Winter v. Wolnitzek

186 F.Supp.3d 673

Robert A. Winter, Jr., Plaintiff,andCameron A. Blau and Hon. Allison Jones, Intervenor Plaintiffs,

v.Hon. Steven D. Wolnitzek, in his official capacity as Chair, Judicial Conduct Commission, et al., Defendants.

Civil No. 14-119-ART

United States District Court, E.D. Kentucky, Northern Division. Covington.

Signed May 13, 2016

Brandon N. Voelker, Jack S. Gatlin, Thomas B. Bruns, Freund, Freeze & Arnold, Ft. Mitchell, KY, Christopher David Wiest, Christopher Wiest, Atty At Law, PLLC, Crestview Hills, KY, for Plaintiff.

Christopher David Wiest, Christopher Wiest, Atty At Law, PLLC, Crestview Hills, KY, Thomas B. Bruns, Jack S. Gatlin, Lucinda C. Shirooni, Thomas B. Bruns, Freund, Freeze & Arnold, Ft. Mitchell, KY, for Intervenor Plaintiffs.

Jeffrey C. Mando, Louis D. Kelly, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, Mark R. Overstreet, Bethany A. Breetz, Stites & Harbison, PLLC, Louisville, KY, for Defendants.

AMENDED MEMORANDUM OPINION & ORDER

Amul R. Thaper, United States District Judge

This case sits at the confluence of two First Amendment streams. In one line of cases, the Supreme Court has made clear that restrictions on political speech are almost always unconstitutional.¹ The reason is that "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana , 379 U.S. 64, 74–75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In the other line, however, the Court has made clear that a state may nevertheless regulate the political speech of judges and judicial candidates. The reason is that judges and politicians are different species of public officials: politicians are supposed to be responsive to their constituency, but judges are supposed to be "responsive" to the law alone.² Thus, even when a state chooses to elect its judges, the Court has held that the state need not allow the election contest to proceed no-holds-barred.

The question presented is whether six canons of the Kentucky Judicial Code of Ethics violate the First Amendment.³ All of the canons prohibit political speech based on its content, and thus strict scrutiny applies. The more specific questions, then, are whether the canons advance compelling governmental interests and, if so, whether they are narrowly tailored toward promoting those interests.

I. Factual background

Like many states, Kentucky holds judicial elections. These elections are "nonpartisan," i.e. , the ballot does not reveal a candidate's political party and candidates need not win a party primary to appear on the ballot. See Ky. Const. § 117 ("Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law."). Instead, Kentucky has one primary election featuring all of the interested candidates; the two with the most votes then proceed to the general election. Ky. Rev. Stat. Ann. § 118A.060. Thus, in a bluegrass judicial-election bout, the undercard will likely feature candidates from a variety of political parties. And the main event might pit a Democrat against a Democrat or a Republican against a Republican. Notwithstanding the candidates' true affiliations, however, these partisan labels appear nowhere on any of the ballots.

In addition to these technical rules governing the elections themselves, the Kentucky Supreme Court's Code of Judicial Conduct regulates what judicial candidates may say while campaigning. The Kentucky Judicial Conduct Commission ("Commission") enforces those rules, called Canons, and punishes violations. See Ky. Const. § 121 ; Rule of Supreme Court of Kentucky 4.020(1)(b)(v) (explaining that the Commission can impose, among other sanctions, "admonition, private reprimand, public reprimand or censure" for violations of the Code of Judicial Conduct).

A.

In July 2013, Kentucky Governor Steven Beshear appointed Allison Jones to the Kentucky Court of Appeals. R. 72-2 at 1. She filled a vacancy left by Judge Michelle Keller, whom Beshear had appointed to the Kentucky Supreme Court. Id. The term of the vacancy ended in 2014, however, and thus Jones needed to win an election to keep her seat. Id. Most of the time, Jones's campaign used the word "keep" to describe what voters should do with respect to Jones. For example, the campaign formed a "Committee to Keep Judge Jones" and used a "Keep Judge Jones" logo on campaign materials. Id. at 3. But sometimes Jones used the word "re-elect." For example, she occasionally urged voters to "re-elect" her to another term. Id.

