Winter v. Wolnitzek

834 F.3d 681

Robert A. Winter, Jr., Plaintiff–Appellee/Cross–Appellant,

Cameron A. Blau; Allison Jones, Intervening Plaintiffs–Appellees/Cross–Appellants,

v.Steven D. Wolnitzek; Janet L. Stumbo; Eddy Coleman ; David Paul Bowles; Diane E. Logsdon; Joyce King Jennings ; Jimmy Shaffer, Defendants–Appellants/Cross–Appellees.

Nos. 16-5836/5839/5841

United States Court of Appeals, Sixth Circuit.

Argued: August 4, 2016

Decided and Filed: August 24, 2016

Rehearing En Banc Denied October 12, 2016.

ARGUED: Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, Kentucky, for Appellants/Cross–Appellees. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, for Appellants/Cross–Appellees as to all claims except those asserted by Judge Jones. Christopher Wiest, Chris Wiest, AAL, PLLC, Crestview Hills, Kentucky, for Appellees/Cross–Appellants. ON BRIEF: Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, Kentucky, for Appellants/Cross–Appellees. Mark R. Overstreet, Stites & Harbison, PLLC, Frankfort, Kentucky, Bethany A. Breetz, Stites & Harbison, PLLC, Louisville, Kentucky, for Appellants/Cross–Appellees as to all claims except those asserted by Judge Jones. Christopher Wiest, Chris Wiest, AAL, PLLC, Crestview Hills, Kentucky, Jack S. Gatlin, Gatlin Voelker, PLLC, Ft. Mitchell, Kentucky, for Appellees/Cross–Appellants.

Before: COLE, Chief Judge; SUTTON and COOK, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

One sitting judge and two aspiring judges from Kentucky wish to exercise their free-speech rights during this and future judicial elections. They claim that the Commonwealth's Code of Judicial Conduct stands in the way. They are not the first judges to bring this kind of complaint. A growing line of cases grapples with the States' authority to create a system of judicial elections on the one hand and regulate judicial campaign speech on the other. See Williams–Yulee v. Fla. Bar , ––– U.S. ––––, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015) ; Republican Party of Minn. v. White , 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ; Carey v. Wolnitzek , 614 F.3d 189 (6th Cir. 2010). At issue today are several clauses in Kentucky's judicial canons—from prohibitions on “campaign[ing] as a member of a political organization,” to “endors[ing] ... a candidate for public office,” to “mak[ing] a contribution to a political organization,” to making any “commitments” with respect to “cases, controversies, or issues” likely to come before the court, to making “false” or “misleading” statements. The district court issued a thorough and thoughtful opinion, making our job easier. It struck some of these provisions and upheld others. We agree with almost all of its reasoning and affirm almost all of its judgment.

I.

Robert Winter's campaign literature identified him as a “lifelong Republican” and informed voters that his opponents were registered Democrats. R. 29–1 at 2. The Judicial Conduct Commission, which enforces the Code, sent him a “probable cause” letter, stating that his mailers may have violated the canon prohibiting “campaign[ing] as a member of a political organization.” Rules of Supreme Court of Kentucky 4.300, Canon 5(A)(1)(a); id. at 4.170(1) (pre-2016 version); see R. 1–9 at 1.

Incumbent Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and she promised to “work with the legislative and executive branches to ensure that the law provides stiff penalties for heroin dealers and that the judiciary has the tools necessary to reduce recidivism among heroin addicts that are arrested and sentenced.” R. 80 at 4, 8. Her “re-elect” statement, the Commission wrote in its probable cause letter, potentially violated the canon prohibiting “false and misleading statements.” Canon 5(B)(1)(c). And her “stiff penalties” comment potentially constituted an impermissible “commitment” on an issue likely to come before her court. Canon 5(B)(1)(c).

Cameron Blau, an aspiring judge, wants to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive endorsements from Republican candidates, and to donate to candidates and to the party. The Code bans all of that, which left Blau “fear[ful] [to] engag[e]” in any of it due to the risk of public reprimand, disbarment from the practice of law, or eventual suspension without pay and removal from office. R. 50 at 6; see Rules of Supreme Court of Kentucky 4.020(1)(b).

Winter filed this lawsuit, after which Jones and Blau intervened, all three to the end of stopping the Commission (in truth, its members) from enforcing these canons against them. Both sides moved for summary judgment. Before ruling on the motions, the district court certified questions about the meaning of three of the canons to the Kentucky Supreme Court. The Court answered in February 2016. Winter v. Wolnitzek , 482 S.W.3d 768 (Ky. 2016). The district court issued a 45–page opinion granting in part the plaintiffs' request to enjoin the challenged canons and issuing a final judgment to that effect. Each side appealed and each side sought expedited resolution of the case.

