-the-candidate” events organized by the local and state
Democratic Party, Mr. Crandell made appeals for campaign
contributions to the entire audience, but refrained from
directly soliciting any individuals one-on-one. (R. 11.)
Election Board Opens An Investigation
On August 1, 2007, the Election Board informed Mr. Crandell
of another investigation into his 2007 campaign-related
activities. (R. 11.) The Election Board indicated an anonymous
source alleged Mr. Crandell had violated of Canons 1-3 by
5
engaging in prohibited solicitation and political activities.
(R. 11.) The letter provided Mr. Crandell only two weeks to
produce copies of all fundraising letters and a summary report
of all endorsements received. (R. 11.) Mr. Crandell complied
with the request; however, shortly thereafter, Mr. Crandell,
along with the New Columbus Democratic Party, filed suit against
the New Columbus Election Board challenging the
constitutionality of the Judicial Code of Conduct. (R. 11-12.)
The suit specifically named Gertrude C. Chase in her
capacity as Chair of the Election Board, Neil G. Katzen in his
capacity as Director of the New Columbus Office of Attorney
Ethics, and Dwayne F. Pierce in his capacity as Chair of the New
Columbus Office of Attorney Ethics. (R. 12.) The Democratic
Party and Mr. Crandell sought a declaratory and injunctive
relief against the enforcement of the solicitation and political
activities restrictions in Judicial Canons 1-3 claiming that
such restrictions violated judicial candidate’s First Amendment
right of freedom of political speech, association, and
expression. (R. 12.)
Proceedings Below
After an expedited briefing and hearing, on September 1,
2007, the district court issued a declaratory judgment upholding
the speech restrictions as satisfying strict scrutiny analysis.
(R. 12.) The district court determined the restrictions were
6
narrowly tailored to New Columbus’ compelling interest of an
independent and impartial judiciary. (R. 12-13.) The district
court then granted Mr. Crandell’s motion for a stay pending an
appeal. (R. 13.)
The Democratic Party and Mr. Crandell appealed their case
to the United States Court of Appeals for the Fourteenth
Circuit. (R. 13.) The court reversed the district court and
held that the solicitation and political activities restrictions
failed strict scrutiny. (R. 26.) While the court determined
that impartiality and judicial independence is a compelling
interest, the court deemed the solicitation and political
activities restrictions were not narrowly tailored. (R. 23,
26.) The court found that the political activities and
solicitation restrictions are under-inclusive, causing them to
fail the narrow tailoring test. (R. 23, 26.) The court further
reasoned that judicial recusal is a less restriction means
accomplishing impartiality and judicial independence. (R. 26.)
SUMMARY OF ARGUMENT
The court of appeals correctly held that the political
activities and solicitation restrictions are unconstitutional
under the First Amendment. Since the restrictions implicate
core political speech and are content-based restrictions, the
strictest scrutiny must apply. (Part I.) The restrictions fail
7
to survive strict scrutiny because they are not narrowly
tailored to serve a compelling state interest. (Part II.)
First, the court of appeals properly applied strict
scrutiny because the restrictions involved core political speech
directly affecting campaign and election activities. (Part
I.A.) Strict Scrutiny is also appropriate because the
restrictions are content-based by prohibiting speech based on
subject matter and viewpoint. (Part I.B.)
Second, the court of appeals rightly held that the
restrictions are not narrowly tailored to serve New Columbus’
interest of impartiality and maintaining judicial independence.
Even though the court of appeals reached the proper holding, New
Columbus’ fails to present a compelling state interest because
the means adopted by New Columbus do not necessarily accomplish
the desired ends. (Part II.A.)
Third, the court of appeals accurately determined that the
restrictions are not narrow tailored because they are under-
inclusive, failing to regulate all activities that jeopardize
New Columbus’ advanced interest. (Part II.B.1.) Such
restrictions are even over-inclusive to the extent that ill-
defined terms, such as political organizations and
contributions, could over-regulate activities beyond a state
interest. (Part II.B.1.) Finally, the court of appeals
appropriately determined that less restrictive means of
8
maintaining impartiality and judicial independence exist, such
as judicial recusal. (Part II.B.2.)
