Fair Courts Litigation Task Force

For more than a decade, nearly every effort to protect courts from the influence of money and partisan politics has faced a vigorous litigation assault. Opponents of court reform have targeted ethical rules aimed at promoting the integrity and independence of the judiciary; public financing for judicial elections; and the use of nonpartisan merit commissions to screen judicial nominees.

The Fair Courts Litigation Task Force comprises a number of groups working to ensure a fair and impartial judiciary. This site tracks current litigation impacting fair courts, and collects resources regarding previous litigation relevant to fair courts.

Current Cases of Interest

Winter v. Wolnitzek (15-5841)

One sitting judge and two aspiring judges filed a lawsuit alleging that multiple canons of Kentucky's Code of Judicial Conduct violated their First Amendment rights. The plaintiffs challenged eight restrictions on judicial conduct: 1) the prohibition on judicial candidates campaigning as a member of a political organization, 2) the prohibition on judicial candidates making speeches for or against political organizations or candidates, 3) the ban on judicial candidates making contributions to political causes or candidates, 4) the prohibition on judicial candidates from publicly endorsing or opposing candidates for public office, 5) the prohibition on judges from acting as a leader or holding office in a policitical organization, 6) the prohibition on judicial candidates knowingly or recklessly making false statements during campaigns, 7) the ban on judicial candidates making misleading statements, and 8) the prohibition on candidates making pledges, promises, or committments in connection with cases, controversies, or issues that are likely to come before the court. A federal district court judge found some of the canons constitutional, and struck down others. On appeal, a 3-judge panel of the Sixth Circuit Court of Appeals applied strict scrutiny. Of the 8 challenged canons, the court struck down #1 and 2. The court upheld #3, 4, 5, and 7. The court found #6 consitituional on its face, but overbroad as applied. The court remanded #8 to the district court for further consideration.

Chisolm v. Two Unnamed Petitioners (a/k/a/ "John Doe")

In 2012, Milwaukee County DA John Chisholm began an investigation into possible illegal campaign coordination between Governor Scott Walker's 2012 recall election campaign and special interest groups. According to news reports, those groups included the Wisconsin Club for Growth, Citizens for a Strong America, and Wisconsin Manufacturers and Commerce. In Two Unnamed Petitioners v. Peterson (consolidated by the Wisconsin Supreme Court with Three Unnamed Petitioners v. Peterson and Schmitz v. Peterson), two of the parties targeted by the investigation appealed to end the investigation on the basis that the statute it was based on was unconstitutional. The parties claimed their speech was not “express advocacy” and therefore not subject to coordination regulations.

In February 2015, the prosecutor leading the probe into possible coordination between Governor Scott Walker's campaign and outside groups filed a motion asking at least one Wisconsin Supreme Court justice, and possibly more, to recuse themselves from hearing a challenge to the investigation based on the spending they benefitted from during their elections. However, in 2010, Wisconsin Supreme Court had changed the state’s recusal rules to exclude campaign contributions and independent expenditures as sole bases for judicial recusal. These changes were drafted in part by Wisconsin Manufacturers and Commerce. On July 16, 2015, Justices Prosser and Gableman denied motions for recusal. On July 29, Justice Prosser issued a letter to counsel explaining his decision to deny recusal. The Wisconsin Supreme Court also held that the John Doe investigation must be halted.

The prosecutors have petitioned the U.S. Supreme Court for certiorari. On September 14, 2016, the Guardian newspaper published leaked court documents from the underlying proceedings.

Hughes v. Johnson (2:2015cv07165)

On December 30, 2015, Jefferson D. Hughes III, an associate justice of the Louisiana Supreme Court, filed suit in federal court against four fellow justices, alleging that their decision to remove him from considering a pending case violated his constitutional rights. Hughes claims that by removing him from an environmental remediation case involving contributors to his campaign, his fellow justices violated his First and Fourteenth Amendment rights. Hughes claims that the campaign support was made through independent expenditures that were not coordinated with his campaign, and that his involuntary recusal chills his speech as a judicial candidate.

Wolfson v. Concannon 

Latest Developments:

On 1/27/2016, a unanimous en banc Ninth Circuit upheld all of the canons at issue. Relying on the Supreme Court’s decision in Williams-Yulee, the court found that the limitations on personal solicitation and partisan activities passed constitutional muster. Applying strict scrutiny, the court explained that the challenged provisions of the Arizona Code of Judicial Conduct “further[] a compelling interest and [are] narrowly tailored to achieve that interest.” In concurrence, Judge Berzon emphasized that in addition to the compelling interest in preventing biased decisionmaking, the canons were narrowly tailored to serve an additional compelling interest, “maintaining an independent judiciary.”

Background:

In Arizona, counties with fewer than 250,000 people elect their judges. Both judge and non-judge candidates must comply with the ethical standards set forward by the Arizona Code of Judicial Conduct. In Wolfson v. Concannon, an unsuccessful candidate for judicial office in Arizona has challenged provisions of the Code, alleging they restrict his speech, violating his First Amendment rights. The judicial canons in question include those that prohibit judicial candidates from: (1) making speeches on behalf of political organizations or candidates for public office; (2) publicly endorsing or opposing political candidates publically; (3) soliciting funds on behalf of, or contributing funds to any candidate or political organization in excess of the amounts permitted by law, or making total contributions in excess of fifty percent of the cumulative total permitted by law; (4) actively taking part in any political campaign other than his or her own campaign for election, reelection, or retention in office; and (5) personally soliciting campaign contributions other than through a campaign committee.