II.

Is there an Article III case or controversy? Yes, as a general matter. All three plaintiffs plan to run in the next elections for which they are eligible, either 2016 or 2018. See Carey , 614 F.3d at 197. All three intend to engage in speech arguably proscribed by the canons. And the Commission plans to enforce the canons against them.

Even so, the Commonwealth contests Jones' standing on the ground that she lacks a credible threat of enforcement for her “stiff penalties for heroin dealers” comment. The question is whether Jones faces a “credible threat of enforcement” for engaging in that speech. Susan B. Anthony List v. Driehaus , ––– U.S. ––––, 134 S.Ct. 2334, 2342, 2346, 189 L.Ed.2d 246 (2014). The answer turns on whether the Commission's letter carried with it a valid threat of enforcement. It did. The letter informed her that “a complaint ha[d] been filed against [her]” and requested that she respond to the allegations in writing. R. 72–2 at 7. The Commission issued the letter only after deciding “there is probable cause for action.” Rules of Supreme Court of Kentucky 4.170(1) (pre–2016 version). A state agency's probable cause finding provides a sufficient threat of enforcement to confer First Amendment preenforcement standing. See, e.g. , Driehaus , 134 S.Ct. at 2345 ; Platt v. Bd. of Comm'rs on Grievances & Discipline , 769 F.3d 447, 452 (6th Cir. 2014).

The State would have us hold that Jones' as-applied challenge is not ripe, even though her facial challenge is ripe. But if there is any difference between the standing requirements for as-applied and facial challenges, it is because raising a narrow as-applied challenge is easier, not harder, than raising a facial challenge. Nor can there be standing without ripeness in preenforcement challenges. The line between Article III standing and ripeness in preenforcement First Amendment challenges has evaporated. Driehaus , 134 S.Ct. at 2346–47. “The doctrines of standing and ripeness ‘originate’ from the same Article III limitation” and thus are analyzed together in challenges of this sort. Id. at 2341 n.5 ; see, e.g. , Platt , 769 F.3d at 451 ; Kiser v. Reitz , 765 F.3d 601, 606–07 (6th Cir. 2014). Whether the plaintiffs have standing and whether their claims are ripe come to the same question: Have they established a credible threat of enforcement? The answer is yes. And the answer does not differ in this instance for as-applied and facial challenges.

Nor do any practical obstacles keep us from considering the plaintiffs' as-applied challenges. The parties have described their conduct with plenty of detail. The Kentucky Supreme Court has told us that the canons proscribe their speech. And the Commission has said that it plans to enforce the canons against the plaintiffs. That means the plaintiffs have “laid the foundation” for their as-applied challenges, Ctr. for Individual Freedom v. Madigan , 697 F.3d 464, 475–76 (7th Cir. 2012), permitting us to decide them now, see, e.g. , Holder v. Humanitarian Law Project , 561 U.S. 1, 12, 15, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) ; Russell v. Lundergan–Grimes , 784 F.3d 1037, 1049–50 (6th Cir. 2015).

If the plaintiffs have standing to raise these challenges and if they are ripe for resolution, the Commission maintains, that must be because the Commission has initiated formal proceedings against them. And if that is true, it adds, Younger abstention bars us from hearing the case. Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). But a finding of probable cause does not necessarily mean a formal proceeding exists. In the absence of an ongoing enforcement action, Younger has no role to play, leaving us with authority, indeed an obligation, to resolve the case. See Sprint Commc'ns, Inc. v. Jacobs , ––– U.S. ––––, 134 S.Ct. 584, 590–91, 187 L.Ed.2d 505 (2013).

III.

The Kentucky Constitution gives the citizens of the Commonwealth the right to vote for their judges in nonpartisan elections. Ky. Const. § 117. The First (and Fourteenth) Amendment to the United States Constitution gives candidates for elective office, whether executive, legislative, or judicial, freedom on the campaign trail to explain why they are the superior candidate for the job. White , 536 U.S. at 781–82, 787–88, 122 S.Ct. 2528. Strict scrutiny as a result applies to any State's efforts to regulate the campaign speech of sitting or aspiring judges. Williams–Yulee , 135 S.Ct. at 1665.

The plaintiffs challenge eight features of the Commonwealth's Code of Judicial Conduct.

(1) Campaigning clause . “Except as permitted by law,” Canon 5(A)(1)(a) says, “a judge or a candidate for election to judicial office shall not [ ] campaign as a member of a political organization.” The Kentucky Supreme Court in its certification decision held that this clause prohibits candidates...