RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0199p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MARCUS CAREY,

Plaintiff-Appellant/Cross-Appellee,

v.

STEPHEN D. WOLNITZEK, in his official

capacity as Chairperson of the Kentucky

Judicial Conduct Commission; MICHELE M.

KELLER, in her official capacity as a member

of the Kentucky Judicial Conduct

Commission; EDDY COLEMAN, in his official

capacity as a member of the Kentucky

Judicial Conduct Commission; SUSAN M.

JOHNSON, in her official capacity as a

member of the Kentucky Judicial Conduct

Commission; DIANE E. LOGSDON, in her

official capacity as a member of the Kentucky

Judicial Conduct Commission; JOYCE KING

JENNINGS, in her official capacity as a

member of the Kentucky Judicial Conduct

Commission; LEE E. SITLINGER, JR., in his

official capacity as chairperson of Panel A of

the Kentucky Inquiry Commission; REED N.

MOORE, JR., in his official capacity as

chairperson of Panel B of the Kentucky

Inquiry Commission; STEPHEN L. BARKER, in

his official capacity as chairperson of Panel C

of the Kentucky Inquiry Commission; LINDA

A. GOSNELL, in her official capacity as Bar

Counsel in Kentucky,

Defendants-Appellees/Cross-Appellants.

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N

Nos. 08-6468/6538

Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

No. 06-00036—Karen K. Caldwell, District Judge.

Argued: January 13, 2010

Decided and Filed: July 13, 2010 

1
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 2

*

The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle

District of Tennessee, sitting by designation.

Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN, District

Judge.*

_________________

COUNSEL

ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana,

for Appellant. Mark R. Overstreet, STITES & HARBISON, PLLC, Frankfort,

Kentucky, for Appellees. ON BRIEF: James Bopp, Jr., Anita Y. Woudenberg, BOPP,

COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Mark R. Overstreet,

STITES & HARBISON, PLLC, Frankfort, Kentucky, Bethany A. Breetz, STITES &

HARBISON, PLLC, Louisville, Kentucky, R. Gregg Hovious, FULTZ MADDOX

HOVIOUS & DICKENS PLC, Louisville, Kentucky, for Appellees. Benjamin C. Mizer,

David M. Lieberman, Emily S. Schlesinger, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, B. Eric Restuccia, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae. 

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J.,

joined. WISEMAN, D. J. (p. 44), delivered a separate opinion concurring in part and

dissenting in part.

_________________

OPINION

_________________

SUTTON, Circuit Judge. Imagine if a State imposed these restrictions on

candidates for election to the legislature: (1) They “shall not identify” themselves “as

a member of a political party in any form of advertising or when speaking to a

gathering”; (2) they “shall not solicit campaign funds”; and (3) they “shall not . . . make

a statement that a reasonable person would perceive as committing” the candidate to vote

“a certain way on a[n] . . . issue” likely to come before the legislature. A court faced

with a First (and Fourteenth) Amendment challenge to the law would make short work

of it. Legislative candidates have a First Amendment right to associate publicly with a

political party, see Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986), to

solicit campaign funds, see Riley v. Nat’l Fed. of the Blind of N.C., 487 U.S. 781, 796

(1988), and to communicate to their constituents how they will vote on the issues of the
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 3

day, see Brown v. Hartlage, 456 U.S. 45, 55–59 (1982). It is doubtful that a single

federal or state court judge in the country would see it differently.

Yet what happens if the same restrictions apply to judicial elections, not

legislative elections? Some say the answer is the same. Elections are elections, and the

same First Amendment applies to all of them. When the government suppresses election

speech based on its content—prohibiting candidates from mentioning a political party

with whom they affiliate, barring them from putting their name on a fund-raising letter

or telling them what they can and cannot say about their judicial philosophy—the most

rigorous form of constitutional second-guessing applies, and no categorical exemption

from the First Amendment spares the government from this burden. In modern America,

judicial elections are no less relevant to the public policy concerns of the citizenry than

legislative elections, and the First Amendment protects electioneering speech in the one

context as vigorously as it does in the other. Concerns about impartiality and openmindedness that might result from unfettered judicial campaigning can be handled after

the elections, not before, through the application of case-by-case judicial recusal rules

that all States require their judges to follow before they agree to hear a case. Any

remaining concerns flow not from the absence of speech restrictions on judicial

candidates but from the State’s insistence on holding elections for judicial office in the

first place. A State cannot simultaneously insist that judges be held accountable to the

electorate at regular intervals but deny to sitting judges and candidates alike the

communicative tools for explaining how they will be held to account.

Others say it is not that easy. Judges do not represent constituents. They apply

the law to the facts one case at a time, and, if they represent anyone or anything, it is the

rule of law, which is why they sometimes must rule against the policy preferences of a

majority of the voters. The judicial process works only when it is done in a disinterested

manner, which is inconsistent with campaigns in which judges commit to rule, or appear

to commit to rule, in a certain way in certain cases. It is one thing when a legislator

solicits money during a campaign; it is quite another when a judicial candidate, a sitting

judge above all, does the same. With a few modest exceptions, see, e.g., Caperton v. A.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 4

T. Massey Coal Co., ___ U.S. ___, 129 S. Ct. 2252 (2009); Mich. Court Rule 2.003,

judicial-recusal rules are self-enforced and therefore may not provide adequate

safeguards against the risks that flow from treating judicial elections like legislative

ones. Unlike the other branches of government, the authority of the judiciary turns

almost exclusively on its credibility and the respect warranted by its rulings, both of

which are likely to be diminished by free-flowing electoral speech that permits the

malignant inference that there is such a thing as caucus-bound blue-robed judges and

caucus-bound red-robed judges. In some settings, there can be too much of a good thing,

and unfettered free speech in judicial elections is one of them.

This is a complicated debate, and today’s case requires us to take a side on some

of these issues. Most recently in 2005, the Kentucky Supreme Court promulgated a

judicial canon along the lines of the hypothetical legislative campaign rules mentioned

above. As sitting judges ourselves, we have considerable sympathy for the concerns that

prompted the canon, so much so that we embrace a central premise of it: Judicial

elections differ from legislative elections, and the Kentucky Supreme Court has a

compelling interest in regulating judicial campaign speech to ensure the reality and

appearance of an impartial judiciary. Yet because two clauses of the canon overlooked

narrower ways of advancing this interest and because, as written, they remain

incompatible with the United States Supreme Court’s decision in Republican Party of

Minnesota v. White, 536 U.S. 765 (2002), we must invalidate them. The third clause is

constitutional in the main but contains a material ambiguity, which requires further

consideration by the district court. The district court’s decision is affirmed in part and

vacated in part.

I.

A.

In 1792, Kentucky became the fifteenth State (and the fourth Commonwealth).

The original Kentucky Constitution permitted the Governor to appoint judges, see Ky.

Const. art. 2, § 8 (1792), but the Commonwealth, in the aftermath of the Age of Jackson,
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 5

amended its Constitution in 1850 to require its judges to stand for popular election to

eight-year terms. See Ky. Const. § 117; Ky. Const. art. 4, §§ 4, 6 (1850). Since 1975,

judicial elections in Kentucky have been “nonpartisan,” compare Ky. Const. §116

(1891) with Ky. Const. §117 (1976), meaning that political parties have no formal role

in any stage of the judicial selection process. Prospective candidates submit petitions

for nomination to the Secretary of State. Ky. Rev. Stat. Ann. § 118A.060. The

Commonwealth holds a single primary election for each judicial seat with no party

identifiers and random ballot positioning. Id. The top two vote-getters in the primary

election receive a spot on the general election ballot, which also is held without any

party identifier. Id.

In competing for judicial seats, all candidates must abide by the Kentucky Code

of Judicial Conduct. Promulgated by the Kentucky Supreme Court, it generally prohibits

“a judge or judicial candidate” from “inappropriate political activity.” Rules of Supreme

Court of Kentucky 3.130(8.2); 4.300, Canon 5. Sitting judges or judicial candidates

violate this admonition, the Code says, if they fail to follow these clauses of Canon 5,

among others:

The party affiliation clause. “A judge or candidate shall not identify

himself or herself as a member of a political party in any form of

advertising, or when speaking to a gathering. If not initiated by the judge

or candidate for such office, and only in answer to a direct question, the

judge or candidate may identify himself or herself as a member of a

particular political party.” Canon 5A(2).

The solicitation clause. “A judge or a candidate for judicial office shall

not solicit campaign funds, but may establish committees of responsible

persons to secure and manage the expenditure of funds for the campaign

and to obtain public statements of support for the candidacy.” Canon

5B(2).

The commits clause. “A judge or candidate for election to judicial office

. . . shall not intentionally or recklessly make a statement that a

reasonable person would perceive as committing the judge or candidate

to rule a certain way in a case, controversy, or issue that is likely to come

before the court . . . .” Canon 5B(1)(c).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 6

The Kentucky Judicial Conduct Commission, a constitutionally mandated state body

subject to judicial review by the Kentucky Supreme Court, see Ky. Const. § 121,

enforces the Code of Judicial Conduct. It may impose sanctions on violators of the

Code, which run the gamut from a private reprimand to a public censure to removal from

office to a referral to the Kentucky Bar Association for disbarment from the practice of

law. Rules of Supreme Court of Kentucky 4.020. The Kentucky Inquiry Commission

and the Office of Bar Counsel also police ethical violations by Kentucky attorneys,

including violations of the rule that “[a] lawyer who is a candidate for judicial office

shall comply with the applicable provisions of the Code of Judicial Conduct.” Rules of

Supreme Court of Kentucky 3.130(8.2); 3.160(1).

B.