ARGUMENT
I. STRICT SCRUTINY APPLIES BECAUSE THE RESTRICTIONS IMPLICATE FUNDAMENTAL FIRST AMENDMENT FREEDOMS OF POLITICAL SPEECH,
EXPRESSION, AND POLITICAL ASSOCIATION.
Political speech, expression, and association are inherent
to our First Amendment freedoms because they “embody our
‘profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open....’”
Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).2 As Justice
Brennan stated, “speech concerning public affairs is more than
self-expression; it is the essence of self-government.”
Garrison, 379 U.S. at 74-75. Only in very limited circumstances
may a state restrict these fundamental freedoms. Chaplinsky v.
New Hampshire, 315 U.S. 569, 572 (1942). Even then, a state
bears the burden of proving that its actions are constitutional.
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816
(2000).
To determine whether such acts are constitutional, this
Court has consistently applied strict scrutiny to content-based
restrictions or burdens to core political speech. See, e.g.,
2 It is well recognized that First Amendment protections apply to the states
through the Fourteenth Amendment. See, e.g., McIntyre v. Ohio Elections
Com’n, 514 U.S. 334, 336 (1995).
9
Republican Party of Minn. v. White, 536 U.S. 765, 774, 781
(2002); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347
(1995); Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994);
Carey v. Brown, 447 U.S. 455, 462 (1980). Strict scrutiny
requires that a restriction be: 1) narrowly tailored, to serve
2) a compelling state interest. White, 536 U.S. at 755; Eu v.
San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222
(1989). Since New Columbus’ restrictions implicate core
political speech and are content-based, any argument that a
lesser standard of scrutiny should apply is without merit.
A. The Restrictions Burden Core Political Speech And Expression.
New Columbus’ solicitation and political activities
restrictions directly affect campaign and election activities
that are core political speech. This Court has defined core
political speech as “…interactive communication concerning
political change.” Meyers v. Grant, 486 U.S. 414, 422 (1988).
It includes both conduct and words intended to demonstrate
support for a candidate or an issue. White, 536 U.S. at 774, 781
(finding speech and debate as core speech); Cousins v. Wigoda,
419 US 477, 487 (1975) (finding association as core speech);
Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 657 (1990)
(finding campaign contributions as core speech); Eu, 489 U.S. at
222 (finding endorsements as core speech.); Democratic Party of
10
U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981)
(finding identification with organizations as core speech). Core
political speech is the “highest, most protected” form of
speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 422 (1992).
As such, the proper test for restrictions to core political
speech is strict scrutiny. White, 536 U.S. at 774.
The solicitation and political activities restrictions both
implicate core political speech. In reviewing a prohibition on
corporate campaign expenditures, the Austin Court recognized
that funds expended for a candidate’s campaign are core
political speech and, thus, applied strict scrutiny. 494 U.S.
at 657. Like Austin’s corporate campaign contribution
restriction, New Columbus’ solicitation restrictions directly
affect voter campaign contributions triggering strict scrutiny.
Even the Buckley and McConnell Courts recognize that campaign
contributions are core political speech. Buckley v. Valeo, 424
U.S. 1, 15 (1976); McConnell v. Fed. Election Comm’n, 540 U.S.
93, 102-103 (2003). Although these courts arguably applied a
less than strict scrutiny standard, these cases are
distinguishable because Buckley and McConnell addressed
contribution limits instead of a judicial candidate’s ability to
make personal appeals for campaign contributions. See generally
Buckley, 424 U.S. 1; McConnell, 540 U.S. 93.
11
Each of the political activities restrictions also targets
core political speech. For instance, the “speak and attend
restriction” prohibits interactive communication with certain
voters. In fact, it restricts a judicial candidate from
speaking on legal and political issues to certain organizations,
the type of activity protected in White. Moreover, in
application, this restriction burdens political organization
members in engaging judicial candidates on those same issues.
