2021-3: Whether a judicial candidate may respond to questionnaires seeking the candidate’s views on controversial moral, legal or political issues?

IJEC Opinion No. 2021-3

Opinion 2021-3: Whether a judicial candidate may respond to questionnaires seeking the candidate’s views on controversial moral, legal or political issues?

Topic: Whether a judicial candidate may respond to questionnaires seeking the candidate’s views on controversial moral, legal or political issues?

Digest: Candidates for judicial election or retention may respond to questionnaires from media sources, public interest groups or advocacy groups that ask for candidates’ views on controversial moral, legal or political issues so long as they refrain from making statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court.

References:

Facts: Candidates for judicial office are routinely asked to respond to questionnaires eliciting their views on controversial issues, such as abortion and gun control. The requests can come from a variety of sources. Advocacy groups, political organizations and media representatives are common requesters. Candidates can assume that any responses they provide will influence endorsements, but they may or may not be able to predict how the requester will portray their responses in communications to the public.

Question:    May a candidate for judicial office respond to organizations seeking completion of questions on issues of public concern?

Opinion:  

The practice of electing judges by popular vote evokes tension between candidates’ First Amendment rights, the interest of promoting an informed electorate, and the importance of assuring public confidence in the integrity and impartiality of the judiciary. In furtherance of the third goal, the Illinois Code of Judicial Conduct requires a judicial candidate to “maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary,” and it prohibits a judicial candidate from making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court.” Illinois Supreme Court Rule 67 A(3)(a) and (d)(1). Candidates for judicial office are bound by those provisions whether they are presently serving as appointed or elected judges (running for either election or retention) or are not presently on the bench. See Illinois Rules of Professional Conduct, Rule 8.2(b).

Advocacy groups, political organizations, and often voters are interested in identifying a judicial candidate’s positions on issues of public concern. The question is whether candidates can provide that information without running afoul of the prohibition on making statements that commit or appear to commit the candidate with respect to cases, controversies or issues likely to come before the court. Controlling case law has decisively answered that question in the affirmative, with courts consistently declaring that the First Amendment protects expressions by a judicial candidate of opinions or views on disputed issues so long as candidates do not commit to deciding particular cases in particular ways.

In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the United States Supreme Court held that a Minnesota provision prohibiting a candidate for judicial office from “announc[ing] his or her views on disputed legal or political issues” unconstitutionally restricted the speech of judicial candidates. The Court held that under the strict scrutiny test applicable to restrictions on speech, Minnesota was required to show that the provision was narrowly tailored to serve a compelling state interest. The Court acknowledged that preserving impartiality of judges was a compelling state interest but found the provision both overbroad and underinclusive for that purpose.

In White, the Court analyzed three possible meanings of “impartiality.” The most traditional for purposes of assessing what due process requires involves bias for or against parties to a particular controversy. The Court observed that the Minnesota proscription against candidates announcing their views on disputed issues, as opposed to stating bias for or against parties, was not narrowly tailored to address that understanding of impartiality, and, indeed, barely addressed the concern at all.

A second possible understanding of “impartiality” would involve lack of predisposition in favor of or against a specific legal view. The Court found that preserving that form of impartiality could not be deemed a compelling state interest in that “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice.” White, 536 U.S. at 777. Instead, the Court observed, it is virtually impossible to find a judge who does not have preconceived views on legal issues and having no views at all would be evidence of lack of qualification rather than lack of impartiality.

The third possible meaning of impartiality would involve open-mindedness, a willingness to consider views that oppose one’s preconceptions and to be open to persuasion when issues arise in a pending case. Minnesota argued that if candidates are allowed to announce their views on disputed legal or political issues while campaigning for office, they might feel pressure to rule a certain way in particular cases in order to maintain consistency with statements they previously made. The Court found that if that was the compelling state interest Minnesota sought to promote, the restriction on announcing one’s views during a campaign for judicial office was woefully underinclusive since judges and lawyers would be free to announce those same views before and after a campaign without consequence.

After White, the United States Court of Appeals for the Seventh Circuit addressed the constitutionality of Indiana Rules which provided that judicial candidates “shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Indiana Code of Judicial Conduct, Rules 2.10(B) and 4.1(A)(13). Bauer v. Shepard, 620 F.3d 704 (CA 7, 2010). At issue was a questionnaire from a right to life interest group. Among the questions posed were whether the candidate agreed with the decision in Roe v. Wade, 410 U.S. 113 (1973) and whether the candidate agreed with the statement: “I believe that the unborn child is biologically a human being and that the right to life of human beings should be respected at every stage of their biological development.” Bauer, at 706-707 The parties challenging the constitutionality of the provision asserted that candidates feared being charged with a violation of the prohibition on pledges, promises and commitments if they answered those questions, where, the challengers asserted, answers to such questions were constitutionally protected under the holding in White.