In June 2006, Marcus Carey, then a candidate for a seat on the Kentucky

Supreme Court, filed a complaint in federal district court claiming that the party

affiliation, solicitation and commits clauses violated his speech and associational rights

under the First and Fourteenth Amendments of the U.S. Constitution. The named

defendants sit on the Kentucky Judicial Conduct Commission, sit on the Kentucky

Inquiry Commission or serve as Bar Counsel.

Carey complained that he wanted to disclose his party status, yet he feared the

party affiliation clause barred him from doing so. He wanted to ask for campaign

contributions by signing fund-raising letters, yet he feared the solicitation clause barred

him from doing so. And he wished to respond to a judicial questionnaire distributed by

Kentucky Right to Life, raising questions for the candidates about their judicial

philosophy and about their positions on specific issues, yet he feared the commits clause

barred him from doing so. He asked the court to declare the clauses unconstitutional on

their face and to enjoin their enforcement.

In October 2006, roughly one month before the election, the district court

preliminarily enjoined enforcement of the party affiliation and the solicitation clauses

but dismissed Carey’s challenge to the commits clause on ripeness and standing grounds.

On November 2, Carey moved to amend his complaint, re-challenging the commits
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 7

clause, this time detailing the statements he proposed to make in possible violation of

the clause. About a week later, Carey lost the election.

In September 2007, the court ruled that Carey’s amended challenge to the

commits clause was ripe for review and allowed it to proceed along with Carey’s

challenges to the party affiliation and solicitation clauses. The parties all moved for

summary judgment. In ruling on the motions, the district court determined that strict

scrutiny applied to all of the challenges. It then invalidated the party affiliation and

solicitation clauses on their face but rejected Carey’s facial challenge to the commits

clause. The state defendants appeal the court’s ruling on the party affiliation and

solicitation clauses, and Carey appeals the court’s ruling on the commits clause.

II.

Before turning to the merits, we must consider two jurisdictional questions

implicated by these challenges: Did Carey file his claims too early, making them unripe

for judicial review, or too late, making them moot? See Warshak v. United States, 532

F.3d 521, 525 (6th Cir. 2008) (en banc).

Ripeness. Designed to ensure that the federal courts resolve “existing, substantial

controversies,” Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002), not disputes

“anchored in future events that may not occur as anticipated” or may not occur “at all,”

Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997), the ripeness

doctrine ensures that a dispute is concrete and real before the judicial branch resolves

it. Three considerations inform the doctrine: Is the alleged injury likely to occur? Is the

factual record sufficiently developed to resolve the question? And what kinds of

hardships, if any, will the parties face if the court delays resolution of the question?

Warshak, 532 F.3d at 525. In the context of a free-speech overbreadth challenge like

this one, a relaxed ripeness standard applies to steer clear of the risk that the law “may

cause others not before the court to refrain from constitutionally protected speech or

expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 8

 Carey meets these requirements. In future judicial elections, as in prior ones, he

claims an interest in engaging in protected speech that implicates, if not violates, each

clause. He wants to let voters know his party affiliation. He wants to solicit campaign

funds directly, as opposed to indirectly via an election committee. And he wants to

answer judicial questionnaires propounded by a local right-to-life organization. These

aspects of the canon at least chill, and in some instances prohibit, these forms of

communication, and in the course of the November 2006 election, at least until the entry

of the October 2006 injunction, Carey censored himself on each topic. All of this

establishes a “credible fear of enforcement,” Norton, 298 F.3d at 554, sufficient to

overcome any ripeness concerns.

The Kentucky Judicial Conduct Commission persists that the Kentucky Supreme

Court and its ethics branch, the Kentucky Judicial Ethics Committee, have yet to apply

these clauses to Carey, noting that “an authoritative construction of the canons may

significantly alter the constitutional questions.” Commission’s Opening Br. at 22. That

is all true, but it is a peculiar ground for staying our hand now with respect to all of these

challenges, some of which involve clauses with little ambiguity. See City of Lakewood

v. Plain Dealer Pub. Co., 486 U.S. 750, 770 n.11 (1988). This challenge dates from July

2006, and a related challenge, supported by the same counsel, dates from September

2004, see Family Trust Found. of Ky., Inc. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky.

2004). The Commission has had ample time to request interpretations or modifications

of Canon 5 by the Committee or the Court, yet apparently has not done so. Nor has the

Commission, or anyone else in this case, asked the federal courts to certify any questions

to the Kentucky Supreme Court. These claims are ripe for review.

Mootness. In one sense, Carey’s original challenge seems moot because the

November 2006 election has come and gone. Carey filed his original complaint months

ahead of the election, and moved to amend it a week before the election, yet here we are

more than three years after the election, still considering his claims. Carey, however,

retains the right to run for judicial office again, and all candidates for judicial office in

Kentucky, whether sitting judges or not, are subject to Canon 5. Under these
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 9

circumstances, the claims may proceed: The alleged wrongs are “capable of repetition,

yet evading review,” saving them from mootness, as the district court correctly held and

as the parties do not dispute. See Fed. Election Comm’n v. Wis. Right to Life, Inc., 551

U.S. 449, 462 (2007); Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 492–93 (6th Cir.

1995).

III.

A.

Two recent decisions of the Supreme Court—White and Caperton—set the stage

for resolving the merits of this dispute. At issue in White was a judicial canon, first

promulgated by Minnesota in 1974, providing that “a candidate for a judicial office,

including an incumbent judge,” shall not “announce his or her views on disputed legal

or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i); White, 536

U.S. at 768. Applying strict scrutiny, the Court rejected Minnesota’s contention that the

canon preserved judicial “impartiality” in a permissible way.

To the extent the Minnesota announce clause sought to preserve judicial

“impartiality” in one sense—a “lack of bias for or against either party to the

proceeding,” id. at 775—the Court accepted the State’s interest as a compelling one. Id.

at 777 n.7. But the clause suffered from a means-end problem because it did “not restrict

speech for or against particular parties, but rather speech for or against particular

issues.” Id. at 776. It may be, the Court acknowledged, that, “when a case arises that

turns on a legal issue on which the judge (as a candidate) had taken a particular stand,

the party taking the opposite stand is likely to lose,” but that is not due to “any bias

against that party” for “[a]ny party taking that position is just as likely to lose.” Id. at

776–77.

To the extent the State meant to advance “impartiality” in another sense—an

absence of judicial “preconception in favor of or against a particular legal view”—that

was not a compelling interest. Id. at 777. “[S]ince avoiding judicial preconceptions on

legal issues is neither possible nor desirable, pretending otherwise by attempting to
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 10

preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state

interest either.” Id. at 778.

And to the extent the State meant to promote “impartiality” in the sense of

judicial “open-mindedness”—the “willing[ness] to consider views that oppose [one’s]

preconceptions”—the Court found it unnecessary to decide whether this “desirable”

quality amounted to a compelling interest. Id. at 778. It held that the clause was so

poorly tailored to any interest in open-mindedness that the Minnesota Supreme Court

could not have “adopted the announce clause for that purpose.” Id. Judges, both

incumbent and prospective, it reasoned, retained so many ways to communicate their

views on legal issues other than through election statements that the clause gratuitously

limited speech while “leav[ing] appreciable damage to that supposedly vital interest

unprohibited.” Id. at 780.

Caperton dealt with a sitting state supreme court justice whose top campaign

donor in the previous election, the head of a mining company, had spent $3 million on

his behalf—more than all of his other supporters combined. See Caperton, 129 S. Ct.

at 2257. When a high-stakes dispute involving the mining company came before the

court, the justice refused to recuse himself from hearing it and ultimately joined the 3–2

majority in ruling for the company. See id. at 2258. The losing party claimed that the

justice’s participation in the case violated its due process rights. The Supreme Court

agreed, holding that, by refusing to disqualify himself, the justice had unconstitutionally

deprived the parties of a fair hearing. See id. at 2265. When “there is a serious risk of

actual bias,” the Court reasoned, the Constitution requires judges to disqualify

themselves, though the Court cautioned that this was “an extraordinary situation,”

emphasizing the size of the mining company’s support relative to other donors’ support,

the apparently decisive effect of this support on the justice’s election and the close

temporal connection between the justice’s election and the company’s case. Id. at 2263,

2265.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 11

B.

Strict scrutiny applies to all three aspects of this First Amendment challenge.

White, for one, suggests as much, even if the decision does not compel that conclusion.

In striking down Minnesota’s announce clause, the Court said the following about the

standard of review:

As the Court of Appeals recognized, the announce clause both prohibits

speech on the basis of its content and burdens a category of speech that

is “at the core of our First Amendment freedoms”—speech about the

qualifications of candidates for public office. 247 F.3d at 861, 863. The

Court of Appeals concluded that the proper test to be applied to

determine the constitutionality of such a restriction is what our cases

have called strict scrutiny, id., at 864; the parties do not dispute that this

is correct.

536 U.S. at 774.

The state defendants seize on the modest length of the Court’s analysis and

Minnesota’s concession, arguing that we need not apply strict scrutiny here. But White’s

brevity on this score and Minnesota’s concession may suggest something else: that the

counter-argument has little to support it. The multi-State amicus brief filed in support

of Minnesota did not question the applicability of strict scrutiny in White. See Brief

Amicus Curiae of California, et al. in Support of Respondents, Republican Party of

Minn. v. Kelly, 536 U.S. 765 (2002) (No. 01-521). Not one of the Justices, not even one

of the four dissenters, objected to the application of strict scrutiny. And if strict scrutiny

does not apply to judicial canons like this one and the one at issue in White, it is difficult

to understand why the Court exercised its discretion in reviewing White, given that

virtually the entire analysis is premised on the applicability of strict scrutiny and given

that the outcome of the case under a lower level of scrutiny is far from clear.