See generally, Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) (finding that First
Amendment rights are reciprocal between the speaker and the
recipient); Anderson v. Celebrezze, 460 U.S. 780 (1983)
(recognizing laws affecting candidates have a correlative effect
on voters).
This Court has also found that endorsement restrictions
implicate core political speech. See Eu, 489 U.S. at 222; Renne
v. Geary, 501 U.S. 312, 122 (1991). Like the “speak and attend
restriction,” the “endorsement restriction” also prohibits
political organizations from interactively communicating their
support for and association with judicial candidates.
As identification with an organization is a necessary
corollary to association, the “identification restriction”
necessarily burdens a judicial candidate’s ability to associate
with political organizations. La Follette, 450 U.S. 107, 122
12
(1981) (“the freedom to associate for the advancement of
political beliefs necessarily presupposes the freedom to
identify the people who constitute the association.”). As a
result, this restriction effectively bans communicating views
through association with such organizations.
B. The Restrictions Are Also Content-Based Restrictions.
Additionally, New Columbus’ solicitation and political
activities restrictions trigger strict scrutiny because they
prohibit speech based on content and viewpoint. With few
exceptions, a state “has no power to restrict expression because
of its message, its ideas, its subject matter or its content.”
Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). If a
restriction is enacted on the basis of subject matter or
viewpoint, it is a content-based restriction. See Ark. Writers’
Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987); see also
Erwin Chemerinsky, The First Amendment: When the Government Must
Make Content-Based Choices, 42 CLEV. ST. L. REV. 199, 201 (1994).
To measure whether a restriction is content-based, this Court
has employed a compelling interest test derived from equal
protection analysis. Ragland, 481 U.S. at 231; Simon & Schuster
v. N.Y. Crime Victims Bd., 502 U.S. 105, 118 (1991). In
application, differential treatment of speech based on the
speaker or wholesale bans on subject matter are highly suspect
13
and strict scrutiny must apply. See White, 536 U.S. at 774;
R.A.V., 505 U.S. at 383-84.
The solicitation restrictions prohibit judicial candidates
from 1) signing letters requesting campaign contributions and 2)
making personal appeals for campaign contributions to “large
groups” of individuals. Candidates are consequently prevented
from speaking to donors or endorsers concerning a particular
subject matter: their contributions. See Weaver v. Bonner, 309
F.3d 1312,1322 (11th Cir. 2002)( recognizing that "candidates
are completely chilled from speaking to potential contributors
and endorsers about their potential contributions and
endorsements" and is, thus, a content-based restriction.) As
former Justice O'Connor acknowledged, even judicial election
campaigns "can require substantial funds." White, 536 U.S. at
789 (O’Connor, J., concurring). As such, the solicitation
restrictions mandate strict scrutiny because they stifle
judicial candidates' speech on the subject of campaign
contributions.
Although New Columbus allows a campaign committee to
solicit funds on behalf of a candidate, it expressly forbids a
candidate from the same activity. Under the present rules, a
situation may occur in which a candidate and a committee member
are in the same room with a donor; and while the committee
member may solicit a contribution, the candidate can only remain
14
a silent observer. To this extent, a restriction that allows
another to speak on his or her behalf is still a content-based
restriction because it forbids the individual to speak their
viewpoint freely and uninhibited on a subject matter.
The political activities restrictions are also content-
based prior restraints because they prohibit speech based on
subject matter. As drafted, the “identification” restriction
bans candidates from speaking on the subject of personal
political organization affiliation. Similarly, the
“endorsement” restriction bans organizations from speaking on
the subject of judicial candidate support. The “speak and
attend” restriction also bans organization members from hearing
and engaging judicial candidates directly at meetings. In
preemptively restricting such speech, the political activities
restrictions are all content-based prior restraints requiring
the strictest scrutiny.
In short, as the solicitation and political organization
restrictions are content-based and impact core political speech
strict scrutiny must be applied.