The Court of Appeals agreed that under White, judicial candidates were entitled to announce their views on disputed legal and political issues by answering the questionnaire but disagreed that doing so would violate the Indiana rule. The Court observed that answering those questions, whether in the affirmative or negative, would not commit candidates to deciding particular cases that might come before them in a particular way. Contrast any answer to the question: “Do you vow to overturn Roe v. Wade?” (Kansas Judicial Review v. Stout, 196 P.2d 1162, 1176 (Kan. 2008). As a result, the answers would not be inconsistent with the impartial performance of judicial duties, and the Court declined to find that the Indiana rule restricted protected speech.

Similar results were reached in opinions of this Committee that preceded White and Bauer. See Illinois Judicial Ethics Committee, Op. 94-05 (1994) – judicial candidate may make statements expressing the candidate’s views on gun control; Op. 94-17 (1994) – judges may participate in a speakers bureau where they will express views on topics such as abortion, the death penalty, the merit of proposed or enacted legislation, merit selection of judges, jail overcrowding, plea bargaining, three time loser laws, and local government issues, such as bond issues or school referenda. The Committee relied in part on Supreme Court Rule 64, which authorizes a judge to speak, write, lecture, teach and participate in activities concerning the law, the legal system and the administration of justice. As to all categories of subject matter addressed in those opinions, the Committee cautioned that judges and judicial candidates must take care not to make statements that commit or appear to commit them to deciding particular cases in particular ways, and that it may be advisable in many instances to explicitly declare the candidate’s dedication to deciding cases on their merits, consistent with governing law.

 Long prior to those opinions, Professor E. Wayne Thode, reporter to the drafting committee of the 1972 ABA Code of Judicial Conduct, explained that under that Code, a judge could support or oppose a statute or court decision without compromising judicial impartiality even when “the very issue on which he has spoken or written” comes before the judge.1 Thode provided an example of the type of written or oral declaration that would cross the line and indicate partiality:

There is a significant difference between the statement, “I will grant all divorce actions that come before me—whatever the strength of the evidence to support the statutory ground for divorce—because I believe that persons who no longer live in harmony should be divorced,” and the statement, “I believe that limited statutory grounds for divorce are not in the public interest. The law should be changed to allow persons who no longer live in harmony to obtain a divorce.” The latter does not compromise a judge’s capacity to apply

1 E. WAYNE THODE, REPORTER’S NOTES TO THE CODE OF JUDICIAL CONDUCT 74 (1973).

impartially the law as written, although it clearly states his position about improvements in the law.

Although the Code of Judicial Conduct does not generally prohibit judicial candidates from responding to questionnaires, there is no ethical imperative that would require judicial candidates to announce their views on disputed legal, moral and political issues. Moreover, a candidate may have information that would suggest that any answers provided to a particular questionnaire are likely to be misused or misinterpreted so as to raise a genuine concern that answering the questionnaires might contribute to undermining public confidence in the independence and integrity of the judiciary. In any such case, the candidate would be required to make a careful analysis of the likely impact of whether or how to answer the questionnaire, and the candidate must avoid making statements that are likely to be portrayed as a commitment to prejudge cases and issues likely to come before the court. c.f., Supreme Court Rule 64A providing that judges may engage in certain law related activities “if in doing so the judge does not cast doubt on his or her capacity to decide impartially any issue that may come before him or her.” When a candidate agrees to respond, it may be wise to include assurances that the candidate will keep an open mind and carry out adjudicative duties faithfully and impartially if elected. See ABA Model Code of Judicial Conduct, Rule 4.1, Comment [15]. A disclaimer either by the candidate or the organization is insufficient to excuse a violation of the Code of Judicial Conduct. Candidates choosing to respond to questionnaires are advised that the substance of the responses must not contain statements that commit or appear to commit them to decide particular cases, controversies, or issues within cases that are likely to come before the court in a particular way.

Conclusion

Candidates for judicial office are entitled under the First Amendment to announce their views on disputed moral, legal and political issues, and they are thus free to answer questionnaires that seek their views on controversial topics. In doing so, they must take care to avoid making statements that commit or appear to commit them to decide particular cases in particular ways and avoid responses that may cast doubt on their ability to be impartial in deciding matters that will come before them. A candidate may also be advised to explicitly disclaim any commitment to deciding cases in a particular way where the candidate has a reasonable concern that responses to a questionnaire may be represented or misinterpreted as a commitment.


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