As reported previously in this blog, the U.S. Court of Appeals for the Sixth Circuit recently struck as unconstitutional two Kentucky regulations governing judicial elections. In Carey v. Wolnitzek (6th Cir., Case Nos. 08-6468 & 08-6538, July 13, 2010) (PDF) the Court struck a regulation prohibiting judicial candidates from identifying their political party affiliation and also a different regulation prohibiting such candidates from personally soliciting campaign funds. Although the ruling was limited to Kentucky’s regulations, Ohio’s Attorney General had recognized at the time that an adverse ruling by the Court could have an impact on similar Ohio regulations, as well.
The fallout has already begun. In response to Carey, on August 11, 2010, the Supreme Court of Ohio amended the state’s rules governing judicial elections to align Ohio law with the Sixth Circuit’s ruling. The amendments may be downloaded in Microsoft Word format by clicking here. By a 5-0 vote, the Supreme Court amended Rule 4.2 of the Ohio Code of Judicial Conduct to “remove a ban on judicial candidates identifying themselves in advertising as a member of or affiliated with a political party after the primary election.” In the Supreme Court’s official comment to amended Rule 4.2, the justices urge judicial candidates to minimize references to party affiliation: “Although these affiliations and others may be communicated to the electorate, a judicial candidate should consider the effect that partisanship has on the principles of judicial independence, integrity, and impartiality.” The comment was adopted by a 4-1 vote, with Justice Paul E. Pfeifer voting against adoption.
Also by a 4-1 vote, with Justice Pfeifer again voting no, the Supreme Court amended Rule 4.4 of the Code of Judicial Conduct, which addresses solicitation of campaign contributions. Amended Rule 4.4 continues to ban solicitation of campaign contributions, but the Supreme Court added two exceptions. First, “[a] judicial candidate may make a general request for campaign contributions when speaking to an audience of twenty or more individuals,” and, second, “[a] judicial candidate may sign letters soliciting campaign contributions if the letters are for distribution by the judicial candidate’s campaign committee and the letters direct contributions to be sent to the campaign committee and not to the judicial candidate.” In its official comment to Rule 4.4, adopted by the same 4-1 vote, the justices explained that “[t]hese limitations protect four vital interests: (1) avoiding the appearance of coercion or quid pro quo, especially when a judicial candidate engages in a one-on-one solicitation of a lawyer or party who appears before the court; (2) preserving both the appearance and reality of an impartial, independent, and noncorrupt judiciary; (3) ensuring the public’s right to due process and fairness; and (4) furthering the public trust and confidence in the impartiality of the judicial decision-maker. Rule 4.4(A) recognizes that some forms of solicitation are less coercive and less intrusive than others and permits a candidate to engage in solicitations that are less personal and directed at a wider audience.”