Free-speech first principles also suggest that strict scrutiny should apply. The

three canons censor speech based on its content in the most basic of ways: They prevent

candidates from speaking about some subjects (judicial philosophy, the legal issues of

the day, party affiliation) but not others (experience); and they prevent candidates from
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 12

asking for support in some ways (campaign funds) but not others (a vote, yard signs).

The canons refer directly to, and are “justified with[] reference to,” the content of

candidates’ speech, meaning they are not eligible for the relaxed review that contentneutral restrictions receive. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

Content-based restrictions on speech generally face strict scrutiny, see United

States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), and thus are

“presumptively invalid” unless the restriction discriminates on the basis of categorically

“proscribable” speech, see R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83 (1992). See

also United States v. Stevens, No. 08-769, slip. op. at 5 (April 20, 2010). None of the

categorical carve-outs apply. The canons do not address “fighting words” or incitement,

see Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), defamation, see

Beauharnais v. Illinois, 343 U.S. 250 (1952), obscenity, see Roth v. United States, 354

U.S. 476 (1957), or child pornography, see New York v. Ferber, 458 U.S. 747, 764

(1982). Far from implicating these exceptions, today’s regulations implicate a core area

of free-speech protection: elections. See Brown, 456 U.S. at 53–54; see also Stevens,

slip op. at 9 (declining to declare “depictions of animal cruelty” as a “new categor[y] of

speech outside the scope of the First Amendment”).

Nor does the nature of the restrictions implicate any of the other areas or types

of regulation—time, place and manner restrictions, commercial speech, expressive

conduct—in which the Court has applied less-than-rigorous review. The canons instead

are of a piece with the kinds of speech regulation—telling candidates what they can and

cannot say before an election—that the courts have scrutinized most rigorously. See,

e.g., Brown, 456 U.S. at 53–54; see also Erwin Chemerinsky, Restrictions on the Speech

of Judicial Candidates are Unconstitutional, 35 Ind. L. Rev. 735, 740–742 (2002)

(explaining that strict scrutiny should apply to First Amendment challenges to judicial

canons like these); Mark Spottswood, Comment, Free Speech and Due Process

Problems in the Regulation and Financing of Judicial Election Campaigns, 101 Nw. U.

L. Rev. 331, 347 (2007) (same).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 13

The Commission does not cite a single case, and we have not found one on our

own, applying anything less than strict scrutiny to comparable free-speech challenges

to judicial election canons. After White, the Eighth Circuit applied strict scrutiny to

Minnesota’s party affiliation and solicitation clauses. See Republican Party of Minn. v.

White, 416 F.3d 738, 749 (8th Cir. 2005) (en banc) (“White II”). After White, the

Eleventh Circuit did the same in invalidating Georgia’s rules prohibiting judicial

candidates from soliciting campaign funds. See Weaver v. Bonner, 309 F.3d 1312, 1319

(11th Cir. 2002). After White, the Seventh Circuit applied strict scrutiny to Wisconsin’s

party affiliation clause and held that Wisconsin’s solicitation clause survived both

intermediate and strict scrutiny. See Siefert v. Alexander, ___ F.3d ___, No. 09-1713,

slip op. at 5, 12 (7th Cir. June 14, 2010). And, before White, the Third Circuit applied

strict scrutiny in upholding some judicial speech restrictions. See Stretton v.

Disciplinary Bd. of Supreme Court of Pa., 944 F.2d 137, 141–42 (3d Cir. 1991).

The Commission urges us to apply a form of intermediate scrutiny, which

balances the “competing fundamental rights” of some judicial candidates (who have a

right to engage in campaign speech) and some litigants (who have a right to an impartial

judiciary). Commission’s Opening Br. at 10. But the reality that judicial impartiality

is a “vital state interest,” protected by the Due Process Clause, Caperton, 129 S. Ct. at

2266–67, does not require us to dilute the First Amendment. It establishes instead that

Kentucky has a compelling interest in preserving the canon, proving that the State can

satisfy the first requirement of strict scrutiny, not that, having satisfied this requirement,

it may water down the remaining requirements.

The Commission’s analogy to Gentile v. State Bar of Nevada, 501 U.S. 1030

(1991), does not hold up. Gentile “balance[d]” litigants’ fair trial rights with attorneys’

free speech rights in upholding a rule prohibiting attorneys involved in a pending trial

from making statements likely to prejudice the proceedings. Id. at 1075. As these

features of the decision suggest, Gentile applies only to speech restrictions imposed on

attorneys during a pending case, see id. at 1073 n.5, which is one reason—there are

others—why a comparable law restricting judges from telling the press about the
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 14

outcome of a pending case would not be an unconstitutional prior restraint on speech.

Today, however, we have a speech restriction aimed not at judges performing court

functions but at judges and judicial candidates making campaign statements or

solicitations outside of court and outside of the process of deciding cases in their official

capacity—all for the purpose of communicating information to voters about whom they

should elect. That Gentile upholds a law restricting a lawyer’s speech during a trial does

not mean that it allows restrictions on lawyers in all settings. Otherwise, a lawyer

running to be the Attorney General or Governor of a State could be censored simply

because she is an “officer of the court.” That is not the case.

The Commission insists that the solicitation clause is an especially poor

candidate for strict scrutiny review, because the Supreme Court applies a “lesser”

standard of review to restrictions on political donations. See McConnell v. Fed.

Election Comm’n, 540 U.S. 93, 136 (2003). But this argument gives analogy a bad

name. The solicitation clause does not set a contribution limit, as in McConnell and

similar cases. See, e.g., Fed. Election Comm’n v. Nat’l Right to Work Comm., 459 U.S.

197, 208 (1982). It flatly prohibits speech, not donations, based on the topic (solicitation

of a contribution) and speaker (a judge or judicial candidate)—precisely the kind of

content-based regulations that traditionally warrant strict scrutiny.

C.

Because strict scrutiny applies, the Commission faces a daunting gauntlet, as “it

is the rare” law that “survives” this kind of review. Burson v. Freeman, 504 U.S. 191,

211 (1992). To survive, the three canons must be “narrowly tailored” to advance a

“compelling state interest.” Eu v. San Francisco County Democratic Cent. Comm., 489

U.S. 214, 222 (1989).

At the same time, Carey seeks to invalidate these clauses not just as applied to

him but in all of their applications, which is to say on their face. In most constitutional

cases, that exceptional remedy requires the claimant to “show one of two things: (1) that

there truly are ‘no’ or at least few ‘circumstances’ in ‘which the Act would be valid,’

United States v. Salerno, 481 U.S. 739, 745 (1987); see also Wash. State Grange v.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 15

Wash. State Republican Party, 552 U.S. 442, 449–50 (2008); or (2) that a court cannot

sever the unconstitutional textual provisions of the law or enjoin its unconstitutional

applications.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (en

banc). The courts, however, “rightly lighten this load in the context of free-speech

challenges to the facial validity of a law.” Id. In view of the risk that “enforcement of

an overbroad law” may “deter[] people from engaging in constitutionally protected

speech” and may “inhibit[ ] the free exchange of ideas,” the overbreadth doctrine permits

courts to invalidate a law on its face “if ‘a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Stevens,

No. 08-769, slip op. at 10 (quoting Wash. State Grange, 522 U.S. at 449 n.6).

IV.

A.

Party affiliation clause. This clause prohibits judges and candidates from

disclosing their party affiliation “in any form of advertising, or when speaking to a

gathering,” save in answer to a question by a voter in one-on-one or “very small private

informal” settings. Rules of Supreme Court of Kentucky 4.300, Canon 5(A)(2);

Kentucky Judicial Ethics Opinion JE-105 (2004). The clause advances at least two

interests, both sufficiently compelling to satisfy the First Amendment. It furthers the

Commonwealth’s goal of having a judiciary that is biased neither in fact nor in

appearance. See White, 536 U.S. at 775–79. And it furthers the Commonwealth’s

interest in diminishing reliance on political parties in judicial selection, a policy

grounded in the Kentucky Constitution’s requirement that judicial elections be

nonpartisan in nature.

The problem, however, is not the Commonwealth’s laudable interests in

promulgating this canon; it is the Commonwealth’s methods in furthering them. The

Court frequently says that censoring speech must be a government’s measure of

“last—not first—resort” in advancing its policy interests, e.g., Thompson v. W. States

Med. Ctr., 535 U.S. 357, 373 (2002), and the narrow-tailoring requirement is proof that
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 16

the Court means it. If a law does too much, or does too little, to advance the

government’s objectives, it will fail. See Eu, 489 U.S. at 222. This canon does both.

The canon’s first problem is a White problem—that it suppresses too much

speech to advance the government’s interest. In invalidating Minnesota’s announce

clause, White established that a State may not prohibit a judicial candidate from

disclosing, say, that “I am for limited government,” “I support a woman’s right to

choose,” “I prefer tough-on-crime laws,” or, to use an example from White, “I think it

is constitutional for the legislature to prohibit same-sex marriage.” 536 U.S. at 779. The

party affiliation clause prohibits all of this, only more so. It prohibits candidates from

announcing their position on one issue of potential importance to voters: the party they

support. And it prohibits them from announcing their position on many issues of

potential importance to voters: the party platform with which they affiliate. A party

platform after all is nothing more than an aggregation of political and legal positions, a

shorthand way of announcing one’s views on many topics of the day. If the single-issue

announce canon at play in White prevented candidates from “communicating relevant

information to voters” on “matters of current public importance,” and did not narrowly

advance the State’s interest in a non-partisan judiciary, id. at 781–82, the same is true

of Kentucky’s canon, which potentially prevents candidates from announcing their views

on many issues at once. See id. at 782 (“We have never allowed the government to

prohibit candidates from communicating relevant information to voters during an

election.”).

