Metropolitan News-Enterprise


Monday, September 24, 2007


Page 1


Ninth Circuit Dismisses Challenge to Alaska Judicial Speech Restraint


By STEVEN M. ELLIS, Staff Writer


A challenge to Alaska’s restraints on speech by judges during electoral campaigns is not ripe for adjudication in the absence of any evidence that the state would seek to enforce such restraints, the Ninth U.S. Circuit Court of Appeals ruled unanimously Friday.

Judge Richard A. Paez declared that Judge Ralph R. Beistline of the U.S. District Court for the District of Alaska should have declined to hear the suit brought by Alaska Right to Life Political Action Committee against members of the Alaska Judicial Conduct Commission which sought to declare canons in the Alaska Code of Judicial Conduct requiring disqualification from proceedings in which a judge’s impartiality might reasonably be questioned, prohibiting judicial candidates from making pledges or promises of particular conduct, and restricting candidates from making statements appearing to commit to a particular view or decision regarding a case likely to come before them, as unconstitutional restrictions on free speech that violated the First Amendment.

First Amendment Challenge

ALR PAC brought the suit arguing that the canons violated its free speech rights to receive and distribute speech from judicial retention election candidates after a number of candidates declined to respond to a questionnaire the group sent in 2002 seeking candidates’ positions on a variety legal and political topics such as abortion and assisted suicide.

Paez held that, because ALR PAC could not demonstrate that any judges had an intent to violate the canons, that the commission planned to enforce canons, or that the state Supreme Court would interpret the canons’ provisions in such a way as to restrict solicited speech, the matter was not ripe.

In doing so, however, he also ruled that denial of the review would not hinder ALR PAC’s ability to bring a challenge to the canons at a later date if it could demonstrate such facts.

Marla Greenstein, executive director of the commission, said that the commission was pleased that the court recognized the care with which the commission operates.

ALR PAC President Edward Wassell said that, while he had expected the ruling, he was mildly, positively surprised that the court had left the door open to a future challenge, and indicated that his group will continue to send the questionnaire to future judicial retention election candidates.

Candidate Questionnaire

In October 2002, the Alaska Right to Life Political Action Committee, circulated a questionnaire to twelve Alaska state court judges who were seeking retention votes in the Nov. 2002 election, soliciting the judges’ positions on abortion, assisted suicide, in vitro fertilization and cloning, wrongful life and wrongful birth.

Alaska fills court vacancies through a nomination and appointment procedure. When a vacancy arises, the Alaska Judicial Council nominates two or more candidates and the governor makes an appointment from this list.

Appointees are subject to a nonpartisan retention vote during the first general election occurring more than three years later, and must stand for retention again every 10 years thereafter if a supreme court justice and every six years if a judge.

Four judges responded to the questionnaire, but none indicated a view with respect to any of the issues presented, explaining instead their decisions not to participate. Two said that responding would require subsequent recusal under provisions of the code prohibiting judges from pledging, promising, or committing to particular conduct in office, while one stated that completing the questionnaire would violate his own personal code of judicial ethics and another declined to answer on advice from the commission.

On Oct. 16, 2002 Greenstein sent ARL PAC a letter expressing concern that judges who responded to the questionnaire in any manner other than ‘decline’ would disqualify themselves from hearing cases involving those issues.

However, no judge sought a formal advisory opinion from the commission regarding the questionnaire, and neither the commission nor the bar ever threatened to enforce any provision of the code against judges who might have chosen to complete it, Paez noted.

ARL PAC did not publish any of the four responses it received, and it did not distribute the questionnaire to any of the ten judges who sought retention in the next general election in Nov. of 2004.

Instead, two years later, and approximately one month prior to the 2004 general election, ARL PAC and Alaska resident Michael Miller brought suit in the U.S. District Court for the District of Alaska under 42 U.S.C. § 1983 against eight members of the commission and six members of the Disciplinary Commission of the Alaska Bar Association in their official capacities, challenging the constitutionality of two canons in the code and alleging that the canons injured their rights to receive—and in ARL PAC’s case, to distribute—judicial campaign speech.

