Friday follow up – Sixth Circuit affirms Kentucky judicial speech case

So, I’ve been battling a bit of a stomach bug such that over the last 45 hours or so I have ingested a cup of yogurt, a sleeve of Ritz crackers, and a small bowl of chicken noodle soup.  Accordingly, this will be a short(ish) post – apologies in advance.

Back in May of this year, I wrote a bit about judicial elections and First Amendment speech issues that continue to be litigated in the context of judicial ethics rules that seek to restrict what judges can say when campaigning for public office.  I spoke about a federal court decision out of Kentucky that was the most recent instance of a federal court striking down certain kinds of provisions and that it appeared to be among the first cases to interpret an important U.S. Supreme Court case from 2015 – Williams-Yulee v. Florida Bar.

Just a little over three months has passed, and the Sixth Circuit now has already issued its ruling in Winter v. Wolnitzek affirming just about every aspect of the Kentucky district court’s decision.  While the Sixth Circuit gives much credit to the district judge for its “thorough and thoughtful opinion,” the Sixth Circuit’s opinion is no slouch in the thoughtfulness category either.

The Sixth Circuit’s opinion affirmed the ruling that, because of how the Kentucky Supreme Court interpreted the provision, the “shall not campaign as a member of a political organization” prohibition was vague and constitutionally overbroad — specifically “too vague to tightly regulate the problem and too vague to avoid scaring off permissible electoral speech.”

It also affirmed the ruling that the provision prohibiting judicial candidates from “mak[ing] speeches for or against a political organization or candidate” is unconstitutional because it extends to prevent Kentucky judicial candidates “from announcing their views on disputed legal and political subjects.”  In terms of the (perhaps) most closely-watched aspect of the case in front of it, the Sixth Circuit decided to remand to allow Kentucky an opportunity to clarify whether it will interpret “impartiality” in its “Commits clause” to mean only impartiality as to parties.

You can read all aspects of the opinion at the link provided above, but. if I had to guess, I think the most lasting legacy of this decision and the sentence likely to be quoted the most in the future is:

A State may not hold judicial elections, then prevent candidates from explaining what makes them qualified for that office.

Whether it is a good thing or not for performance of the judiciary as a whole, there are presently (and undoubtedly will be many more in the future) candidates in public judicial elections who believe strongly that part of what makes them qualified for office are their political views. their political allegiances, and the like.

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