At the same time, the canon does too little to advance the State’s interest in

impartiality and the avoidance of partisan influence. Party affiliation, as it turns out, is

not a forbidden topic. It is forbidden only when the candidate raises the point. If, by

contrast, a voter asks the question in a one-on-one setting or in a small gathering, the

candidate is free to say what she wants. That reality undermines the suggestion that a

candidate deals a fatal blow to judicial impartiality by revealing her party affiliations.

And of course, once that information is disclosed, whether in answer to a question or

based on prior publicly known affiliations (including holding other elected offices),
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nothing in the canon prohibits others, whether newspapers or political parties or interest

groups, from disclosing to the world the candidate’s party affiliation. “A law cannot be

regarded as protecting an interest of the highest order, and thus as justifying a restriction

upon truthful speech, when it leaves appreciable damage to that supposedly vital interest

unprohibited.” Id. at 780.

The clause undershoots its target in another respect. Although candidates may

not reveal their party affiliation, they may discuss their membership in, affiliation with

or support of any other type of organization, including organizations that take positions

on judges and judicial philosophy. Although the two major political parties take

positions on a wide array of issues, many interest groups advance a narrower set of

positions and often do so more vocally, particularly with respect to judges. By

identifying themselves with such groups, candidates can communicate more about their

political and judicial convictions than they ever could by carrying a party membership

card—and, in the process, may do as much to call judicial open-mindedness into

question as any party affiliation ever would.

The canon also prohibits only disclosure of a candidate’s party membership, not

party membership itself. Yet the appearance of judicial closed-mindedness is part and

parcel of its reality, not a device designed to disguise reality. If concern over judicial

partisanship and the influence of political parties on judging truly underlies the clause,

the authorization to belong (secretly) to a political party amounts to a gaping omission.

A party’s undisclosed potential influence on candidates is far worse than its disclosed

influence, as the one allows a full airing of the issue before the voters while the other

helps to shield it from public view.

Kentucky responds that the restriction supports the Kentucky Constitution’s

requirement that judicial elections be nonpartisan—that they operate with no partisan

primaries and with no partisan identifiers at the ballot booth. See Ky. Const. § 117; Ky.

Rev. Stat. § 118A.060. The point, however, cuts both ways. In one sense, it establishes

the bona fides of the Commonwealth’s policy. But in another sense, it undermines the

Commonwealth’s professed need to suppress speech in the process. Carey does not
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challenge the validity of prohibiting party identifiers on the ballot or the validity of

holding non-partisan primaries. He just wishes to communicate about a matter of

potential interest to the voters and one that is often already a point of public

knowledge—party affiliation—on his own terms.

Most States have not made the choice Kentucky did. Fifteen States choose their

Supreme Court justices in contested, “nonpartisan” elections, and only five, including

Kentucky, prohibit candidates in those elections from revealing their partisan affiliations.

See App’x A. (Three more prohibit candidates from claiming to be “a candidate of a

political organization” but do not prohibit revealing membership or affiliation. Id.) And

two of these five canons—this one and Wisconsin’s—have been invalidated. See Siefert,

slip op. at 16. That a majority of the States with nonpartisan Supreme Court elections

have opted not to censor their candidates in this way of course does not establish the

invalidity of the clause, but it does call into question the necessity of implementing

Kentucky’s nonpartisan judicial election system in this way and whether it amounts to

the “least restrictive means” of protecting the Commonwealth’s interests. Playboy

Entm’t Group, 529 U.S. at 813.

The Commission says that the clause restricts as little speech as possible while

preventing Kentucky’s elections from turning into ultra-partisan affairs. It allows

judges, the Commission adds, to join political parties, to participate in them and to

disclose party affiliation if asked in the proper setting—allowing voters who care about

a candidate’s partisan affiliation to discover it while preventing widespread

advertisement of a candidate’s party membership and preventing “judicial races [from]

turning into partisan political campaigns.” Commission’s Opening Br. at 66. Yet this

argument looks at the problem through the wrong end of the telescope: It merely

demonstrates that the clause does not restrict as much speech as it might, not that the

clause restricts no more speech than is necessary.

We do not doubt one of the premises of the canon—that party affiliation may not

be a reliable indicator of the qualities that make a good judge. Yet “[i]t is simply not the

function of government to select which issues are worth discussing or debating in the
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course of a political campaign,” White, 536 U.S. at 782 (quotation omitted), and it is

difficult to see how Kentucky’s speech restriction does not do just that. Informational

bans premised on the fear that voters cannot handle the disclosure have a long history

of being legislatively tried and judicially struck, whether in the election setting or

elsewhere. See, e.g., Brown, 456 U.S. at 60 (“The State’s fear that voters might make

an ill-advised choice does not provide the State with a compelling justification for

limiting speech.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 773 (1976). Voters often resort to a variety of proxies in selecting judges

and other office holders, some good, some bad. And while political identification may

be an unhelpful way to pick judges, it assuredly beats other grounds, such as the all-toofamiliar formula of running candidates with familiar or popular last names. In that

respect, this informational ban increases the likelihood that one of the least relevant

grounds for judicial selection—the fortuity of one’s surname—is all that the voters will

have to go on. As the district court correctly concluded, this clause violates the First

Amendment on its face.

B.

Solicitation clause. Kentucky prohibits judicial candidates from “solicit[ing]

campaign funds,” a restriction that extends to all fundraising by the candidate, including

in-person solicitations, group solicitations, telephone calls and letters. Rules of Supreme

Court of Kentucky 4.300, Canon 5(B)(2). The clause permits the candidate to establish

a committee that may solicit campaign donations, and it permits the committee to

disclose to the candidate the names of people who donated to the campaign and those

who declined. See id. Kentucky says that the clause satisfies the First Amendment, but

we, like the district court, conclude that it does not.

As with the party affiliation clause, we do not doubt the bona fides of the

solicitation clause: that it serves Kentucky’s compelling interest in an impartial

judiciary. The same goes for its interest in preserving the appearance and reality of a

non-corrupt judiciary, an objective often served by fundraising limitations. See Fed.

Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 496–97
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 20

(1985). Litigants have a due process right to a trial before a judge with no “direct,

personal, substantial pecuniary interest” in the outcome, Tumey v. Ohio, 273 U.S. 510,

523 (1927), and the legitimacy of the judiciary rests on delivering on that promise and

in furthering the public’s trust in the integrity of its judges, see Mistretta v. United

States, 488 U.S. 361, 407 (1989). See generally Caperton, 129 S. Ct. 2252.

Preserving these interests, we also acknowledge, grows more complicated when

a State exercises its sovereign right to select judges through popular elections. Judicial

elections, like most elections, require money—often a lot of it. Kentucky’s 2006

Supreme Court election, which featured four contested races and one uncontested race,

saw ten candidates raise a total of $2,119,871, of which the candidates spent $772,563

on 2,357 television commercials. Brennan Center for Justice at NYU School of Law,

The New Politics of Judicial Elections 2006 at 3, 16. “Unless the pool of judicial

candidates is limited to those wealthy enough to independently fund their campaigns, a

limitation unrelated to judicial skill, the cost of campaigning requires judicial candidates

to engage in fundraising.” White, 536 U.S. at 789–90 (O’Connor, J., concurring).

Complicating matters further, the general public often, though not invariably, pays less

attention to judicial elections than other elections, forcing judicial candidates to focus

their fundraising efforts on the segment of the population most likely to have an interest

in judicial races: the bar. “This leads to the unseemly situation in which judges preside

over cases in which the parties are represented by counsel who have contributed in

varying amounts to the judicial campaigns.” Stretton, 944 F.2d at 145.

That the clause advances important government interests, however, does not

establish that it does so narrowly. Prohibiting candidates from asking for money

suppresses speech in the most conspicuous of ways and, in the process, favors some

candidates over others—incumbent judges (who benefit from their current status) over

non-judicial candidates, the well-to-do (who may not need to raise any money at all)

over lower-income candidates, and the well-connected (who have an army of potential

fundraisers) over outsiders. For these reasons, it is tempting to say that any limitation

on a candidate’s right to ask for a campaign contribution is one limitation too many. But
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 21

there are at least two areas covered by the clause that test such an interpretation—faceto-face solicitations, particularly by sitting judges, and solicitations of individuals with

cases pending in front of the court. Yet we need not decide the validity of such

restrictions today because Kentucky goes well beyond them.

Besides covering in-person solicitations and those directed at individuals with

pending cases, the canon prohibits a range of other solicitations, including speeches to

large groups and signed mass mailings. Such indirect methods of solicitation present

little or no risk of undue pressure or the appearance of a quid pro quo. No one could

reasonably believe that a failure to respond to a signed mass mailing asking for

donations would result in unfair treatment in future dealings with the judge. Nor would

a speech requesting donations from a large gathering have a “coercive effect” on

reasonable attendees. Commission’s Opening Br. at 55; compare Ohralik v. Ohio State

Bar Ass’n, 436 U.S. 447, 465–66 (1978) (State may regulate lawyers’ in-person forprofit solicitation of clients because of “intrusive[ness]” of “persuasion under

circumstances conducive to uninformed acquiescence”) with In re Primus, 436 U.S. 412,

435–36 (1978) (regulation of lawyer’s written, not-for-profit solicitation merited

heightened scrutiny because it did not “afford any significant opportunity for

overreaching or coercion”) and Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 475 (1988)

(“Targeted, direct-mail solicitation is distinguishable from the in-person solicitation”

because there is no “badgering advocate breathing down [a potential client’s] neck,”

asking for “an immediate yes-or-no answer.”).

