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Winter v. Wolnitzek

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

October 29, 2014

ROBERT A. WINTER, JR., Plaintiff,
v.
HON. STEVEN D. WOLNITZEK, in his official capacity as Chair, Judicial Conduct Commission, et al., Defendants and CAMERON BLAU, Intervenor Plaintiff,

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For Robert A. Winter, Jr., Plaintiff: Brandon N. Voelker, LEAD ATTORNEY, Cold Spring, KY; Christopher David Wiest, LEAD ATTORNEY, Christopher Wiest, Atty at Law, PLLC, Crestview Hills, KY; Jack S. Gatlin, Thomas B. Bruns, LEAD ATTORNEYS, Freund, Freeze & Arnold - Ft. Mitchell, Ft. Mitchell, KY.

For Cameron A Blau, Intervenor Plaintiff: Christopher David Wiest, LEAD ATTORNEY, Christopher Wiest, Atty at Law, PLLC, Crestview Hills, KY; Jack S. Gatlin, Freund, Freeze & Arnold - Ft. Mitchell, Ft. Mitchell, KY.

For Hon. Steven D. Wolnitzek, in his official capacity as Chair, Judicial Conduct Commission, Hon. Janet L. Stumbo, in her official capacity as Member, Judicial Conduct Commission, Hon. Eddy Coleman, in his official capacity as Member, Judicial Conduct Commission, Hon. David P. Bowles, in his official capacity as Member, Judicial Conduct Commission, Hon. Diane E. Logsdon, in her official capacity as Member, Judicial Conduct Commission, Hon. Joyce King Jennings, in her official capacity as Member, Judicial Conduct Commission, Jimmy Shaffer, in her official capacity as Executive Secretary, Judicial Conduct Commission, Defendants: Jeffrey C. Mando, LEAD ATTORNEY, Louis D. Kelly, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY.

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MEMORANDUM OPINION AND ORDER

Amul R. Thapar, United States District Judge.

Like a recurring bad dream, Kentucky's judicial canons keep getting struck down. First, Kentucky tried to limit judicial candidates from responding to questionnaires. See Family Trust Found. of Ky. v. Wolnitzek, 345 F.Supp.2d 672 (E.D. Ky. 2004). Then, Kentucky tried to prohibit judicial candidates from identifying their political party. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010). Now Kentucky wants to prevent judicial candidates from campaigning as a member of a political party or identifying their party affiliation in a way that may mislead voters. When Kentucky writes these judicial canons, it must forget Thomas Jefferson's warning that " a democracy cannot be both ignorant and free." More importantly, the canons violate the First Amendment.

No one doubts that Kentucky's goals are noble. Keeping politics out of the courtroom is a goal every state aspires to achieve. Censoring and stifling speech, however, is not the answer. The solution to voters potentially being misled by a judicial candidate's political speech is more speech--not government censorship. Because the canons operate as a form of government censorship, the Court must enjoin their enforcement.

BACKGROUND

Kentucky, like many states, holds judicial elections. Those elections are nonpartisan--the ballot does not list a candidate's party, nor are there party primaries to select nominees. 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 composed of all the candidates. The top two candidates from the primary, regardless of party affiliation, proceed to the general election. Ky. Rev. Stat. Ann. § 118A.060.

In an effort to keep politics out of judicial elections, the Kentucky Supreme Court's Code of Judicial Conduct regulates what judicial candidates can and cannot say while campaigning. The Kentucky Judicial Conduct Commission (" Commission" ) enforces those rules, called Canons, and can punish violations. See Ky. Const. § 121; Rule of Supreme Court of Kentucky 4.020(1)(b) (Commission can impose, among other sanctions, " admonition, private reprimand, public reprimand or censure" for violations.). But restrictions on speech, even in judicial campaigns, are subject to the First Amendment. Indeed, the First Amendment protects judicial candidates' freedom to announce their views on legal and political issues, Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), and identify their political parties, Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010).

In Carey, the Sixth Circuit held that Kentucky Supreme Court Rule 4.300, Canon 5(A)(2), which prohibited judicial candidates from identifying their party affiliation, violated the First Amendment. In response, Kentucky amended Canon 5. See In Re: Order Amending Rules of the Supreme Court (Ky. Feb. 18, 2013). For this case, the relevant Canon provisions are 5(A)(1)(a) and 5(B)(1)(c). Canon 5(A)(1)(a) now states:

(1) Except as permitted by law, a judge or a candidate for election to judicial office shall not:
(a) campaign as a member of a political organization.

