Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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SEIFERT v. ALEXANDER (June 14, 2010)

The State of Wisconsin has two sets (primary and general) of elections during its election years. Non-partisan officeholders, including judges and many county and municipal officers, are elected in the spring. Candidates for these positions are slated without party affiliation. In the fall, elections are held for partisan officeholders, including the sheriff and district attorney. In 2004, the Wisconsin Supreme Court amended the Wisconsin Code of Judicial Conduct to prohibit a judge or judicial candidate from a) being a member of any political party, b) endorsing or speaking on behalf of another candidate, and c) personally soliciting campaign contributions. John Siefert has been a circuit court judge in Wisconsin since 1999. Siefert would like to join the Democratic Party, endorse partisan candidates for office, and solicit contributions for his upcoming campaign. He brought suit pursuant to § 1983 against the members of the Wisconsin Judicial Commission for injunctive and declaratory relief. Judge Crabb (W.D. Wis.) declared the rules unconstitutional and enjoined their enforcement. The Commission appeals.

In their opinion, Judges Flaum, Rovner (dissenting in part), and Tinder affirmed in part and reversed in part. The Court described its task as an attempt to "harmonize . . . two strains of First Amendment law." On the one hand, in White I, the Supreme Court applied strict scrutiny in striking down a code of conduct that prohibited judges from taking positions on legal and political issues. On the other hand, the Supreme Court applied the less stringent Pickering standard in Letter Carriers and Garcetti and balanced the public employee's right to speak against the government's interests. The Court addressed each prohibition separately. With respect to the party membership prohibition, the Court found it content-based and applied strict scrutiny. Although a state does have a compelling interest in the lack of bias in its judiciary, the Court found that the prohibition was not narrowly tailored to serve that interest and struck it down. With respect to the partisan candidate endorsement prohibition, the Court noted a distinction between an endorsement of another and speech regarding a judge's own views. The distinction supported the application of a balancing approach instead of strict scrutiny. In balancing the state's interest in a fair judiciary with the judiciary's interest in endorsing candidates, the Court concluded that the state's interest prevailed. The Court did express its concern that the prohibition only applied to partisan elections. That under-inclusiveness could have invalidated the prohibition under a strict scrutiny approach – but the Court concluded that it did not under the balancing approach. Finally, with respect to the personal solicitation prohibition, the Court noted that Buckley created two approaches. Candidates' spending restrictions are met with strict scrutiny -- candidates' contributions restrictions are met with a less rigorous standard. The personal solicitation prohibition was a contribution restriction and therefore analyzed under the less rigorous approach. The Court found a strong state interest in protecting against the appearance of a quid pro quo that a direct personal solicitation might create. Even though the prohibition does not prevent a candidate from a reviewing a contributor list and applies even to family members, where the risk of a quid pro quo is remote, the Court found that the regulation was closely enough drawn to the state's interest to be constitutional.

Judge Rovner agreed with the panel in its treatment of the party membership restriction and the personal solicitation restriction. She dissented, however, from its treatment of the partisan candidate endorsement restriction. Her fundamental disagreement was with the majority's application of a balancing test. In her view, White I requires the application of a strict scrutiny standard in evaluating a content-based restriction. Under a strict scrutiny approach, the under-inclusiveness noted by the majority opinion is fatal to its constitutionality.