Judges and the Code of Judicial Conduct - Political Activity after Seifert v. Alexander (Seventh Circuit decision)

By John DiMotto

In my first blog on the interplay between the Wisconsin Code of Judicial Conduct and political activity, I noted that the Code provisions against a judge being a member of a political party, against a judge from endorsing a candidate in a partisan election and against a judge from directly soliciting campaign contributions had been ruled unconstitutional by United States District Court Judge Barbara Crabb in Seifert v. Alexander. I also noted that the case was before the Seventh Circuit and a decision was forthcoming. It is no longer forthcoming, it is here.

Yesterday, in a 2-1 decision, the Seventh Circuit Court of Appeals affirmed in part and reversed in part Judge Crabb's decision in Seifert v. Alexander. The Court held:

1) The ban on a judge joining a political party was unconstitutional.

2) The ban on a judge endorsing a candidate in a partisan election was constitutional.

3) The ban on a judge directly soliciting campaign contributions was constitutional.

With respect to the ban on a judge joining a political party, the Court held that it was not narrowly tailored to serve a compelling state interest. The Court stated "...the partisan affiliation ban acts to prohibit his [Seifert's] speech on both his political views and his qualifications for office. Therefore, the clause is a content-based restriction on speech subject to strict scrutiny." The Court further stated that "the state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy. Nor can casting the argument in terms of the 'appearance of bias' save it - because 'avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the appearance of that type of impartiality can hardly be a compelling state interest either."The Court went on to state that the fact that a judge is associated with a political party would not implicate concerns of bias for or against a party unless the judge were in some way involved in the case beyond simply being a member of a political party. "Without some specific, individualized relationship, the affiliation between a judge who is a member of a political party and other members of that political party is simply too diffuse to make it reasonable to assume that the judge will exhibit bias in favor of his fellow party members."

With respect to the ban on a judge being allowed to endorse a partisan candidate for election, the Court found that an endorsement is a different from of speech. It held that a balancing approach, not strict scrutiny applies. It found that endorsements involve a judge's entry into the political arena for the candidate not for the judge and that this implicates potential abuse of the prestige of office. Thus, the state has the right to place such a restriction on endorsements.

With respect to the ban on a judge directly soliciting campaign contributions, the Court indicated that this is a finance regulation and the state has a compelling interest in preventing corruption or the appearance of corruption in elections via such regulations. The Court stated "Wisconsin's personal solicitation ban serves the anti-corruption rationale articulated in Buckley and acts to preserve judicial impartiality. A contribution given directly to a judge, in response to a judge's personal solicitation of that contribution, carries with it both a greater potential for a quid pro quo and a greater appearance of a quid pro quo than a contribution given to the judge's campaign committee at the request of someone other than the judge, or in response to a mass mailing sent above a judge's signature." The Court concluded "...the solicitation ban is drawn closely enough to the state's interest in preserving impartiality and preventing corruption to be constitutional."

While this ruling allows judges to join political parties, I do not intend to do so. I believe that the ban on joining a political party serves the public and I ran for judge 20 years ago to serve the public. As I have stated previously, judges must be above the fray. Judges must be separate from "politics." When I decided to run for judge, I made the decision to "leave" partisan politics. It is a choice I made - one that I have never regretted.

Judge Seifert has been quoted in the media as saying he intends to seek review by the SCOTUS. so, for now, this matter is "To Be Continued."