II. THE SOLICITATION AND POLITICAL ACTIVITIES RESTRICTIONS VIOLATE THE FIRST AMENDMENT BECAUSE THEY ARE NOT NARROWLY
TAILORED TO SERVE A COMPELLING STATE INTEREST.
New Columbus both fails to present a compelling interest
and to demonstrate its solicitation and political activities
restrictions are narrowly tailored to survive strict scrutiny.
15
Under strict scrutiny, New Columbus has the burden of proving
that the solicitation and political activities restrictions are
narrowly tailored to serve a compelling state interest. See,
e.g., White, 536 U.S. at 775; Eu, 489 U.S. at 22. “It is a rare
case in which a law survives strict scrutiny.” Burson v.
Freeman, 504 U.S. 191, 211 (1992).
A. New Columbus’ Advanced Interests Is Not Compelling.
While the appellate court reached the proper holding, the
interests advanced by New Columbus are not compelling. “Only a
compelling state interest ... can justify limiting First
Amendment freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963).
This Court has described a compelling state interest as a
“paramount interest” and an “interest of the highest order.”
Sherbert v. Verner, 374 U.S. 398, 406 (1963); Wisconsin v.
Yoder, 406 U.S. 205, 215 (1972). The proper inquiry as to
whether an interest is compelling involves the tightness of the
fit between the restriction and the alleged interest. Florida
Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). An interest
is not compelling when a restriction falls short of addressing
significant factors that impact the alleged interest. Id.;
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001); Reno
v. Flores, 507 U.S. 292, 302 (1993); Carey v. Population Servs.
Int’l, 431 U.S. 678, 686 (1977).
16
In the present case, New Columbus made an affirmative
decision to elect judges. In both Renne and White, this Court
recognized that “if the State chooses to tap the energy and
legitimizing power of the democratic process [to select its
judges], it must accord the participants in that process the
First Amendment rights that attached to their roles.” Renne,
501 U.S. at 349; White, 536 U.S. at 788. Nonetheless, New
Columbus opted to adopt several prophylactic restrictions that
curtail First Amendment freedoms to allegedly ward off
impartiality and uphold judicial independence. (R. 40.)
Certainly, impartiality and judicial independence are
important to the judicial process. However, the means adopted
by New Columbus do not necessarily accomplish these ends.
First, New Columbus fails to define what it means by
impartiality and judicial independence. (R. 40.) If by
impartiality and judicial independence New Columbus means to
prevent “a lack of bias for or against either party,” there are
already judicial ethics rules in place to prevent such
impropriety. The record contains no evidence that the current
judicial ethics rules are ineffective in preventing such bias.
Considering this, New Columbus’ need to adopt additional
restrictions to achieve this goal does not give rise to the
level of a compelling interest.
17
Similarly, if by impartiality and judicial independence New
Columbus means to prevent corruptive influences on elected
judges, judicial ethics rules and even criminal laws govern and
prevent such activities, like bribery. Once again, New Columbus
does not maintain that the judicial ethics rules have been
ineffective. Thus, it is hard to reason that this advanced
interest is compelling.
Finally, if by impartiality and judicial independence New
Columbus wants to ensure judges remain “open-minded” on legal
issues, then this reasoning fails to take into account that
virtually every judge has preconceived notions about the law.
In fact, the most qualified judicial candidates have previously
written, taught, spoken, and posited their positions on various
legal issues. Moreover, judges running for re-election,
typically have presented their views on issues through their
legal opinions detailed in public records. As the White Court
duly noted, “avoiding judicial preconception on legal issues is
neither possible nor desirable, [and] pretending otherwise by
attempting to preserve the ‘appearance’ of that type of
impartiality can hardly be a compelling state interest....” 536
U.S. at 778. In the present case, while New Columbus may have
an interest in a judicial candidate’s qualifications, it may not
have a compelling interest in a judicial candidate free of all
legal preconceptions.
18
B. Even If The Interest Is Compelling, The Restrictions Are Not Narrowly Tailored Because They Are
Disproportionate To The Advanced Interest.