Jones also told voters what she planned to do if elected. In particular, she told them that she would make it a priority of hers to fight the heroin epidemic that has plagued Kentucky in recent years. In support of that goal, she "stated in campaign materials that one of [her] priorities was to continue to work with the legislative and executive branches to ensure that the law provides for stiff penalties for heroin dealers." R. 72-2 at 7.

Finally, Jones sometimes urged "re-election" and promised to promote stiff heroin sentences at the same time. For example, the Courier Journal 's voter guide included a statement from Jones that "[i]f re-elected to the Court of Appeals, I will continue 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." Id. ¶ 24. Jones ultimately won the election with 61% of the vote. Id. ¶ 4.

After the election, Jones received a letter advising her that "a complaint ha [d] been filed against [her] with the Judicial Conduct Commission relative to [her] campaign for election to the Court of Appeals." Id. at 7. According to the letter, the complaint alleged that Jones had "violated the Code of Judicial Conduct by making false and misleading statements in speeches and campaign materials by asking voters to re-elect [her] even though [she was] not elected to the position but rather, [was] appointed by Governor Beshear." Id. The complaint also apparently alleged that Jones had "violated the Code when [she] stated in campaign materials that one of [her] priorities was to continue to work with the legislative and executive branches to ensure that the law provides for stiff penalties for heroin dealers." Id. The Commission advised Jones that it had "consider[ed] and discuss[ed] the complaint," and later asked her to "file a written response to the allegations." Id. After receiving the letter, Jones contacted the Commission and asked for "additional details." Id. ¶ 9. The Commission refused to provide her "with any details beyond those set forth in the letter." Id.

B.

In May 2014, Robert Winter was running for the position of Circuit Judge in Kentucky's 16th District. R. 31-3 ¶ 3. During the primary campaign for that seat, Winter sent out several sets of mailers. Some of the mailers were indeed "targeted" toward Republicans, though they hardly qualified as partisan screeds. For the most part, the mailers emphasized Winter's impartiality, legal experience, and military service—they included, for example, information about Winter's career as an officer in the United States Navy and photographs of Winter reviewing legal documents. See, e.g. , R. 1-3; R. 1-4; R. 1-6; R. 1-8. The tagline on many of the mailers was "Experienced, Impartial, Veteran," see, e.g. , R. 1-8 at 2, and the mailers often urged voters to elect as judge a "highly rated attorney and military veteran." R. 1-6 at 1. They emphasized Kenton County's conservative values and promised that, if elected, Winter would "protect Kenton County's Conservative values by making all decisions based on the law." R. 1-4 at 2. Perhaps channeling the spirit of Chief Justice John Roberts, Winter promised in the mailers to "hear the case just as an umpire does with a baseball game," to "call balls and strikes based on the law." R. 1-5 at 2. "You will be electing a judge," the mailers said, "not someone who pre-judges. I have no agenda or preconceived notions." R. 1-3 at 1.

The mailers also included some detail about the political parties to which Winter and his opponents belonged. See, e.g. , R. 1-8 at 2. Under any fair reading, however, these party-affiliation statements were hardly the mailers' primary focus. After all, many of the mailers included full-color photographs of ballistic-missile submarines. E.g. , R. 1-3; R. 1-4; R. 1-6. Juxtaposed next to such images, boilerplate language about party affiliation tends not to capture the reader's attention. Even so, several of the mailers did identify Winter as a registered Republican and identified some of his opponents as registered Democrats. See, e.g. , id. at 1; R. 1-5 at 1. According to Winter, all of the party-affiliation language was truthful. He of course knew his own party affiliation; to determine his opponents', he "specifically checked public records, including the voter registration list, to confirm the affiliations." Id.

After the election, three unidentified people sent formal complaints to the Commission. The first complaint alleged that Winter had "mailed campaign literature in which he not only identifies himself as a lifelong Republican, but also identifies three of his opponents as Democrats." R. 29-1 at 2. In the complainants' view, the mailers were evidence that Winter was "running his campaign as a member of a political organization" and "trying to capitalize on the expected heavy turnout of Republican voters to help him in his ‘non-partisan’ race." Id. at 3. Such conduct, the complaint went on to allege, violated Canon 5 as well as the "spirit" of the Kentucky Constitution, which provides that judges "shall be elected ... on a non-partisan basis." Id. (quoting Ky. Const. § 117 ). "Why else would [Winter] identify himself as a Republican and his opponents as Democrats," the complaint...