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Stretton v. Disciplinary Board of Supreme Court of Pennsylvania

argued: August 16, 1991.

SAMUEL C. STRETTON APPELLANT IN 91-1439
v.
DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA; ROBERT H. DAVIS, JR., PENNSYLVANIA JUDICIAL INQUIRY AND REVIEW BOARD, APPELLANTS IN 91-1398



Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 91-01800.

Cowen, Nygaard, and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge

The Code of Judicial Conduct in force in Pennsylvania states that candidates for a judicial office in an election may not announce their views on disputed legal or political issues. We predict that the state supreme court would construe the restriction to apply only to issues likely to come before the courts. Read in that fashion, the limitation meets constitutional standards and we, therefore, vacate an injunction entered by the district court striking down that provision of the Code. We will affirm the district court's order sustaining the Code's ban on personal solicitation of campaign funds by a candidate for judicial office. 763 F. Supp. 128.

Plaintiff is a lawyer and candidate for judge of the Court of Common Pleas of Chester County, Pennsylvania in an election scheduled for November 5, 1991. He brought suit in the district court contending that his ability to campaign for the position is impeded by the limitations imposed by the Code of Judicial Conduct. The Code, adopted by the Pennsylvania Supreme Court pursuant to authority granted by the state constitution, is applicable to members of the state judiciary and candidates for judicial office.

The complaint sought an injunction against enforcement of Canon 7 of the Code, which bars judicial candidates from announcing their views on disputed legal or political issues and also prohibits personal solicitation of campaign funds. Named as defendants were the Pennsylvania Judicial Inquiry and Review Board, the Disciplinary Board of the state of Pennsylvania, and its Chief Counsel, Robert H. Davis, Jr.

Both entities were sued because the campaign of a lawyer who is a candidate for judicial office is regulated by the Code of Judicial Conduct. See Rule 8.2 of Pennsylvania Rules of Professional Conduct. If the candidate is elected, violations of the Code of Judicial Conduct committed during the campaign come within the jurisdiction of the Judicial Inquiry and Review Board. If the candidate is not elected, the Disciplinary Board would consider infractions occurring during the campaign.

Plaintiff alleged that he wished to protest the fact that currently in the county the Common Pleas judges are all Republicans, a departure from the bipartisan tradition that prevailed until the late 1950's. In addition, he desired to "announce his views" on the following issues:

(a) the need for the election of judges with an "activist" view, and the obligation of judges at every level of the judicial system to look at societal changes when ruling on challenges to existing law;

(b) criminal sentencing and the rights of victims of crime;

(c) "reasonable doubt" and how he would apply that standard as an elected judge;

(d) the need to more closely scrutinize the work of district justices (formerly known as justices of the peace), particularly in light of the removal of several such justices in recent years because of improper conduct;

(e) the need for various changes in judicial administration including the jury selection process (so that panels more accurately reflect the county's racial composition);

(f) the need for greater sensitivity toward hiring minority lawyers and law clerks, especially by the county's judges and district attorney;

(g) plaintiff's qualifications and those of his opponents as well as a perceived need for a woman judge; and

(h) the importance of the right to privacy as a basic constitutional right.

The requests for a preliminary and permanent injunction were consolidated for a hearing. Plaintiff testified that he believed the topics he listed could be considered "disputed legal or political issues," and he feared discussing them because to do so might violate the Code of Judicial Conduct. Defendant Davis, Chief Counsel for the Disciplinary Board, and Robert Keuch, Executive Director and General Counsel of the Judicial Inquiry and Review Board, testified that as they interpreted the Canon, discussion on the topics plaintiff listed would not violate the Code. Both also said that they could not bind the current Boards or their successors by their opinions.

Plaintiff also testified that he desired to send a form letter over his signature soliciting funds for his campaign. Based on experience in other non-judicial political campaigns, he believed that absent a personal appeal, the amount that could be raised would be substantially less. Defendants pointed out that plaintiff was free to appoint a campaign committee to raise funds, but that personal requests for money, particularly from lawyers, would violate the Code.

The district court determined that because a narrow construction of the Code was unlikely, abstention was not appropriate. Acknowledging that the state had a compelling interest in preserving the integrity of its electoral process, the court nevertheless found Canon 7's limitation on speech to be "drastically overbroad. Just as a state may not prohibit a candidate from making any promises to voters . . . it may not prohibit judicial candidates from announcing any of their views at any time in any setting on disputed legal or political issues."

The court noted that within the previous year the American Bar Association adopted a new Model Code that modified the text of the existing Canon because it contained an overly broad limitation on speech. Rejecting defendants' proffered narrow construction, the district judge concluded that he could not rewrite the Code and that its restrictions violated the First Amendment.

In contrast, the court upheld the Code's provision prohibiting personal solicitation of funds by judicial candidates. In that instance, the Canon "is narrowly tailored to achieve the compelling state interests of preventing the reality and the appearance of political corruption as well ...


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