February 2007 Nevada Lawyer

The End of Nevada’s Ban on Partisan Judicial Campaign Speech

By Tuan Samahon

Consider the following hypothetical: Carl Candidate is a seasoned Nevada lawyer. He has grown weary of billable hours and is now looking for a public-spirited change of pace: donning the black robes of a Nevada state district judge. But becoming a judge in Nevada is not usually a matter of applying to an appointing authority. Nevada directly elects its judges. If Carl is to judge, he will have to persuade the voters to elect him. He ponders seeking the Nevada Republican Party’s endorsement.

Carl’s law partner quickly reminds him that Nevada prohibits partisan judicial campaigns by way of several different mechanisms. Most immediately important to Carl as a matter of professional responsibility are the requirements of the Nevada Code of Judicial Conduct, incorporated by reference into the Nevada Rules of Professional Conduct for those attorneys seeking judicial office.1

The Nevada Supreme Court prohibits candidates for judicial office from identifying their partisan affiliation. Canon 5C(1)(a)(ii) of the Nevada Code of Judicial Conduct, adopted in 1991 and subsequently liberalized, provides that a candidate for judicial office subject to public election cannot, unless requested, “identify himself or herself as a member of a political party.” The Commentary to Canon 5C(1) elaborates what this requirement entails in the context of campaign advertisement.

[I]t is impermissible for [judges and candidates] to align themselves with

a political party or to affiliate themselves with a political party in campaign

literature, mailings, billboards, yard signs, radio and television advertising,

or the like. Nonetheless, judges and candidates may place their campaign

materials on a table designated for the distribution of literature at any gathering

regardless of whether the table is sponsored by a particular political party.2 (emphasis added).

This prohibition embodies a “don’t tell ‘till asked” approach to partisan identification. It bans mere statements of party affiliation, even if the candidate does not pledge or promise to maintain that political affiliation post-election. (Indeed, a separate “pledges or promises” clause in the code addresses that type of speech.)

If Carl were to announce his political affiliation in violation of Canon 5C(1)(a)(ii), he could be subject to suspension and disbarment, among other penalties.3 Accordingly, he proceeds cautiously. He is aware of the Standing Committee on Judicial Ethics and Election Practice’s 1998 published judicial election decision that squarely rejected the claim that the canon abridged judicial candidates’ First Amendment rights,4 but wonders whether the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White has changed the committee’s view. He asks the Standing Committee on Judicial Ethics and Election Practices for an advisory opinion as to whether a hypothetical campaign advertisement identifying himself as a “member of the Nevada Republican Party” would precipitate disciplinary enforcement. The standing committee answers “yes.” The proposed language is prohibited under the published decision’s interpretation of the canon.

Carl’s Civil Action

Carl, undaunted, decides to test the constitutionality of the canon by litigation.5 Fearing the Nevada Supreme Court may not be receptive to a challenge to its own rule,⁶

he files a declaratory action in U.S. District Court seeking prospective injunctive relief against the canon’s enforcement.7 Carl’s theory: Canon 5C(1)(a)(ii), the keystone in the nonpartisan judicial election regime, violates the First and Fourteenth Amendments of the U.S. Constitution.

To understand Carl’s argument, it is helpful to review the case on which he will principally rely. In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the Supreme Court used strict scrutiny to strike down an “announce” clause in the Minnesota Code of Judicial Conduct. That content-based regulation prevented the declaratory plaintiff from “announc[ing] his or her views on disputed legal or political issues.”8 To justify this regulation, Minnesota cited two compelling state interests advanced by its judicial speech codes: (1) preserving the state judiciary’s impartiality in order to protect litigants’ due process rights; and (2) preserving the appearance of that impartiality to preserve public confidence in the judiciary.9

White attempted to put flesh on the bones of these proffered state interests in actual and apparent “impartiality” by examining three alternative conceptions of what constitutes “impartiality.” First, if “impartiality” were understood as a judge being no respecter of parties, then the “announce” clause would not be narrowly tailored. It regulated judicial speech about disputed legal or political issues, not speech about parties.1⁰ Therefore, White held the Minnesota regulation was not narrowly tailored.

