The U.S. Court of Appeals for the Sixth Circuit has ruled that, “if a State opts to select its judges through popular elections, it must comply with the First Amendment in doing so.” In Carey v. Wolnitzek (6th Cir., Case Nos. 08-6468 & 08-6538), the Court struck down as unconstitutional two Kentucky regulations governing judicial candidates for failing to meet this test: the first regulation prohibiting judicial candidates from identifying his or her political party affiliation and the second prohibiting such candidates from personally soliciting campaign funds. The Court remanded to the district court to further review a third, related regulation prohibiting judicial campaign statements that would commit the candidate or judge from ruling in a certain way in a case or controversy.
Carey’s effects could be felt throughout the Sixth Circuit, and possibly beyond. Ohio has a similar regulation prohibiting judicial candidates from identifying their party affiliation, and Ohio, Michigan, and Tennessee all have regulations prohibiting or discouraging judicial candidates from soliciting campaign contributions or committing themselves to certain positions or courses of conduct. With an eye toward his State’s own regulations, the Ohio Attorney General had filed an amicus brief in Carey, urging the Court to uphold Kentucky’s regulations, and the impact of Carey on Ohio remains to be seen. Outside the Sixth Circuit, several States have regulations similar to those in Kentucky, so the reach of Carey could prove significant.
Judge Jeffrey S. Sutton wrote the majority opinion for a three-judge panel that also included Chief Judge Alice M. Batchelder and Judge Thomas A. Wiseman, Jr., Senior District Judge for the Middle District of Tennessee. Judge Wiseman joined the majority opinion with respect to the party affiliation and solicitation regulations, but dissented on the so-called “commits clause,” which he would have found constitutional without need for remand to the district court.