At the same time, the clause does too little to protect the Commonwealth’s

interests. Although the candidate himself may not solicit donations, his campaign

committee may. And nothing prevents a committee member from soliciting donations

in person. That leaves a rule preventing a candidate from sending a signed mass mailing

to every voter in the district but permitting the candidate’s best friend to ask for a

donation directly from an attorney who frequently practices before the court. Are not

the risks of coercion and undue appearance far less with the first (prohibited) solicitation

than the second (permitted) one?
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 22

Although the clause prevents judicial candidates from saying “please, give me

a donation,” it does not prevent them from saying “thank you” for a donation given. The

clause bars any solicitation, whether in a large group or small one, whether by letter or

one on one, but it does not bar the candidate from learning how individuals responded

to the committee’s solicitations. That omission suggests that the only interest at play is

the impolitic interpersonal dynamics of a candidate’s request for money, not the more

corrosive reality of who gives and how much. If the purported risk addressed by the

clause is that the judge or candidate will treat donors and non-donors differently, it is

knowing who contributed and who balked that makes the difference, not who asked for

the contribution. If Kentucky fears that judges will allow campaign donations to affect

their rulings, it must believe that “[s]uccessful candidates will feel beholden to the

people who helped them get elected regardless of who did the soliciting of support.”

Weaver, 309 F.3d at 1323.

Two other circuits have considered the validity of similar canons and have come

to similar conclusions. In Weaver, the Eleventh Circuit considered a Georgia rule

providing that judicial candidates “shall not themselves solicit campaign funds.” 309

F.3d at 1315. Relying on many of the same means-end problems identified here, the

court concluded that the canon was “not narrowly tailored to serve Georgia’s compelling

interest in judicial impartiality.” Id. at 1322. In White II, on remand after the Supreme

Court invalidated Minnesota’s “announce” clause, the Eighth Circuit invalidated a canon

that prohibited judicial candidates from “personally solicit[ing] or accept[ing] campaign

contributions.” 416 F.3d at 745. In Siefert, ___ F.3d ___, the Seventh Circuit upheld

Wisconsin’s prohibition on judges’ “personal[] solicit[ation]” of campaign contributions.

See slip op. at 32–33. But, in doing so, it focused on the problems associated with

“direct” solicitation and did not consider the validity of applying the canon to mass

mailings and group solicitations—the most troubling scenarios here. See id. at 30–32.

The state defendants push back, arguing that, even though a candidate may

discover her donors’ identities from the campaign committee, the solicitation clause

makes “favoritism” toward contributors “more difficult.” Commission’s Opening Br.
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at 57. After all, they reason, when a candidate asks for a donation in person, she

immediately will find out whether the donor gives and how much. Id. That may or may

not be true. But even if we grant the Commonwealth’s premise—that in-person

solicitations always lead to more immediate information about donations or

rejections—that suggests only that the solicitation clause may be constitutional in some

settings. It does not resolve the clause’s considerable overbreadth: its application to

mass-mailing solicitations or speeches to a large audience.

But the solicitation clause must be constitutional, the state defendants add,

because most other States with judicial elections also prevent candidates from soliciting

funds. See Commission’s Opening Br. at 53. The argument is not as helpful as they

suggest. By our count, twenty-two States currently elect judges to their highest courts

in contested elections. (States with retention elections are less relevant because by

definition they do not involve two candidates competing for the same seat.) Of these

twenty-two States, thirteen, including Kentucky, prohibit candidates from soliciting

campaign contributions. See App’x B. (Two more have hortatory canons telling

candidates they “should not” or are “strongly discouraged” from personally soliciting.

Id.) Yet this bare majority is no more dispositive here than it was in White, where

twenty-six States had some form of announce clause. See White, 536 U.S. at 786. No

less importantly, we do not decide today whether a State could enact a narrowly tailored

solicitation clause—say, one focused on one-on-one solicitations or solicitations from

individuals with cases pending before the court—only that this clause does not do so

narrowly.

The Commonwealth to its credit wishes to avoid cases like Simes v. Ark. Judicial

Discipline & Disability Comm’n, 247 S.W.3d 876 (Ark. 2007), where a judge “made

direct, personal solicitations” to attorneys who “had cases currently pending in the

judge’s court.” Id. at 880. But Kentucky’s clause goes well beyond these sorts of

solicitations. Kentucky has chosen to elect its judges in competitive elections and must

abide by some of the risks that go with that decision. See White, 536 U.S. at 792

(O’Connor, J., concurring). While we do not question Kentucky’s right to select judges
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 24

through popular elections, the Commonwealth cannot exempt itself from the demands

of the First Amendment in the process. See id. at 788 (majority); Geary v. Renne, 911

F.2d 280, 294 (9th Cir. 1990) (en banc) (Reinhardt, J., concurring) (“The State . . .

cannot have it both ways. If it wants to elect its judges, it cannot deprive its citizens of

a full and robust election debate.”), vacated on other grounds by Renne v. Geary, 501

U.S. 312 (1991). The solicitation clause is overbroad and thus invalid on its face.

C.

The commits clause. In prohibiting judicial candidates from “intentionally or

recklessly mak[ing] a statement that a reasonable person would perceive as committing

a judge or candidate to rule a certain way in a case, controversy, or issue that is likely

to come before the court,” Canon 5B(1)(c), the commits clause covers a range of

campaign statements. Some of those restrictions are legitimate. Others may not be.

And there is a “vast middle ground of uncertainty” between the two. Outlaw v. Airtech

Air Conditioning & Heating, Inc., 412 F.3d 156, 161 (D.C. Cir. 2005) (Roberts, J.).

In what seems to be its core sense, the clause, found in one form or another in 39

States, see App’x C, runs the gauntlet of strict scrutiny. By preventing candidates from

making “statement[s]” that “commit[]” them “to rule a certain way in a case [or]

controversy,” the clause secures a basic objective of the judiciary, one so basic that due

process requires it: that litigants have a right to air their disputes before judges who

have not committed to rule against them before the opening brief is read. See Caperton,

129 S. Ct. at 2266–67; Bracy v. Gramley, 520 U.S. 899, 904–05 (1997). Whatever else

a fair adjudication requires, it demands that judges decide cases based on the law and

facts before them, not based on “express . . . commitments that they may have made to

their campaign supporters.” Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 227 (7th

Cir. 1993). No one, Carey included, disputes that the Commonwealth has a compelling

interest in “prohibit[ing] candidates from promising to rule a certain way on cases.”

Carey’s Opening Br. at 14–15.

Nor does Carey dispute that the clause narrowly advances this interest—if, that

is, the clause is confined to campaign “commitments” with respect to “cases” or
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 25

“controversies.” So limited, the clause targets the kinds of interests White suggests the

States may protect, as judicial commitments with respect to cases and controversies

implicate not just a lack of open mindedness about the law but a lack of impartiality in

its most essential sense—a commitment to rule for one party over another. See White,

536 U.S. at 775–76 (“[I]mpartiality” in “the traditional sense” means “apply[ing] the law

to [one party] in the same way [one] applies it to any other party.”). The First

Amendment permits a State to limit speech when the Due Process Clause demands

nothing less.

But the canon does not stop there. It also prevents candidates from making

commitments about “issues.” A commitment to rule a certain way on “issues likely to

come before the court” covers a raft of electioneering stands, and it unmoors the

prohibition from “cases” or “controversies” and the party-specific connotations that

come with those terms. As White reminds us, “there is almost no legal or political issue

that is unlikely to come before a judge of an American court, state or federal, of general

jurisdiction.” White, 536 U.S. at 772 (emphasis added and quotation omitted). To make

matters worse, the commentary to the clause says that it covers the “appearance” of

making “issue”-related commitments. Canon 5B(1)(c), Cmt. 

Think back to White. How is a judicial candidate’s “announcement” of a position

on a legal “issue” during an election campaign not likely to create the “appearance” that

the candidate has “committed” to “rule a certain way” on the “issue”? And, if that is so,

how can this aspect of the canon survive White, given that it seems to ban what White

permits? These are good questions, but they prompt an even more basic one: what

exactly does the “issues” prohibition cover?

The clause contains a serious level-of-generality problem. At the broadest level

of meaning, it would seem to cover issue-related promises like these: “I commit to

follow stare decisis”; “I commit to follow an originalist theory of constitutional

interpretation” or for that matter “a living constitutionalist theory”; “I commit to a

purposive method of statutory interpretation” or for that matter a “textual” one; “I

commit to use (or not to use) legislative history”; or “I commit to be a rule-of-law
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 26

judge.” One might reasonably say that the clause covers all of these statements, as they

all relate to “issues” likely to come before a court and they all create an “appearance”

of commitment. Yet if that is what the clause means, it is hard to square with the

Constitution. A restriction on such promises does nothing to prevent the kind of

“impartiality” that the States have an interest in securing—defined as bias (or the

appearance of bias) toward particular parties or cases. See White, 536 U.S. at 776–77.

In a narrower sense, however, the “issues” prohibition may serve that interest.

In White itself, the Court contemplated that a State could prevent a candidate from

highlighting an “unbroken record of affirming convictions for rape” because such

statements would “exhibit a bias against parties,” namely against these types of criminal

defendants and in favor of the prosecutor in these types of appeals. 536 U.S. at 777 n.7;

id. at 800–01 (Stevens, J., dissenting). An interpretation of the clause confined to these

kinds of statements thus might advance a compelling state interest and do so narrowly.

In a facial challenge like this one, the ultimate question is one of overbreadth: 

Does the law “prohibit[] a substantial amount of protected speech both in an absolute

sense and relative to [the canons’] plainly legitimate sweep”? Connection Distrib. Co.,

557 F.3d at 336 (internal quotations omitted). To determine the extent of a law’s

illegitimate reach, one needs to know what it means, as “it is impossible to determine

whether a statute reaches too far without first knowing what the statute covers.” United

States v. Williams, 553 U.S. 285, 293 (2008).