The Commentary to Canon 5(A) explains that " a judge or a candidate for election to

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judicial office may publicly affiliate with a political organization but may not campaign as a member of a political organization." Canon 5(B)(1)(c) states that a judicial candidate:

shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office; and shall not knowingly, or with reckless disregard for the truth, misrepresent any candidate's identity, qualifications, present position, or make any other false or misleading statements.

Plaintiff Robert Winter, Jr., and Intervenor-Plaintiff Cameron Blau challenge these Canons as unconstitutional under the First Amendment. Winter was a candidate for Circuit Judge in Kenton County, Kentucky. R. 31-3. He sent out mailers identifying himself as a Republican candidate and his opponent as a Democratic candidate. Id. After Winter's mailers went out, the Commission sent him a letter explaining that it received complaints that his actions violated Canons 5(A)(1)(a) and 5(B)(1)(c). R. 1-9. In response, Winter filed this lawsuit, and the Commission agreed not to prosecute during the pendency of the case. R. 25.

While Winter's lawsuit was pending, Blau filed an unopposed motion to intervene, R. 43, which the Court granted, R. 48. Blau then filed an emergency motion for a temporary restraining order and preliminary injunction. R. 46. Blau is running for Campbell County District Judge and wants to send out mailers to potential voters identifying himself as a " Republican candidate," or words to similar effect, and his opponent as a " Democrat candidate," or words to similar effect. Id. at 2. But Blau justifiably worries that the Commission will find that speech to be a violation of Canons 5(A)(1)(a) and 5(B)(1)(c). Id. Accordingly, Blau seeks a temporary restraining order and preliminary injunction prohibiting the Commission from enforcing Canon 5(A)(1)(a) and Canon 5(B)(1)(c) against him. The Commission opposes his motion. R. 55.

DISCUSSION

I. Standing

It is axiomatic that the Court must have jurisdiction to adjudicate a dispute. Under Article III of the Constitution, that requires a case or controversy, and standing " is an essential and unchanging part" of that requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Since Winter's standing has not been decided, Blau must have standing to proceed. While the Commission did not clearly make a standing argument in its response to Blau's motions, the Court nonetheless has an obligation to assure itself that it has jurisdiction.

In order to have standing, a plaintiff must suffer an injury in fact--harm that is " concrete and particularized," and " actual, or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560. In a First Amendment case, a plaintiff can establish injury in fact so long as the threat of an enforcement action against his speech is sufficiently imminent. Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014); see McGlone v. Bell, 681 F.3d 718, 729 (6th Cir. 2012) (" Plaintiffs may have standing even if they have never been prosecuted or threatened with prosecution." ). A threat of enforcement is concrete enough to establish an injury in fact when the plaintiff demonstrates three conditions: (1) an intent to engage in actions that are " arguably affected

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with a constitutional interest," (2) a statute, regulation, or other provision that " arguably" prohibits those actions, and (3) a credible threat of prosecution. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see also Driehaus, 134 S.Ct. at 2342.

Blau satisfies all three conditions. First, he is currently running for judicial office, and has declared that he wants to send mailers identifying his party affiliation and his opponent's party affiliation. R. 43-2 at 2. Sending out mailers to communicate with voters is core political speech. As such, " it is certainly affected with a constitutional interest." Driehaus, 134 S.Ct. at 2344 (internal quotation marks omitted).

Second, the Canons likely proscribe Blau's future conduct. Canon 5(A)(1)(a) precludes a judge from " campaign[ing] as a member of a political organization." While it is unclear exactly what the statement covers, the Commission has instituted sanction proceedings against at least one candidate,[1] for identifying himself in campaign mailers as a " Republican candidate." R. 49-1. And the Commission indicated that Winter's mailers declaring that he was a Republican candidate and his opponent was a Democratic candidate may violate that Canon too. R. 1-9 (Letter from Judicial Conduct Commission to Robert J. Winter (June 2, 2014)). The Commission also stated that Winter's campaign materials may give " the false impression that the election was . . . partisan" in violation of Canon 5(B)(1)(c). Id. Blau wants to engage in the same conduct as those candidates, which likely comes within Canon 5's reach.

The final factor is the credible threat of enforcement. If " the same conduct has drawn enforcement actions or threats of enforcement in the past," then a future threat of enforcement is credible. Kiser v. Reitz, 765 F.3d 601, 609 (6th Cir. 2014) (citing Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)); Driehaus, 134 S.Ct. at 2345 (" [P]ast enforcement against the same conduct is good evidence that the threat of enforcement is not 'chimerical.'" ). Here, Blau presents evidence that the Commission recently instituted enforcement proceedings against a fellow judicial candidate who identified himself as a " Republican" in his campaign mailers. R. 49-1. Additionally, the Commission sent a letter to Winter, also in this election cycle, notifying him of similar issues with his disclosure of party affiliation. Because of ...


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