Second, if the state’s interest in “impartiality” was an interest in judges who lacked any preconception in favor of or against a particular legal or political view, then White concluded there would be no compelling state interest. Judges are “not tabula rasa.”1¹ It is virtually impossible to find a judge who does not have any preconception about the law. The state’s interest in pursuing something fictional—the judicial equivalent of a unicorn or Bigfoot-- is not compelling.12

Finally, White considered the possibility that “impartiality” may be interpreted as protecting a judge’s open-mindedness as to disputed legal issues, i.e. not “an equal chance” for a party to win “but at least some chance.”13 White rejected the claim that Minnesota was trying to pursue this interest without addressing whether this interest was compelling. The court’s skepticism arose from the clause’s underinclusiveness and incompatibility with other code provisions. The code allows a judge to speak in many other contexts; judicial campaign speech is only a small subset of public judicial speech. For example, the code permits a judge to articulate his or her views on disputed legal issues outside adjudication’s context, such as in academic commentary. It also permits a judge, after he or she is elected, to announce his or her views on a legal issue right up until the point that a disputed legal issue becomes pending litigation. Given the number of instances in which the code permits a judge to speak in a manner undermining its purported compelling interest, the court concluded that Minnesota was not attempting to advance this third conception of “impartiality.”

Carl will argue that White requires the U.S. District Court to strike down Canon 5C(1)(a)(ii). The prohibition, like the “announce” clause in White, is a content-based regulation of core political speech. It forbids Carl’s partisan affiliating words, “member of the Nevada Republican Party.” As a content-based regulation, the District Court will subject it to strict scrutiny review. Carl acknowledges that White did not address Canon 5C(1)(a)(ii)’s exact prohibition-- candidates identifying their partisan affiliation rather than their positions on issues, but he argues forcefully that White’s principles require the same result: the canon should be struck down under strict scrutiny.

Why? Carl’s proposed campaign ad is next-of-kin to the speech protected in White. The “announce” clause prohibited a candidate for nonpartisan elected judicial office from announcing “his or her views on disputed legal or political issues.”1⁴Similarly, Carl’s campaign ad communicates his views on disputed legal and political issues but does so by way of his party identification. His party identification serves as a convenient and efficient shorthand for a constellation of views on disputed legal and policy issues, such as the appropriate size and role of government, abortion and stem cell research, same-sex marriage, and the death penalty. Thus, statements on issues and statements on affiliation referencing views on these issues are legally indistinguishable. Consider that under White it would be permissible for Carl’s advertisement to list the substance of his party’s individual issue planks one after another, each plank prefaced with the announcing words “This I believe”-- provided Carl does not identify the collection of individual statements as the party’s platform. That such an advertisement announcing his position on issues would be permitted while an advertisement merely announcing his political affiliation would not be permitted suggests that any distinction between the two elevates form over substance in a way that will not withstand strict scrutiny.

Likely, then, the First Amendment analysis for 5C(1)(a)(ii) will follow closely that for the announce clause. Under strict scrutiny, the state of Nevada must establish that Canon 5C(1)(a)(ii) is (1) narrowly tailored to (2) advance Nevada’s compelling interest. Under any of these three conceptions of “impartiality” assessed in White, Carl wins. First, the identification of Carl’s membership in a political party is not speech about particular litigants before the court, but speech about issues that a political party may endorse.15 Accordingly, Nevada’s prohibition is not narrowly tailored.

Second, White rejected the notion that there is a compelling state interest in judges who lack any preconception in favor of or against a particular legal or political view. Again, given that Carl’s party affiliation is merely an aggregation of probable legal or political views, Nevada will not demonstrate a compelling state interest.

