PRESS RELEASE 
Wednesday, August 3, 2005
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Alaska Judicial Conduct Rule Held Unconstitutional

The Federal District Court of Alaska has granted summary judgment against  provisions of the Alaska Judicial Conduct that prohibited state court judicial candidates from responding to a survey by Alaska Right to Life, asking their views on legal and political issues.  The court held that two provisions of Alaska's Judicial Code which forbid judicial candidates from making "pledges or promises" of conduct in office and from "commit[ing] or appear[ing] to commit" on issues are unconstitutional, because they forbid judicial candidates from announcing their views on disputed legal and political issues, which the U.S. Supreme Court has held violates the First Amendment.  Order Regarding Cross-Motions for Summary Judgment, Alaska Right to Life Political Action Committee v. Jeffrey Feldman, No. A04-0239 CV (RRB) (D. Alaska, July 29, 2005).

Alaska Right to Life had sent a survey to candidates for judicial office before the November 2002 election, requesting that they state their views on policies and court decisions related to such matters as same-sex relationships and abortion. Several of the judicial candidates declined to do so, stating they thought they could be punished under the "pledge or promise" or "commit or appear to commit" provisions of the Alaska Code of Judicial Conduct for expressing their views by responding the questions posed in such surveys.

In 2002, the U.S. Supreme Court held unconstitutional a Minnesota rule that prohibited judicial candidates from "announcing their views on disputed legal or political issues."  Republican Party of Minnesota v. White, 536 U.S. 765 (2002)  Alaska Right to Life thus brought suit against members of the Alaska Commission on Judicial Conduct and the Alaska Bar Association charging that the Alaska  "pledge or promise" and "commit" provisions were unconstitutional, because they were used to forbid the same speech that the Minnesota "announce" clause had prohibited.

According to James Bopp, Jr., counsel for Alaska Right to Life, the Alaska rules "contradict the U.S. Supreme Court's decision, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say." Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in White, stated that Alaska's rules and policy were being interpreted to "cover the same unconstitutional ground" as Minnesota's rule that prohibited judicial candidates from announcing their views had done. 

The Alaska district court agreed, stating that the "the 'pledges and promises clause' and the 'commitment clause' found in the Alaska Code of Judicial Conduct . . . prohibit the same type of constitutionally-protected speech guaranteed by the United States Supreme Court in Republican Party of Minnesota v. White."  According to the court, these provisions "impermissibly prohibit[] judges standing for retention from announcing their views on disputed political, legal, and social issues."  As such, they "impermissibly burden[] free speech and violate[] the First Amendment of the Constitution."

This is the third federal court to hold the "pledges and promises" and the "commits" clauses unconstitutional. These provisions are part of the 1990 ABA Model Code of Judicial Conduct.  Suits brought prior to the 2004 election in Kentucky and North Dakota successfully challenged similar provisions earlier this year. A challenge to Indiana's canons is still ongoing in federal court.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.