That inquiry has not happened here—at least with respect to the “issues”

prohibition. In upholding this clause, the district court focused on its application to

“cases” and “controversies” and, to that extent, we agree with its analysis for the reasons

noted. But the district court did not explore the clause’s applicability to “issues,” the

array of settings in which that part of the clause and commentary may apply and the

tension of several of them with White. At oral argument, we asked the parties about the

point. Carey agreed that the commits clause would satisfy the First Amendment if the

clause did not contain an “issues” component to it, and saw the addition of the “issues”

language (together with the commentary) as having two impermissible effects: chilling
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 27

candidates’ free-speech rights to discuss their legal philosophies freely, and effectively

sidestepping White by prohibiting candidates from announcing their positions on legal

issues. The state defendants suggested that a narrowing construction of the “issues”

clause could save it.

Under these circumstances, discretion, to say nothing of respect for a co-equal

sovereign, is the better part of valor. At this point it is not clear what the

Commonwealth’s position on the term is, and the district court has not yet explored these

issues. If we remand this aspect of the case to the district court, the court will have that

chance. So too will the parties—particularly the state defendants, who retain

considerable authority over shaping the clause and the commentary that goes with it.

The state defendants may be able to obtain authority to remove the “issues” language;

they may be able to identify an acceptable narrowing construction of the “issues”

language along with a modification to the commentary; or they may suggest certification

to the Kentucky Supreme Court. Any of these options may spare the federal courts the

task of resolving a difficult constitutional question, and at a minimum they will give the

Commonwealth a first shot at addressing the question.

* * *

There is room for debate about whether the election of state court judges is a

good idea or a bad one. Yet there is no room for debate that, if a State opts to select its

judges through popular elections, it must comply with the First Amendment in doing so.

In this case, we have upheld some components of Kentucky’s Code of Judicial Conduct,

invalidated others and sought clarification of still one other provision. Through it all,

no one should lose sight of the reality that a judicial candidate’s right to engage in

certain types of speech says nothing about the desirability of that speech. The First

Amendment protects the meek and brazen, the “offensive” and agreeable. Texas v.

Johnson, 491 U.S. 397, 414 (1989). Today’s case is about the meaning of the First

Amendment, not about the virtues of some types of judicial campaign speech relative to

others.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 28

 V.

For these reasons, we affirm the district court’s judgment as to the party

affiliation and solicitation clauses and vacate its judgment as to the commits clause and

remand the case for further consideration of the meaning and validity of that clause.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 29

APPENDIX A

State Party Affiliation Clause

Kentucky “A judge or candidate shall not identify himself or herself as a member

of a political party in any form of advertising, or when speaking to a

gathering.” Ky. Code of Jud. Conduct, Canon 5A(2).

Partisan Election

Alabama Judges should refrain from inappropriate political activities, but “it is

realized that a judge or a candidate for election to a judicial office

cannot divorce himself or herself completely from political

organizations and campaign activities . . . .” Ala. Canons of Jud.

Ethics, Canon 7A(1).

Illinois “A judge or candidate may . . . at any time . . . identify himself or

herself as a member of a political party.” Ill. Code of Jud. Conduct,

Canon 7(B)(1).

Louisiana “A judge or a judicial candidate may at any time . . . identify himself

or herself as a member of a political party.” La. Code of Jud. Conduct,

Canon 7(C)(1).

New Mexico “A judge may . . . identify the political party of the judge . . . .” N.M.

Code of Jud. Conduct, Rule 21-700A(2)(b).

Pennsylvania Judges and candidates may “identify themselves as a member of a

political party . . . .” Pa. Code of Jud. Conduct, Canon 7A(2).

Texas “A judge or judicial candidate . . . may indicate support for a political

party.” Tex. Code of Jud. Conduct, Canon 5(2).

West Virginia “A judge or a candidate subject to public election may . . . at any time

. . . identify himself or herself as a member of a political party . . . .”

W. Va. Code of Jud. Conduct, Canon 5C(1).

Partisan Nomination and Nonpartisan Election

Michigan No comparable rule.

Ohio “A judicial candidate shall not . . . [,] [a]fter the day of the primary

election, identify himself or herself in advertising as a member of or

affiliated with a political party.” Ohio Code of Jud. Conduct, Rule

4.2(B)(4).

Nonpartisan Election

Arkansas “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a candidate of a political organization . . . .” Ark.

Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

Georgia No comparable rule.

Idaho No comparable rule.
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 30

Minnesota No comparable rule.

Mississippi “Judges . . . or candidates for such office, may . . . identify themselves

as members of political parties . . . .” Miss. Code of Jud. Conduct,

Canon 5C(1).

Montana “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a candidate of a political organization . . . .”

Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

Nevada “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a candidate of a political organization . . . .” Nev.

Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

North Carolina “A judge or a candidate may . . . identify himself/herself as a member

of a political party . . . .” N.C. Code of Jud. Conduct, Canon 7B(3).

North Dakota No comparable rule.

Oregon “[A] judicial candidate shall not knowingly . . . [p]ublicly identify the

judicial candidate, for the purpose of election, as a member of a

political party other than by registering to vote . . . .” Or. Code of Jud.

Conduct, JR 4-102(C).

Washington “Judges or candidates for election to judicial office shall not

. . . identify themselves as members of a political party . . . .” Wash.

Code of Jud. Conduct, Canon 7A(1)(e).

Wisconsin “No judge or candidate for judicial office or judge-elect may . . . [b]e

a member of any political party.” Wis. Code of Jud. Conduct, Rule

60.06(2)(b)(1). But see Siefert v. Alexander, ___ F.3d ___, No. 09-

1713 (7th Cir. June 14, 2010).

Retention Election

Alaska No comparable rule.

Arizona No comparable rule.

California No comparable rule.

Colorado No comparable rule.

Florida “A judicial candidate involved in an election or re-election . . . should

refrain from commenting on the candidate’s affiliation with any

political party or other candidate, and should avoid expressing a

position on any political issue. A judicial candidate attending a

political party function must avoid conduct that suggests or appears to

suggest support of or opposition to a political party, a political issue,

or another candidate.” Fla. Code of Jud. Conduct, Canon 7C(3).

Indiana “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a member or candidate of a political organization

. . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

Iowa No comparable rule.
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Kansas “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a candidate of a political organization . . . .” Kan.

Code of Jud. Conduct, Canon 4, Rule 4.1(B)(5); cf. Kan. Code of Jud.

Conduct, Canon 4, Rule 4.2(D)(1)(b) (Trial court judges subject to

partisan election may “identify” themselves “as a member of a political

party” “at any time”).

Maryland No comparable rule.

Missouri No comparable rule.

Nebraska No comparable rule.

Oklahoma No comparable rule.

South Dakota “A judge or candidate subject to public election may . . . at any time

. . . identify himself or herself as a member of a political party . . . .”

S.D. Code of Jud. Conduct, Canon 5C(1)(a)(ii).

Tennessee “A judge or a candidate subject to election may . . . at any time . . .

identify himself or herself as a member of a political party . . . .”

Tenn. Code of Jud. Conduct, Canon 5C(1)(a)(ii).

Utah “[A] judge or a judicial candidate shall not . . . publicly identify

himself or herself as a member of a political organization . . . .” Utah

Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

Wyoming No comparable rule.

Legislative Election

South Carolina No comparable rule. See S.C. Code of Jud. Conduct, Canon 5A(1).

Judges subject to “public election,” e.g., S.C. Code Ann. § 14-23-30

(probate judges), may reveal political party membership “at any time.”

S.C. Code of Jud. Conduct, Canon 5C(1)(a)(ii).

Virginia No comparable rule.

Appointment

Connecticut No comparable rule.

Delaware No comparable rule.

Hawaii No comparable rule.

Maine No comparable rule.

Massachusetts No comparable rule.

New Hampshire No comparable rule.

New Jersey No comparable rule.

New York “A sitting judge . . . [may] . . . identify himself or herself as a member

of a political party . . . .” N.Y. Code of Jud. Conduct, Canon 5A(1)(ii).

Rhode Island No comparable rule.
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Vermont No comparable rule.
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APPENDIX B

State Solicitation Clause

Kentucky “A judge or candidate for judicial office shall not solicit campaign

funds . . . .” Rules of the Supreme Court of Kentucky 4.300, Canon

5B(2).

Partisan Election

Alabama “A candidate is strongly discouraged from personally soliciting

campaign contributions.” Ala. Canons of Jud. Ethics, Canon 7B(4)(a).

Illinois “A candidate shall not personally solicit or accept campaign

contributions.” Ill. Code of Jud. Conduct, Canon 7B(2).

Louisiana “A judge or judicial candidate shall not personally solicit or accept

campaign contributions.” La. Code of Jud. Conduct, Canon 7D(1).

New Mexico “[C]andidates . . . may solicit contributions for their own campaigns”

but they “shall not accept any contribution that creates an appearance

of impropriety” and “shall not personally solicit or personally accept

campaign contributions from any attorney, or from any litigant in a

case pending before the candidate. . . . Campaign committees shall not

disclose to the judge or candidate the identity or source of any funds

raised by the committee.” N.M. Code of Jud. Conduct, Rules 21-

800A–F.

Pennsylvania “Candidates . . . should not themselves solicit or accept campaign

funds, or solicit publicly stated support . . . .” Pa. Code of Jud.

Conduct, Canon 7B(2).