New Columbus’ restrictions are not narrowly tailored
because they are both over-inclusive and under-inclusive to
achieve the advanced interest. Additionally, there are less
restrictive means to achieve the desired ends. As this Court
made clear in White, restrictions that "’unnecessarily
circumscrib[e] protected expression’" are not narrowly tailored.
536 U.S. at 775 (quoting Brown v. Hartlage, 456 U.S. 45, 54
(1982)). With rare exception, a regulation is not narrowly
tailored if it is either over-inclusive or under-inclusive in
achieving a compelling state interest. Austin, 494 U.S. at 666.
Furthermore, in order to be narrowly tailored, a restriction
should reflect the least restrictive means to achieve the
advanced interest. White, 536 U.S. at 751; Eu, 489 U.S. at 222.
1. The restrictions are both over- and under- inclusive to achieve New Columbus’ advanced
interest.
Over-inclusive restrictions regulate activities that are
beyond a state interest while under-inclusive restrictions fail
to regulate all activities that jeopardize a state interest.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 547 (1993) (noting a law fails strict scrutiny when
leaving “appreciable damage to that supposedly vital interest
unprohibited.”); First Nat’l Bank of Boston v. Bellotti, 435
19
U.S. 765, 794 (1978); Simon & Schuster, 502 U.S. at 119-20.
Over-inclusive and under-inclusive restrictions rarely withstand
strict scrutiny because they highlight inconsistencies between
the purported state’s interest and its real agenda to further
some less than compelling interest. Buckley, 424 U.S. at 1;
Bellotti, 435 U.S. at 792-94; White, 536 U.S. at 780.
As previously mentioned, the White Court struck down a
clause prohibiting judicial candidates from announcing their
views on disputed legal or political issues. The majority
reasoned, in part, that the Minnesota “announce” clause failed
strict scrutiny because it was “woefully under-inclusive, [in]
prohibiting announcements by judges (and would-be judges) only
at certain times and in certain forms." White, 536 U.S. at 783.
Similar to White, New Columbus’ restrictions are under-inclusive
because they fail to address all of the activities that could
undermine the purported interest.
Under New Columbus' solicitation restrictions, only
judicial candidate committees may solicit and accept campaign
contribution funds. These committees are not allowed to
disclose to the judicial candidate the identity of campaign
donors or even those who refused to contribute. Such a
restriction is under-inclusive because it does nothing to
prevent judicial candidates or judges from learning donor names
via public campaign contribution records. Today, campaign
20
contribution records are easily accessible on many Internet
websites free of charge. Moreover, nothing in the solicitation
restrictions prohibit a donor from telling the judicial
candidate directly that he or she contributed. Therefore,
judges are not fully insulated from knowing a donor's identity.
As this fails to regulate all activities that necessarily and
obviously endanger the advanced interest, New Columbus'
solicitation restrictions are under-inclusive.
Similarly, the political activities restrictions are
woefully under-inclusive to the same extent as White’s “announce
clause.” No true meaningful effect can be achieved since the
restrictions only temporarily ban such activities for a few
months prior to an election. Mr. Crandell’s long association
with the New Democratic Party casts doubt that temporarily
restraining his First Amendment rights does little to prevent
public knowledge of his political associations. Rather, the
restrictions give the opposite effect in paternalistically
denying voters candidate information necessary to make an
informed choice.
The restrictions are also over-inclusive because: 1) the
term “political organization” is overly vague and could
encompass organizations never meant for prohibition; and 2) the
term “contributions” is ill-defined and could be construed to
include volunteer time and resources. With regard to the first,
21
the Election Board could use Cannon 4’s broad definition to
stifle particular views by selectively finding that
organizations whose views they dislike are “partisan
organizations” for ban purposes. Since the term political
organization is defined as partisan, this definition could
conceivably include groups like the NAACP, AARP, and even the
local ladies church auxiliary. Additionally, judicial
candidates are barred from speaking to organizations regardless
of whether they share similar views. By prohibiting candidates
from speaking to groups with differing opinions, the state’s
advanced interest may actually be undermined.