Finally, the state’s proffered interest in protecting a judge’s actual or apparent open-mindedness is so underinclusive relative to that goal as to raise questions whether it is merely pretext. Consider the many instances in which Nevada judges may speak their partisan minds: judges may belong to political parties;16 they may tell voters their partisan affiliation when asked;17 they may attend political gatherings;18 and they may contribute to political parties.19 Given that the code permits a judge to affiliate with a political party in a manner that undermines actual or apparent open-mindedness (at least to the same extent as placing “Republican” or “Democrat” on a campaign ad), the District Court would likely conclude, as White did analogously, that Nevada was not attempting to advance this third conception of “impartiality.” Thus, Canon 5C(1)(a)(ii) fails strict scrutiny under each conception of “impartiality.”

White’s tremors have already begun to be felt in a way that predicts how Carl’s challenge to Canon 5C(1)(a)(ii) may fare in the federal courts. On remand and subsequent appeal in White, the Eighth Circuit struck down other challenged Minnesota prohibitions, including most significantly, a ban against a judge providing party affiliation in campaign advertising.20 That prohibition provided “a judge or a candidate for election to judicial office shall not: (a) identify themselves as members of a political organization, except as necessary to vote in an election.”21 The circuit found that, as with the “announce” clause, each proffered state interest for the ban on partisan affiliation was not compelling, not narrowly tailored to achieve its purpose, or not Minnesota’s sincere interest. Certainly, Carl will cite this persuasive authority.

If the District Court remains unmoved, Carl may cite an unlikely ally. A body of the American Bar Association, which prepared the Model Code on which Nevada Canon 5C(1)(a)(ii) is based, no longer stands behind it post-White. The ABA’s Joint Commission to Evaluate the Model Code of Judicial Conduct recently presented a proposed revision of the code for approval by the ABA House of Delegates in February 2007. The proposal eliminates Canon 5 and renumbers and incorporates its provisions into a new Canon 4. Although the model code prohibits a candidate for nonpartisan judicial office from identifying himself or herself as a “candidate of a political organization,”22 it now permits that judge to identify himself or herself as a member of a political organization.23 The drafting notes explain the reason for this change: “a provision prohibiting such identification would not likely survive constitutional scrutiny.”24

The U.S. District Court is persuaded. It declares the canon unconstitutional and enjoins its enforcement on cross-motions for summary judgment. The Ninth Circuit affirms; the Supreme Court denies cert. Carl and his rival advertise their partisan affiliations in time for the 2008 election cycle.

White and the prospect of a future case filed by a “Carl Candidate” have important implications for Nevada’s long-term planning. The blue ribbon Article 6 Commission has commenced a comprehensive review of Nevada’s judicial system and will recommend ways to improve it. Doubtlessly, the commission will consider the interface of judicial selection and judicial ethics, including whether Nevada ought to retain the status quo of nonpartisan judicial election.

In this context, the members of the commission should recognize that any recommendation to elect judges could have unintended consequences. Post-White, judicial elections will become partisan judicial elections in the sense that they will (eventually) feature partisan judicial speech. The prospect of this partisanship may change the calculus of what the commission would recommend. For some, the prospect of partisan election speech may make other methods of selection more desirable by comparison. Accordingly, the Author offers this modest advice to the members of the commission: when weighing alternative means of judicial selection, recognize the possibility that supporting nonpartisan judicial election may be tantamount to supporting judicial elections with partisan speech, if/when litigants successfully challenge the code.

To be sure, there are many impediments to completely partisan judicial elections in Nevada beyond Canon 5C(1)(a)(ii). This short article does not elaborate Carl’s subsequent challenges to, among other provisions, the “pledge, promise, or commit clauses,” of the Nevada Code of Judicial Conduct;25 the prohibition on partisan nomination of candidates for judicial office;26 or Nevada’s ballot ban on party identification in nonpartisan races and the complementary requirement that the word “nonpartisan” appear after each candidate’s name.27 These other issues may be closer calls than the ban on partisan affiliation.28 They, however, are left for another day. In the meantime, expect to see candidates for state judicial office challenging the Nevada Code of Judicial Conduct in a federal courthouse near you.