Texas Judges and judicial candidates may accept “political contribution[s]”

during a specified period of time around the election. Tex. Elec. Code

Ann. § 253.153.

West Virginia “A candidate shall not personally solicit or accept campaign

contributions or personally solicit publicly stated support.” W. Va.

Code of Jud. Conduct, Canon 5C(2).

Partisan Nomination and Nonpartisan Election

Michigan “A judge should not personally solicit or accept campaign funds . . . .”

Mich. Code of Jud. Conduct, Canon 7B(2)(a).

Ohio “A judicial candidate shall not personally solicit or receive campaign

contributions.” Ohio Code of Jud. Conduct, Rule 4.4(A).

Nonpartisan Election

Arkansas “[A] judge or a judicial candidate shall not . . . personally solicit or

accept campaign contributions other than through a campaign

committee . . . .” Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).

Georgia “Candidates . . . may personally solicit campaign contributions and

publicly stated support.” Ga. Code of Jud. Conduct, Canon 7B(2).
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Idaho “A candidate shall not solicit campaign contributions in person. . . .

Except as required by law, a candidate’s judicial election committee

should not disclose the names of contributors to judicial campaigns

and judicial candidates and judges should avoid obtaining the names

of contributors to the judicial campaign.” Idaho Code of Jud. Conduct,

Canon 5C(2).

Minnesota “[A] judge or judicial candidate shall not . . . personally solicit or

accept campaign contributions,” except that he or she may “make a

general request for campaign contributions when speaking to an

audience of 20 or more people; sign letters . . . soliciting campaign

contributions . . . [and] personally solicit campaign contributions from

members of the judge’s family, from a person with whom the judge

has an intimate relationship, or from judges over whom the judge does

not exercise supervisory or appellate authority.” Minn. Code of Jud.

Conduct, Canon 4, Rules 4.1(A)(6), 4.2(B)(3).

Mississippi “A candidate shall not personally solicit or accept campaign

contributions or personally solicit publicly stated support.” Miss.

Code of Jud. Conduct, Canon 5C(2).

Montana Candidates may solicit. See Mont. Code of Jud. Conduct, Canon 4,

Rule 4.4, Cmt. 1 (permitting candidates “to solicit financial or in-kind

campaign contributions personally or to establish campaign

committees to solicit and accept such contributions”).

Nevada Candidates may solicit. See Nev. Code of Jud. Conduct, Canon 4,

Rule 4.4, Cmt. 1 (“A candidate may personally solicit or accept

campaign contributions . . . .”).

North Carolina “A judge or a candidate may . . . personally solicit campaign funds and

request public support from anyone for his/her own campaign . . . .”

N.C. Code of Jud. Conduct, Canon 7B(4).

North Dakota “A candidate shall not directly and personally solicit or accept

campaign contributions,” but “the candidate may orally solicit

contributions . . . in front of large groups or organizations” and “[t]he

candidate’s actual signature or a reproduction of the signature may

appear on letters or other printed or electronic materials distributed by

the committee which solicit contributions . . . from individuals or large

groups.” N.D. Code of Jud. Conduct, Canon 5C(2). Additionally,

“[t]he candidate must take reasonable measures to ensure the names

and responses, or lack thereof, of the recipients of solicitations for

contributions will not be disclosed to the candidate.” Id.

Oregon “[A] judicial candidate shall not knowingly . . . [p]ersonally solicit

campaign contributions in money or in kind . . . .” Or. Code of Jud.

Conduct, JR 4-102(D).

Washington “Candidates, including incumbent judges, for a judicial office that is

filled by public election between competing candidates shall not

personally solicit or accept campaign contributions.” Wash. Code of

Jud. Conduct, Canon 7B(2).
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Wisconsin “A judge, candidate for judicial office, or judge-elect shall not

personally solicit or accept campaign contributions.” Wis. Code of

Jud. Conduct, Rule 60.06(4). 

Retention Election

Alaska “A judge who is a candidate for retention in judicial office shall not

personally solicit or accept any funds to support his or her candidacy

. . . .” Alaska Code of Jud. Conduct, Canon 5C(3).

Arizona “A judge or a judicial candidate shall not . . . personally solicit or

accept campaign contributions other than through a campaign

committee . . . .” Ariz. Code of Jud. Conduct, Canon 4, Rule

4.1(A)(6).

California Candidates may solicit. See Cal. Code of Jud. Ethics, Canon 5A, Cmt.

(“[J]udges are neither required to shield themselves from campaign

contributions nor are they prohibited from soliciting contributions from

anyone including attorneys.”).

Colorado “If there is active opposition to the retention of a candidate judge . . .

any committee . . . may raise funds for the judge’s campaign, but the

judge should not solicit funds personally or accept any funds . . . .”

Colo. Code of Jud. Conduct, Canon 7B(2)(d).

Florida “A candidate, including an incumbent judge, for a judicial office that

is filled by public election between competing candidates shall not

personally solicit campaign funds . . . .” Fla. Code of Jud. Conduct,

Canon 7C(1).

Indiana “[A] judge or a judicial candidate shall not . . . personally solicit or

accept campaign contributions other than through a campaign

committee . . . .” Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(8).

Iowa No rule directly addressing personal solicitation. See Iowa Code of

Jud. Conduct, Canon 7B(2) (“A judge . . . whose candidacy has drawn

active opposition, may campaign in response thereto and may establish

committees of responsible persons to obtain publicly stated support

and campaign funds.”).

Kansas “A judicial candidate may also personally solicit or accept campaign

contributions.” Kan. Code of Jud. Conduct, Canon 4, Rule 4.4(A).

Maryland No comparable rule. See Md. Code of Jud. Conduct, Canon 5B,

Comm. Note (a prohibition on personal solicitation “may be too

restrictive”).

Missouri “A candidate, including an incumbent judge, for a judicial office . . .

shall not solicit in person campaign funds from persons likely to

appear before the judge. A candidate may make a written campaign

solicitation for campaign funds of any person or group, including any

person or group likely to appear before the judge.” Mo. Code of Jud.

Conduct, Canons 5B(2)–(3).
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Nebraska “A judicial candidate for retention election whose candidacy has

drawn active opposition shall not personally solicit or accept campaign

contributions . . . .” Neb. Code of Jud. Conduct, Canon 5(C)(2).

Oklahoma “A candidate should not personally solicit campaign contributions

. . . .” Okla. Code of Jud. Conduct, Canon 5C(2).

South Dakota “Candidates, including an incumbent judge, may personally solicit

campaign contributions . . . from individuals and organizations other

than political parties.” S.D. Code of Jud. Conduct, Canon 5C(2).

Tennessee “A candidate shall not personally solicit or accept campaign

contributions.” Tenn. Code of Jud. Conduct, Canon 5C(2)(a).

Utah “The judge shall not directly solicit or accept campaign funds . . . .”

Utah Code of Jud. Conduct, Canon 4, Rule 4.2(B)(2).

Wyoming “[T]he judge shall not solicit funds personally or accept any funds

. . . and . . . the judge shall not be advised of the source of funds raised

by the committees.” Wyo. Code of Jud. Conduct, Canon 4, Rules

4.2(B)(4)–(5).

Legislative Election

South Carolina “A candidate for appointment to judicial office . . . shall not solicit or

accept funds, personally or through a committee or otherwise, to

support his or her candidacy.” S.C. Code of Jud. Conduct, Canon

5B(1).

Virginia No comparable rule.

Appointment

Connecticut No comparable rule.

Delaware No comparable rule.

Hawaii No comparable rule.

Maine No comparable rule as to appointed judges. Candidates for “election

or reelection as a judge of probate shall not personally solicit or accept

campaign contributions or personally solicit stated support.” Maine

Code of Jud. Conduct, Canon 5(C).

Massachusetts No comparable rule.

New Hampshire No comparable rule.

New Jersey No comparable rule.

New York “A judge or candidate for public election to judicial office shall not

personally solicit or accept campaign contributions . . . .” N.Y. Code

of Jud. Conduct, Canon 5A(5); see also Cmt. 5.1 (“Canon 5 generally

applies to all incumbent judges . . . .”).
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Rhode Island “A candidate for appointment to judicial office . . . shall not solicit or

accept funds, personally or through a committee or otherwise, to

support his or her candidacy.” R.I. Code of Jud. Conduct,

Canon5B(1).

Vermont “A candidate for appointment to . . . state judicial office . . . shall not

. . . solicit or accept funds, personally or through a committee or

otherwise, to support the candidacy . . . .” Vt. Code of Jud. Conduct,

Canon 5B(4)(d).
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APPENDIX C

State Commits Clause

Kentucky “A judge or candidate for election to judicial office . . . shall not

intentionally or recklessly make a statement that a reasonable person

would perceive as committing the judge or candidate to rule a certain

way on a case, controversy, or issue that is likely to come before the

court . . . .” Rules of the Supreme Court of Kentucky 4.300 Canon

5B(1)(c).

Partisan Election

Alabama “A candidate for judicial office . . . [s]hall not make any promise of

conduct in office other than the faithful and impartial performance of

the duties of the office [and] shall not announce in advance the

candidate’s conclusions of law on pending litigation . . . .” Ala.

Canons of Jud. Ethics, Canon 7B(1)(c).

Illinois A “candidate for judicial office” shall not “make 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.” Ill. Code of Jud. Conduct, Canon 7A(3)(d)(i).

Louisiana A “judge or judicial candidate . . . shall not . . . with respect to 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 the office.” La.

Code of Jud. Conduct, Canon 7B(1)(d)(i).

New Mexico “A judge shall not, with respect to 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 the office.” N.M. Code of Jud. Conduct,

Rule 21-300B(11).

