For many years, fairly strict limits were imposed on judicial candidates by the Code of Judicial Conduct. Before 2002, Canon 7 of the Code of Judicial Conduct prohibited judicial candidates from announcing their views on disputed issues that could come before the court and from making pledges or promises about how they would act on the bench if elected.
The 2002 United States Supreme Court decision in Minnesota v. White somewhat relaxed these limits by allowing judicial candidates to "announce" their views on issues that could come before the courts. Following the White decision, many states, including Pennsylvania, revised their codes of judicial conduct. In its amendment of the Code of Judicial Conduct, the Pennsylvania Supreme Court deleted the "announce clause," but rewrote Canon 7 to prohibit candidates from making statements "committing or appearing to commit" them with respect to cases or issues likely to come before them. In addition, candidates still were prohibited from making pledges or promises about how they would act on the bench.
In May 2007, the day before the primary election, however, a federal judge temporarily banned enforcement of these prohibitions, meaning that judicial candidates can make promises. While future proceedings will determine if the ban becomes permanent, for now it seems that the fall judicial elections could be different from any before.
How These Changes Have Affected Pennsylvania Judicial Elections
PMC prepared a report discussing the effects of the White decision on the 2005 Supreme Court election. As we anticipated, candidates were pressed to express their opinions on all kinds of "hot button" issues. Many organizations began submitting questionnaires to candidates, seeking their opinions on specific issues. In the past, questionnaires to candidates had generally come from bar associations and focused on the candidate's professional experiences and community service. With the easing of the speech restrictions, however, many more groups began to develop questionnaires, seeking information on which to base candidate endorsements and appeals to voters.
Some candidates embraced the new freedom to speak, while others preferred to adhere to the old canons. Much attention was paid to candidates' decisions to speak or not and their positions on issues like abortion, tort reform and criminal sentencing. While this is expected and appropriate in elections for President, Senators and other representative officials, it is problematic in judicial elections because judges are not supposed to represent particular constituencies or viewpoints, and actually swear or affirm not to prejudge cases. That is, we entrust judges to decide cases according to the facts and the law, despite their personal beliefs about the issues that come before them. Judges should not be elected or selected because they have espoused particular opinions about controversial issues, nor should voters expect that those opinions will determine how judges will rule from the bench. Opening the door to discussion and debate about a candidate's opinions about such issues is dangerous. The danger lies not in arming citizens with information about prospective judges, but in revealing information that should not play a role in the judicial selection process.
PMC believes that individuals who wish to serve as judges should be evaluated based on their qualifications, experience, reputation and temperament, not on their personal beliefs about controversial issues. Indeed, when judges are called upon to decide cases, they are required to put aside their personal views and render judgment based on the existing law (legal precedent) and the specific facts.
The judicial canons as they existed prior to the White case enabled would-be judges to separate their personal beliefs from the electoral contest. The amended canons, while still limiting in some ways what candidates may say, open the door to detailed examination of, discussion about, and campaigning based on a candidate's personal beliefs. PMC outlined many of these arguments more fully in the amicus curiae brief it submitted to the United States Supreme Court in the White case.
On-going Changes to the Canons -- Where We Stand Now
In spring 2007, just before the primary elections, a lawsuit was filed to enjoin the enforcement of rules of conduct prohibiting candidates from making pledges or promises about how they would rule in future cases and committing or appearing to commit themselves with regard to disputed issues likely to come before the courts. The lead plaintiff in the suit, the Pennsylvania Family Institute, had presented questionnaires to judicial candidates throughout the Commonwealth and was frustrated by many candidates' refusal to answer questions because of the rules of conduct.
On May 14, 2007 the day before the primary election, Judge Marvin Katz of the Eastern District of Pennsylvania granted a temporary injunction barring enforcement of the clauses of Canon 7 which prohibit candidates from making pledges or promises about what they will do once on the bench and from making statements which commit or appear to commit the candidate with respect to cases, controversies or issues likely to come before the court. Read Judge Katz's opinion granting the preliminary injunction and denying the motion to dismiss. A similar suit was brought in the federal court for the Middle District of Pennsylvania by Democracy Rising PA. In that case, Judge Christopher Conner denied the requested injunction, ruling that in light of Judge Katz's ruling, the request was moot.
On October 16, 2007, Judge Katz of the Eastern District of Pennsylvania issued an opinion and order in the Pennsylvania Family Institute case granting summary judgment in favor of the defendants and vacating the preliminary injunction barring enforcement of the judicial canons that he entered just before the May primary elections.
The Judge found that the Defendants offered a narrow construction of the canons that would not violate the First Amendment. Thus, the canons governing candidate speech will remain in effect, but will be construed to prohibit only a limited category of speech: candidates now will be prohibited only from making pledges, promises or commitments to adjudicate particular results if elected; that is, to promise a particular outcome once they reach the bench. Other types of pledges, promises or commitments, including statements about a candidates' general opinions about certain disputed issues or views about certain types of cases will not be deemed to violate the canons. In addition, no longer will candidates be prohibited from making statements that "appear to commit" them with regard to a particular issue.
The Court included in its opinion a statement from the Judicial Conduct Board explaining the difference between permissible pledges and prohibited pledges. Although a candidate could not promise to sentence harshly all defendants convicted for driving under the influence, the candidate could express his or her belief about being "tough on crime." In addition, the Court adopted the Judicial Conduct Board's view that candidates could permissibly answer questionnaires like the one posed by the Pennsylvania Family Institute that asked for candidates to express their opinions on controversial issues such as abortion, school prayer and gay marriage.
The "appear to commit" language was stricken for vagueness. This means that the prohibition applies only to pledges, promises and/or commitments, not language that only "appears" to commit a candidate to a position.
On March 17, 2008, the Pennsylvania Supreme Court amended Canon 7B(1)(c), essentially codifying Judge Katz's decision. The amendment deletes the words "appear to commit" from the canon, which now reads: "Candidates . . . should not make pledges or promises of conduct in offic other than the faithful and impartial performance of the duties of the office; makes statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent their identify, qualificiations, present position, or other fact."
Parties to the Pennsylvania Family Institute case assert that there may be further litigation. PMC will continue to post updates about any further developmetns or changes to the Canons.
Other states are facing similar changes as judicial candidates are organizing to challenge
provisions of judicial ethics rules that bar candidates from participating in voter guides, surveys and certain political activity. The candidates frame the issue as a Constitutional question, aruging that the rules infringe on their First Amendment right to freedom of speech.
The Judicial Accountability Project, a program of the James Madison Center for Free Speech, recently filed suit in Indiana on behalf of two judicial candidates who wish to answer questions in a survey from Indiana Right to Life. The questions concerned policies and court decisions related to contentious social issues such as abortion and euthanasia. A Preliminary Advisory Opinion issued by the state's Commission on Judicial Qualifications warned judicial candidates against "broad statements on disputed social and legal issues," saying thosecandidates ran the risk of violating the Indiana Code of JudicialConduct. Read more here and here.