As for the latter, the solicitation restriction fails to
specify whether the term “contributions” include in-kind
contributions, such as volunteer time or resources. As such,
the solicitation clause is over-inclusive to the extent it could
prevent judicial candidates from directly asking for volunteers
even to serve on their own campaign committees. See Randall v.
Sorrell, 126 S.Ct. 24 79 (2006)(noting the Vermont campaign
finance act explicitly defined contribution as not including
voluntary services).
Therefore, as written, the restrictions are
disproportionate because they over proscribe and under regulate
activities directly concerning impartiality and independence.
22
2. Alternatively, the restrictions are not the least restrictive means to achieve New Columbus’
ends.
The solicitation and political activities restrictions are
not narrowly tailored because there are less restrictive means
to achieve New Columbus’ interest. As previously mentioned, a
state must employ a regulation that restricts the least speech
possible in achieving their purported interest. See also
Thompson v. W. States Med. Ctr., 535 U.S. 357, 371 (2002);
F.C.C. v. League of Women Voters of Ca., 468 U.S. 364, 395
(1984); Tumey v. Ohio, 273 U.S. 510, 523 (1927). While a
regulation need not be the least burdensome, “if there are
numerous and obvious less-burdensome alternatives to the
restriction...,” then the restriction will be an unreasonable
restraint. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.
469, 480 (1989).
In the present case, an obvious and less restrictive means
for achieving New Columbus’ interest is recusal. See Family
Trust Foundation of Kentucky v. Kentucky Judicial Conduct Com’n,
388 F.3d 224, 228 (6th Cir. 2004) (noting that recusal is a less
restrictive means). For those matters where a judges has a
“direct, personal, substantial, or pecuniary interest" or even
the appearance of impropriety, judges may recuse themselves as a
less restrictive means of maintaining impartiality. Tumey, 273
U.S. at 523.
23
Recusal is a practice dating back to 1792 when the Second
Congress enacted legislation ordering judges to recuse
themselves in cases where they had a self interest. 2 Cong. Ch.
36; 1 Stat. 275. As the state has not proffered any evidence
that recusal is ineffective, vigorous public enforcement of
recusal statutes would be a very effective and less restrictive
means of achieving New Columbus’ goals.
Additionally, abandoning judicial elections would also be
an obvious and less restrictive means for achieving New
Columbus’ interest. The decision to have judicial elections is
in the state’s hands; and in so choosing, a state accepts an
inevitable amount of impartiality which is inherent to any
election system. White, 536 U.S. at 792 (O’Connor, J.,
concurring) (“If the State has a problem with judicial
impartiality, it is largely one the State brought upon itself by
continuing the practice of popularly electing judges.”).
Therefore, in abandoning a popular voting system, a state could
opt for a different selection process (i.e., appointment or
merit-based) that would impose less restrictions on a judicial
candidate’s First Amendment freedoms. See Mary Eileen Weicher,
The Expansion of the First Amendment in Judicial Elections:
Another Cause for Reform, 38 LOY. U. CHI. L.J. 833 (2007)(arguing
the best means of preserving judicial impartiality is the
abandonment of popular elections in favor of a merit-based
24
selection system); Sandra Day O’Connor, Editorial, Justice For
Sale: How Special-Interest Money Threatens The Integrity of the
Courts, WALL ST. J., Nov. 15, 2007 (arguing in part for a merit-
based selection system); Alexander Hamilton, The Federalist No.
78 (arguing for an appointment system).
Moreover, as aptly stated by former Justice O’Connor, “a
commitment to judicial independence will only come from robust
civics education, starting at a very young age.” See O’Connor,
supra. To ensure judicial independence, especially in a state
choosing to popularly elect its judges, the state should foster,
not restrict, more political debate and candidate disclosure.