The complaint raised First Amendment challenges to one canon that required disqualification of judges from proceedings in which impartiality might reasonably be questioned and prohibited judicial candidates from making pledges or promises of particular conduct on the bench, and to another canon that restricted statements by candidates that appeared to commit to a particular view or decision regarding a case likely to come before them.

ARL PAC and Miller asserted that the commission’s enforcement policy of both canons, as expressed in Greenstein’s Oct. 16, 2002 letter, unconstitutionally chilled protected political speech, and their complaint sought declaratory and injunctive relief, costs and attorneys’ fees.

They later voluntarily dismissed all Bar members except Steve Van Goor, head of the bar disciplinary commission, who himself filed a motion to dismiss which Beistline granted in light of the plaintiffs’ concession that their lawsuit did not involve attorney-applicants and that Van Goor had no authority to enforce the code against judicial officers.

Ruling in favor of ARL PAC and Miller, Beistline concluded that the suit was justiciable and, ruling on the merits, he invalidated the canon containing the pledge and promise and commit clauses as unconstitutional under the First Amendment.

He rejected, however, the challenge to the canon requiring disqualification from proceedings in which impartiality might reasonably be questioned.

Beistline also denied ARL PAC and Miller’s motion for costs and attorneys’ fees on grounds that their successful challenge was significantly compromised by their lack of success in challenging the recusal clause, and he granted Van Goor’s motion for costs and attorneys’ fees.

ARL PAC and Miller appealed the orders denying their motion for attorneys’ fees and costs, and granting fees and costs to Van Goor. They also appealed the judgment as to the constitutionality of the recusal clause, but later dismissed this portion.

The commission similarly appealed, contesting the judgment invalidating the pledge and promise and commit clauses.

Paez agreed with the commission, concluding that the district court should have declined jurisdiction over the action because ARL PAC and Miller’s claims were not ripe.

He noted that the factual record did not show that any judge who was subject to the challenged canons’ enforcement in 2004 had a clear intention to violate them.

“Without a clearer showing that a judge would reasonably risk discipline by responding to the questionnaire, this record is therefore unfit to review Plaintiffs’ First Amendment claims,” he said.

Paez also said that the record did not show that the commission so much as contemplated that enforcement of the canons would be warranted against a judge who responded to the questionnaire.

He noted that no judge requested, and the commission never issued, a formal advisory opinion on the propriety of responding to the questionnaire, and that Greenstein’s letter, which did not threaten investigation, “at most constituted informal guidance and, therefore… had no legal effect.”

He finally pointed out that the Alaska Supreme Court has exclusive authority definitively to interpret the code’s provisions.

“The fact that Alaska’s high court has not yet had an opportunity to construe the canons at issue here or to apply them to the speech ARL PAC and Miller hope to solicit further militates in favor of declining jurisdiction,” he said.

Given the lack of rulings on this issue, Paez said that there was no evidence to suggest that the court would interpret the canons in such a way as to restrict the speech that ARL PAC hoped to solicit.

Concluding that neither ARL PAC nor Miller were themselves subject to the challenged canons and faced no risk of self-censorship, and that the next general election in which any current judge would stand for retention will take place in Nov. 2008, he said that the plaintiffs would have plenty of time to develop a stronger record and then to seek review in either state or federal court, sufficiently in advance of the next election.

Paez also affirmed that Van Goor was entitled to fees and costs against ARL PAC and Miller in defending his part of the suit, because the suit did not allege any matters subject to his jurisdiction. As a result, Paez said that the claims against Van Goor had been without merit and of obvious result.

Paez was joined in his opinion by Judge J. Clifford Wallace, and Judge John T. Noonan.

The case is Alaska Right to Life Political Action Committee v. Feldman, 05-35902.


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