Tuan Samahon is an Associate Professor at the William S. Boyd School of Law where he teaches civil procedure and federal courts and studies judicial selection. Prior to joining the law faculty, Tuan was an associate with Covington & Burling and clerked for U.S. Circuit Judge Jay S. Bybee and U.S. District Judge Raymond Jackson. Special thanks to Kelly Dove, Mike Dimino, Lindsey Samahon, David Sarnowski, Jeff Stempel, Ariel Stern, and the editorial board of the Nevada Lawyer for their feedback. The views expressed in this article are mine alone. Comments: tuan.samahon@unlv.edu.

2 The Standing Committee on Judicial Ethics and Election Practices recently advised that candidates for judicial office could place their names on political parties’ websites for the purpose of linking to candidates’ websites, where the campaign materials of the candidates are located. See Propriety of a Judge or Judicial Candidate Placing His or Her Name on the Website of a Political Party, No. JE06-006 (Nev. Standing Comm. Jud. Ethics & Election Pracs. July 23, 2006) (advisory opinion), available at http://judicial.state.nv.us/je060063new.htm. The opinion suggested the hyperlinks are the digital extension of candidates placing their literature on political parties’ tables. Id.

4 In re: Complaint Publicly Disclosing Political Party Affiliation During Race for Judicial Office - Violation of Canon 5C(1)(a)(ii), Published Dec. No. 98-1 (Nev. Standing Comm. Jud. Ethics & Election Pracs. Aug. 18, 1998), available at http://judicial.state.nv.us/ scjeepdecision9813new.htm.

5 Alternately, contentious Carl could have put on his ADR cap and proposed that the standing committee recommend a code amendment to the Nevada Supreme Court. Stand. Comm. Jud. Ethics & Election Pracs. R. 6.

6 But cf. Order Declining to Amend Canon 5C(2) of the Nevada Code of Judicial Conduct, ADKT No. 397 (Nev. Dec. 5, 2006) (declining on First Amendment grounds to amend the code to include additional limitations on personal fundraising by candidates for judicial office).

7 Nonetheless, Carl carefully avoids violating the code prior to the resolution of his federal declaratory action to prevent parallel state enforcement proceedings that could jeopardize his federal forum. See, e.g., Spargo v. State Comm’n on Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003) (abstaining under Younger from exercising jurisdiction).

8 536 U.S. 765, 761 (citing Minn. Code of Judicial Conduct, Canon 5A(3)(d)(i) (2000)).

2⁰See Republican Party v. White, 416 F.3d 738, 745 (8th Cir. 2005) (en banc), cert. denied 126 S.Ct. 1165 (2006).

2² Report of the A.B.A. Joint Commission to Evaluate the Model Code of Judicial Conduct 141 (Nov. 2006). Proposed Canon 4.2(C)(1) permits candidates in partisan elections to identify themselves as a candidate of a political organization. Id. at 153.

26 Nev. Rev. Stat. §§ 293.0675, 293.195 (2005). The Ninth Circuit has doubted the constitutionality of analogous prohibitions on partisan endorsements. Cf. Geary v. Renne, 911 F.2d 280, 286 (9th Cir. 1990) (en banc) (striking down bans on partisan endorsement), vacated on other grounds, 501 U.S. 312 (1991). See also California Democratic Party v. Lungren, 919 F. Supp. 1397, 1405 (N.D. Cal. 1996) (striking down prohibitions on partisan endorsement).

27 Nev. Rev. Stat. §§ 293.195, 293.267(3)(b) (2005). Compelling the word “nonpartisan” to appear after a candidate’s name may mislead or deceive voters to the extent the candidate may affiliate privately with a political party.

28 See, e.g., In re Watson, 794 N.E.2d 1 (N.Y. 2003) (upholding a “pledges or promises” clause against a First Amendment challenge).