A district court ruling upheld the canons, granting summary judgment in favor of the Arizona state officials. However, in a split decision, a three judge panel of the Ninth Circuit of the U.S. Court of Appeals reversed the district court’s decision. The Ninth Circuit panel’s ruling emphasized that it based its analysis on the distinction between judge and non-judge candidates, finding the canons unconstitutional only as applied to the latter group. Where the district court had rejected the notion that judicial candidates ought to enjoy greater freedom to engage in partisan politics than sitting judges, the Ninth Circuit panel found the restrictions on non-judge free speech to be insufficiently narrowly tailored to hold up under strict scrutiny.

The Brennan Center, along with the Arizona Judges’ Association, American Judicature Society, Justice at Stake, and The Campaign Legal Center filed an amicus brief in support of the state’s petition for the case to be reheard en banc.  On September 26, 2014, the Ninth Circuit announced that it will rehear the case en banc. Oral argument took place September 9, 2015.

Hale v. State Farm Mutual Automobile Insurance Company (3:2012cv00660)

This racketeering case concerns allegations that judicial campaign donations led the Illinois Supreme Court to overturn improperly a $1.05 billion judgment in a 2005 consumer class action suit, Avery v. State Farm.  Plaintiffs allege that State Farm Mutual Automobile Insurance Company conspired with Illinois Supreme Court Justice Lloyd Karmeier’s campaign to elect Karmeier to the Supreme Court, with State Farm providing campaign funding in exchange for Karmeier’s vote to overturn the judgment against them. Plaintiffs seek to depose Karmeier and, representing a class identical to the one in Avery, seek treble damages awarded with 14 years of interest.  Karmeir was reelected in an uncontested retention election in November 2014.

U.S. District Judge David Herndon is hearing the case in the Southern District of Illinois. The Seventh Circuit Court of Appeals denied State Farm’s request to grant mandamus relief and halt the case in January 2014. On September 16, 2016, the district court certified the class.

 

Recent Cases of Interest

Faires v. State Board of Elections (15-CVS-15903)

On November 30, 2015, a would-be candidate for the North Carolina Supreme Court and several North Carolina voters filed a lawsuit challenging North Carolina Session law 2015-66, which changed the mechanism for reselection of justices on the state supreme court. The law allowed sitting justices to run in an uncontested retention election rather than a contested election. On March 4, a North Carolina state trial court invalidated the law as violating the state constitution. On May 6, 2016, the North Carolina Supreme Court released a deadlocked 3-3 decision, leaving the intermediate appellate decision undisturbed without precedential value.

Solomon v. Kansas (2015-cv-156) and Fairchild v. Kansas

On February 18, Larry T. Solomon, the Chief Judge for the Thirtieth Judicial District in Kansas, filed suit against the state of Kansas, arguing that a recent law (HB 2338) which strips the Kansas Supreme Court of administrative authority over district courts is unconstitutional and violates the separation of powers doctrine. Voters passed an amendment to Kansas's constitution in 1972 that explicitly gave the Kansas Supreme Court “general administrative authority over all courts in the state,” including district courts. Judge Solomon argues that Kansas’s law violates the constitution by removing the authority to select chief judges from the Kansas Supreme Court and giving it to district courts.

Judge Solomon filed a declaratory judgment action asking the Shawnee County District Court to strike down the law. Judge Solomon is represented by the Brennan Center for Justice, Kaye Scholer LLP, and Irigonegaray & Associates.

While Judge Solomon's challenge was pending, Kansas passed a judicial budget bill (HB 2005) conditioning all judicial funding on the continued viability of HB 2338, the law stripping the Kansas Supreme Court's administrative authority. On September 2, 2015, a judge struck down HB 2338 as a violation of separation of powers in Solomon v. Kansas. The parties jointly requested a stay pending appeal, which was granted by the judge. On September 4, four Kansas district court judges brought suit against the state, challenging the provision in HB 2005 that would completely defund the state judiciary based on the ruling striking down the administrative authority law.

On December 23, the Kansas Supreme Court issued an opinion finding that HB 2338, which removed Kansas Supreme Court of administrative authority over district courts, is unconstitutional.

"[T]he means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature. By enacting sec. 11 of H.B. 2338, the legislature asserted significant control over a constitutionally established essential power of the Supreme Court," wrote Justice Rosen for the majority. 
 
The majority also noted that "our holding appears to have practical adverse consequences to the judiciary budget, which the legislature may wish to address, even though those concerns played no part in our analysis."
 
Justice Stegall wrote a concurring opinion, in which he stated, "While I concur in the result of today's decision...I write separately because, unfortunately, the decision of the majority does little to restore the proper sequestering of the three great governmental powers within their respective departments."
 
Fairchild v. Kansas was resolved in January 2016 when Kansas lawmakers passed a bill that reversed the 2015 law that threatened to defund the Kansas judiciary.

 

Our Coalition