Pennsylvania “Candidates . . . should not . . . make statements that commit the

candidate with respect to cases, controversies or issues that are likely

to come before the court.” Pa. Code of Jud. Conduct, Canon 7B(1)(c).

Texas “A judge or judicial candidate shall not . . . make pledges or promises

of conduct in office regarding pending or impending cases, specific

classes of cases, specific classes of litigants, or specific propositions

of law that would suggest to a reasonable person that the judge is

predisposed to a probable decision in cases within the scope of the

pledge . . . .” Tex. Code of Jud. Conduct, Canon 5(1)(i).

West Virginia “A candidate for judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the court . . . .”

W. Va. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 39

Partisan Nomination and Nonpartisan Election

Michigan “A candidate . . . should not make pledges or promises of conduct in

office other than the faithful and impartial performance of the duties

of the office . . . .” Mich. Code of Jud. Conduct, Canon 7B(1)(c).

Ohio “A judge or judicial candidate shall not . . .[i]n 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.”

Ohio Code of Jud. Conduct, Rule 4.1(A)(7).

Nonpartisan Election

Arkansas “[A] judge or a judicial candidate 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.”

Ark. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).

Georgia “Candidates . . . shall not make statements that commit the candidate

with respect to issues likely to come before the court . . . .” Ga. Code

of Jud. Conduct, Canon 7B(1)(b).

Idaho “A candidate for judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the court . . . .”

Idaho Code of Jud. Conduct, Canon 5A(4)(d)(ii).

Minnesota “[A] judge or a judicial candidate 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.”

Minn. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(11).

Mississippi “A candidate for judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the court . . . .”

Miss. Code of Jud. Conduct, Canon 5A(3)(d)(ii).

Montana “[A] judge or a judicial candidate 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.”

Mont. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(12).

Nevada “[A] judge or a judicial candidate 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.”

Nev. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).

North Carolina No comparable rule. See N.C. Code of Jud. Conduct, Canon 7C.

Judges should “abstain from public comment about the merits of a

pending proceeding.” Id., Canon 3A(6).
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North Dakota “A candidate for a judicial office . . . shall not . . . with respect to

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 the office . . . .”

N.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).

Oregon “[A] judicial candidate shall not knowingly . . . [m]ake pledges or

promises of conduct in office that could inhibit or compromise the

faithful, impartial and diligent performance of the duties of the office

. . . .” Or. Code of Jud. Conduct, JR 4-102(B).

Washington “Candidates, including an incumbent judge, for a judicial office

. . . should not . . . make statements that commit or appear to commit

the candidate with respect to cases, controversies or issues that are

likely to come before the court . . . .” Wash. Code of Jud. Conduct,

Canon 7B(1)(c)(ii).

Wisconsin “A judge, judge-elect, or candidate for judicial office shall not make

or permit or authorize others to make on his or her behalf, with respect

to cases, controversies, or issues that are likely to come before the

court, pledges, promises, or commitments that are inconsistent with the

impartial performance of the adjudicative duties of the office.” Wis.

Code of Jud. Conduct, Rule 60.06(3)(b).

Retention Election

Alaska “A candidate for judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate to a particular view or

decision with respect to cases, controversies or issues that are likely to

come before the court . . . .” Alaska Code of Jud. Conduct, Canon

5A(3)(d)(ii).

Arizona “A judge or a judicial candidate 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.”

Ariz. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(10). 

California “A candidate for election or appointment to judicial office shall not . . .

make statements to the electorate or the appointing authority that

commit the candidate with respect to cases, controversies, or issues

that could come before the courts . . . .” Cal. Code of Jud. Ethics,

Canon 5B.

Colorado “A judge who is a candidate for retention in office . . . should not make

pledges or promises of conduct in office other than the faithful and

impartial performance of the duties of the office [or] announce how the

judge would rule on any case or issue that might come before the judge

. . . .” Colo. Code of Jud. Conduct, Canon 7B(1)(c).

Florida “A candidate for a judicial office . . . shall not . . . with respect to

parties or classes of parties, 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 the office . . . .” Fla. Code of Jud. Conduct,

Canon 7A(3)(e)(i).
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Indiana “[A] judge or a judicial candidate 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.”

Ind. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(13).

Iowa “A judge who is a candidate for retention in judicial office . . . [s]hould

not, with respect to 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 the office.” Iowa Code of Jud. Conduct, Canon 7B(1)(e).

Kansas “A judge or a judicial candidate 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.”

Kan. Code of Jud. Conduct, Canon 4, Rule 4.1(A)(6).

Maryland “A judge who is a candidate for election or re-election to or retention

in a judicial office . . . with respect to a case, controversy or issue that

is likely to come before the court, shall not make a commitment,

pledge, or promise that is inconsistent with the impartial performance

of the adjudicative duties of the office . . . .” Md. Code of Jud.

Conduct, Canon 5B(1)(d).

Missouri “A candidate . . . shall not make pledges or promises of conduct in

office other than the faithful and impartial performance of the duties

of the office . . . .” Mo. Code of Jud. Conduct, Canon 5B(1)(d).

Nebraska “A candidate for a judicial office . . . [s]hall not . . . make statements

that commit or appear to commit the candidate with respect to cases,

controversies, or issues that are likely to come before the court . . . .”

Neb. Code of Jud. Conduct, Canon 5(A)(3)(d)(ii).

Oklahoma “A candidate for judicial office . . . should not . . . with respect to

cases, controversies, or issues that are likely to come before the court,

make pledges, promises or commitments that are inconsistent with

impartial performance of the adjudicative duties of the office . . . .”

Okla. Code of Jud. Conduct, Canon 5A(3)(d)(i).

South Dakota “A candidate for a judicial office . . . shall not . . . with respect to

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 the office . . . .”

S.D. Code of Jud. Conduct, Canon 5A(3)(d)(i).

Tennessee “A candidate for a judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies, or issues that are likely to come before the court . . . .”

Tenn. Code of Jud. Conduct, Canon 5A(3)(d)(ii).

Utah “[A] judge or a judicial candidate shall not . . . make pledges,

promises, or commitments other than the faithful, impartial and

diligent performance of judicial duties.” Utah Code of Jud. Conduct,

Canon 4, Rule 4.1(A)(11).
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Wyoming “A judge who is a candidate for retention in office shall . . . not make

pledges or promises of conduct in office other than the faithful and

impartial performance of the duties of the office [or] announce how the

judge would rule on any case or issue that might come before the judge

. . . .” Wyo. Code of Jud. Conduct, Canon 4, Rule 4.2(A)(5).

Legislative Election

South Carolina “A candidate for a judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the court . . . .”

S.C. Code of Jud. Conduct, Canon 5A(3)(d)(ii).

Virginia No comparable rule.

Appointment

Connecticut No comparable rule.

Delaware No comparable rule.

Hawaii “[A] judge 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.” Haw. Code of Jud.

Conduct, Canon 4, Rule 4.1(a)(13).

Maine “A candidate for appointment to judicial office . . . shall not . . . make

pledges or promises of conduct in office other than the faithful and

impartial performance of the duties of the office [or] make statements

that commit or appear to commit the candidate with respect to cases,

controversies, or issues that are likely to come before the court . . . .”

Maine Code of Jud. Conduct, Canon 5(B).

Massachusetts No comparable rule.

New Hampshire “A candidate for judicial office . . . shall not . . . with respect to 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 the office . . . .”

N.H. Code of Jud. Conduct, Canon 5B(1)(b)(i).

New Jersey No comparable rule.

New York “A judge or a non-judge who is a candidate for public election to

judicial office shall not . . . with respect to cases, controversies or

issues that are likely to come before the court, make commitments that

are inconsistent with the impartial performance of the adjudicative

duties of the office . . . .” N.Y. Code of Jud. Conduct, Canon

5A(4)(d)(ii).

Rhode Island “A candidate for a judicial office . . . shall not . . . make statements that

commit or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the court . . . .”

R.I. Code of Jud. Conduct, Canon 5A(3)(d)(ii).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 43

Vermont “A candidate for appointment to . . . state judicial office . . . shall not

make statements that commit or appear to commit the candidate with

respect to cases, controversies, or issues that are likely to come before

the court . . . .” Vt. Code of Jud. Conduct, Canon 5B(4)(b).
Nos. 08-6468/6538 Carey v. Wolnitzek, et al. Page 44

____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

____________________________________________________

WISEMAN, District Judge, concurring in part and dissenting in part. I concur

in the judgment of affirmance of the District Court on the party affiliation and

solicitation clauses, as well as affirmance of the “cases and controversies” portion of the

commits clause. I would go further and affirm the District Court in upholding the entire

commits clause, including the issues portion. The majority’s concern with an overly

broad interpretation of what constitutes a commitment to vote a certain way or bias

toward a party based on campaign promises regarding an “issue,” amounts to the

construction of a straw man. I believe a candidate for judge knows exactly when she is

making a commitment, or giving the appearance of such a commitment. I believe the

same is true of the enforcer of the canons. Is there any doubt about commitment when

a candidate professes to believe that life begins at conception? Is there any committed

bias in favor of a potential party when a candidate for judge states a “strong belief in the

right to keep and bear arms?” Maybe the definition of White-permitted issue

commitments is like the definition of pornography. Anyone with common sense knows

the portent of a campaign commitment when he hears it. Yet by remand we are asking

the District Court to do what the Supreme Court could not do in White and we are unable

to do here.

Maintenance of public confidence that a litigant will receive an unbiased hearing

in the courts is as compelling an interest as any possessed by the Commonwealth of

Kentucky. The canon here appropriately addresses that interest. Definitional

disagreements, if they arise, can be addressed when they arise.

I respectfully dissent from the holding of the majority vacating the District Court

in respect to the commits clause.