Divided Sixth Circuit enjoins some enforcement of Kentucky’s campaign speech rules in upcoming judicial election

From the per curiam opinion (Judges Thapar and Murphy) in Fischer v. Thomas (with light revisions):

On September 27, 2022, the Kentucky Judicial Conduct Commission (“the Commission”) sent letters to Joseph Fischer and Robert Winter. Fischer is running for the Kentucky Supreme Court and Winter for the Court of Appeals.

The Commission’s letters advised that unidentified (but apparently known) individuals had filed complaints against the candidates concerning their ongoing campaigns for judicial office. Two complaints against Fischer alleged that he had “engaged in political or campaign activity inconsistent with the independence, integrity, or impartiality of the judiciary, including publicly identifying [himself] as the nominee of the Republican Party and seeking, accepting, and using endorsements from the Republican Party.” These complaints added that Fischer had “made pledges, promises or commitments in connection with cases, controversies, or issues likely to come before the Court—specifically the issue of abortion.” According to the Commission, an individual filed a complaint against Winter that made similar allegations. After “consideration and discussion” of the complaints against Fischer and Winter, the Commission “request[ed]” that the two candidates respond to the allegations in writing by October 24. In addition, the Commission instructed its executive secretary to “invite” the candidates to attend an “informal conference” “to discuss the allegations in greater detail.” This “informal conference” is scheduled to take place on October 28. The letters further instructed that, if the candidates planned to have counsel represent them, they should “have counsel file a written entry of appearance prior to the conference.”

. . .

To identify a credible threat of enforcement, the first and most important factor is whether the challenged action chills speech. The Commission’s actions do just that. The candidates are self-censoring because the vague threats from the Commission could apply to a wide range of campaign-related speech. Beyond chill, a variety of facts can demonstrate a credible threat of enforcement. Our cases have highlighted four commonly recurring factors to consider: (1) Does the relevant prosecuting entity have a prior history of enforcing the challenged provision against the plaintiffs or others? (2) Has that entity sent warning letters to the plaintiffs regarding their conduct? (3) Does the challenged regulatory regime make enforcement easier or more likely? and (4) Did the prosecuting entity refuse to disavow enforcement of the challenged provision against the plaintiffs? This isn’t a laundry list; the candidates don’t have to satisfy all the factors. Yet all four weigh in the candidates’ favor.

. . .

Given the Commission’s vague allegations, the candidates have guessed at which of their speech might have violated the rules. They offer several possibilities. The First Amendment protects each.

To begin, Fischer’s letter suggests that he identified himself as the official Republican “nominee,” while both Fischer’s and Winter’s letters claim they used the endorsement of the Republican Party. Rule 4.1(A)(6) prohibits a judge or judicial candidate from “publicly identify[ing] himself or herself as a nominee of a political organization.” Rule 4.1(A)(7) provides that a judge or judicial candidate shall not “seek, accept, or use endorsements from a political organization.” Here’s the logo Fischer believes the Commission is concerned about . . . . Most of his campaign materials are similar. He identifies himself as “conservative” and “Republican.” Id. So does Winter. But neither candidate ever claimed to be the Republican nominee, nor did either one use the “Republican elephant” . . .

The statements the candidates have identified likely comport with the Constitution. As
we have already held, “candidates have a constitutional right to portray themselves as a member of a political party.” And these statements and logos do no more than that. . . .

The Commission’s letters also point to allegations that the candidates made “pledges, promises, or commitments” about “the issue of abortion.” These statements would violate Rule 4.1(A)(13), which provides that a judicial candidate shall not “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” The Code defines “impartial” as “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” SCR 4.300, Terminology.

As best we can tell from the complaint, this allegation refers to the endorsements the candidates received from various pro-life groups. There’s nothing constitutionally problematic about those groups endorsing the candidates. And just as with partisan endorsements, the candidates have no obligation to disavow endorsements they receive from advocacy groups either.

Of course, both candidates admit they have been involved with pro-life organizations and legislation in the past. But judges do not join the bench as blank slates. One would be hard-pressed to find a lawyer who lacks strong views about one issue or another. And as the Supreme Court has recognized, “it is virtually impossible to find a judge who does not have preconceptions about the law.” [Republican Party of Minnesota v. White]

But how can the candidates be open-minded when they’ve taken a stance on such a contentious issue? Fischer answered this very question in a Facebook post:

If a judge holds a personal moral objection to murder, does that moral objection disqualify the judge from deciding a capital murder case? If the same judge has a personal moral objection to the death penalty, does that objection likewise disqualify the judge? Unless the judge had a personal bias against one of the parties to the case, those sincerely held moral beliefs would not create a legal impediment to the judge applying the facts of the case to the text of the law and imposing the appropriate punishment. The hallmark of impartiality and the rule of law is the judge’s commitment to put aside their personal opinions about political issues and decide each individual case based on the law as written.

The post provides an eloquent defense of why endorsements and affiliations do not impact future rulings. And surely this post itself is both campaign speech and constitutionally protected. . . .

The Commission is enjoined from taking any action, including initiating formal proceedings, against the candidates for:

1. The statement that Fischer is “the conservative Republican”;

2. The statement that Winter is “conservative” or “Republican”;

3. Fischer’s use of an elephant that is not the official logo of the Republican Party;

4. Fischer’s and Winter’s failure to disavow endorsements that they have received from Republican Party executive committees and officials;

5. Kentucky Right to Life and Northern Kentucky Right to Life’s endorsements;

6. Fischer’s and Winter’s use of Kentucky Right to Life and Northern Kentucky Right to Life’s endorsements;

7. Fischer’s and Winter’s past affiliation with Kentucky Right to Life and Northern Kentucky Right to Life.

Judge Griffin dissented, finding “not a credible threat of prosecution at this time.”

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