Id.; cf. Buckley, 424 U.S. at 15-14 (“In a republic where the
people are sovereign, the ability of the citizenry to make
informed choices among candidates for office is essential, for
the identities of those who are elected will inevitably shape
the course that we follow as a nation.”).
Consequently, judicial recusal, abandonment of popular
elections or rules mandating complete candidate disclosures are
all less restrictive means of achieving independence and
impartiality.
25
CONCLUSION
For the foregoing reasons, this Court should affirm the
judgment of the United States Court of Appeals for the
Fourteenth Circuit.
Respectfully submitted,
Counsel for Respondent
Dated: January 18, 2008
APPENDIX A
First Amendment
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the government for
a redress of grievances.” U.S. Const. amend. I.
APPENDIX B
New Columbus (N. Col.) Code of Judicial Conduct, Canons 1-7
[NOTE: Additional, Non-Relevant Canons Have Been Omitted]
Canon 1: Except as authorized below, a judge or a candidate for
election to judicial office shall not:
(a) act as a leader or hold any office in a political
organization; identify him- or herself as a member of a
political organization, except as necessary to vote in an
election;
(b) publicly endorse or, except for the judge or
candidate's opponent, publicly oppose another candidate for
public office;
(c) make speeches on behalf of a political organization;
(d) attend political gatherings; or seek, accept, or use
endorsements from a political organization; or
(e) solicit funds for or pay an assessment to or make a
contribution to a political organization or candidate, or
purchase tickets for political party dinners or other
functions.
Canon 2: A judge or a candidate for election to judicial office
may, except as prohibited by law,
(a) speak to gatherings, other than political organization
gatherings, on his or her own behalf;
(b) appear in newspaper, television and other media
advertisements supporting his or her candidacy; and
(c) distribute pamphlets and other promotional campaign
literature supporting his or her candidacy.
Canon 3: A judge or a candidate for election to judicial office
shall not personally solicit or accept campaign contributions or
solicit publicly stated support. A candidate may, however,
establish committees to conduct campaigns for the candidate
through media advertisements, brochures, mailings, candidate
forums, and other means not prohibited by law. Such committees
may solicit and accept campaign contributions, manage the
expenditure of funds for the candidate's campaign, and obtain
public statements of support for his or her candidacy. Such
committees are not prohibited from soliciting and accepting
campaign contributions and public support from lawyers, but
shall not seek, accept, or use political organization
endorsements. Such committees shall not disclose to the
candidate the identity of campaign contributors nor shall the
committee disclose to the candidate the identity of those who
were solicited for contribution or stated public support and
refused such solicitation. A candidate shall not use or permit
the use of campaign contributions for the private benefits of
the candidate or others.
Canon 4: Political Organization. For purposes of Canons 1-5, the
term political organization denotes a partisan organization.
Canon 5: Each justice of the New Columbus Supreme Court and each
court of appeals and district court judge is deemed to hold a
separate nonpartisan office.
Canon 6: Canons 1-7 apply to all judicial candidates. A
successful candidate, whether or not an incumbent, is subject to
judicial discipline for his or her campaign conduct; an
unsuccessful candidate who is a lawyer is subject to lawyer
discipline under the New Columbus Rules of Professional for his
or her campaign conduct.
Canon 7: The New Columbus Election Board [charged generally with
responsibility for ensuring compliance of non-judicial
candidates for state-level office] shall have authority to
monitor the campaign activities of candidates for judicial
office; investigate allegations of violations of Canons
1-5 by candidates for judicial office; make recommendations to
the New Columbus Supreme Court regarding judicial discipline
consistent with the state code, up to and including removal from
the bench and/or lawyer discipline consistent with the state
code, up to and including disbarment; and generally oversee the
compliance of candidates for judicial office with these Canons.
The Board shall provide timely reports on the activities of
candidates for judicial office to the New Columbus Supreme
Court, no less than annually in a non-election year and
quarterly in an election year during which candidates are
seeking judicial office. The New Columbus Supreme Court shall
retain ultimate authority over the election of candidates for
judicial office.
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