Lead Opinion
Petitioner, Judge L.T. Simes, petitions this court to grant a writ of certiorari to the respondent, the Arkansas Judicial Discipline and Disability Commission (Judicial Commission), quashing a letter of admonishment and declaring it invalid. Petitioner raises several points in support of his argument: (1) that the Judicial Commission did not meet its burden of showing a compelling state interest for enactment of Canon 5C(2) sufficient to justify infringement of protected speech under the First Amendment; (2) that the Judicial Commission did not meet its burden of showing that Canon 5C(2) is narrowly tailored to serve any compelling interest this court may find is consistent with the First Amendment; (3) that Canоn 5C(2) is void in its entirety if found to be an infringement on protected First Amendment speech because of overbreadth; and, alternatively, (4) that there was not sufficient evidence to support the findings of the Judicial Commission. We disagree with all points and deny petitioner’s request to issue the writ of certiorari and to quash the admonishment.
Petitioner was reelected as circuit judge of the First Judicial District in 2004. Following that reelection, Charles Halbert, Jr., a practicing attorney who was a political opponent of the petitioner’s, filed a complaint with the Judicial Commission alleging that, during thе campaign, the petitioner personally called attorneys with cases pending in his court and solicited campaign contributions from them. Two of the attorneys identified by Halbert provided sworn statements to the Judicial Commission. One stated that the petitioner called him directly at his office seeking a campaign contribution and also that the petitioner called him after the complaint was filed with the Judicial Commission to discover how the attorney was going to respond to the Commission’s inquiries. The second attorney gave both a written response and a sworn statement to the Judicial Commission that petitioner, in a telephone call that originally concerned another matter, had asked for the attorney’s support and for a campaign contribution: This second attorney stated that he believed that he was the first to raise the subject of money when he apologized for not having contributed to the campaign, but that the petitioner then indicated that he needed some money for the filing period and asked if that attorney could contribute. A third attorney was identified as a person the petitioner personally solicited for campaign contributions. However, that attorney informed the Judicial Commission that he had no personal knowledge of any direct solicitation by the petitioner and that he had not been personally solicited.
By letter dated June 14, 2004, the petitioner was advised of the complaint filed against him. The petitioner responded by letter dated February 1, 2005, 'denying any personal solicitation, stating that the attorneys who confirmed the solicitation to the Judicial Commission had written letters to him denying that he solicited them for contributions, and opining that the allegations were in retaliatiоn and were “sour grapes.”
On May 16, 2006, a probable-cause hearing was held to investigate the complaint. The report filed by the Judicial Commission found, among other things, that:
(1) the petitioner personally solicited campaign contributions from two attorneys during telephone calls,
(2) one of the attorneys appeared before the petitioner between one and four times a year, although he did not have any cases pending before the petitioner at the time of solicitation, and
(3) the other attorney appeared before the petitioner about two or three times a quarter and had cases pending in the petitioner’s court at the time of the solicitation.
The Judicial Commission, by a vote of six to one, found the petitioner’s actions in violation of Canons 1 and 5C(2) of the Arkansas Code of Judicial Conduct, and a letter of admonishment was issued to the petitioner on May 23, 2006. The petitioner does not challenge the Judicial Commission’s finding with respect to Canon l.
I. Standard of Review
Our standard of review is found in Rule 12E of our Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission. Rule 12E instructs this court to review the entire record and to file a written opinion and judgment either accepting, rejecting, or modifying, in whole or in part, the findings and recommendations of the Judicial Commission. See Ark. Jud. Disc. & Disab. Comm’n R. 12E. This court has previously held that it will not reverse the Judicial Commission’s findings unless they are clearly erroneous, and our review under certiorari is limited to errors appearing on the face of the record. See Griffen v. Ark. Judicial Discipline & Disability Comm’n,
We construe court rules using the same rules of construction as we use to construe statutes. See JurisDictionUSA, Inc. v. Loislaw.com, Inc.,
While the Judicial Commission contends that strict-scrutiny analysis is not appropriate in this case, this court has recognized that the strict-scrutiny test must be applied in cases such as this where the fundamental right of free speech is inhibited. See Griffen v. Ark. Judicial & Disability Comm’n, supra. While a regulation limiting solicitation or acceptance of campaign contributions may seem to limit a judicial candidate’s conduct rather than his political speech, precedent of the United States Supreme Court instructs otherwise. See Buckley v. Valeo,
II. Constitutionality of Canon 5C(2)
The pertinent part of Canon 5C(2) reads:
(2) A candidate shall not personally solicit or accept campaign contributions. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate’s campaign and obtain public statements of support other than from political parties for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers.
Ark. Code of Judicial Conduct Canon 5C(2).
Petitioner’s attack on Canon 5C(2) is based upon the Eighth Circuit’s opinion in Republican Party of Minnesota v. White,
The dispute commenced in the United States District Court for the District of Minnesota. At issue were the so called “announce,” “partisan-activities,” and “solicitation” clauses of Canon 5 of the Minnesota Supreme Court’s canons of judicial conduct. The district court rejected Appellants’ First and Fourteenth Amendment claims, Republican Party of Minn. v. Kelly,63 F. Supp. 2d 967 (D. Minn. 1999), and granted summary judgment to Appellees: the Minnesota Board on Judicial Standards, the Minnesota Lawyers Professional Responsibility Board, and the Minnesota Office of Lawyers Professional Responsibility. Id. at 986. On appeal, a divided panel of this court affirmed the district court. Republican Party of Minn. v. Kelly,247 F.3d 854 (8th Cir. 2001). We denied Appellants’ en banc suggestion. The Supreme Court granted certiorari and held, Republican Party of Minn. v. White,536 U.S. 765 (2002), that the announce clause violates the First Amendment, reversing our holding in Kelly. The Court remanded the case for further proceedings consistent with its opinion. Id. at 788. Upon remand, the same panel, divided as before, again affirmed the district court’s ruling on the solicitation clause and remanded for further consideration in light of White of the partisan-activities clause. Republican Party of Minn. v. White,361 F.3d 1035 (8th Cir. 2004) (vacated). We granted Appellants’ request for en banc review, vacating the panel opinion.
White,
Contrary to the petitioner’s argument, Arkansas’s Canon 5 is not identical to the Minnesota canon discussed by the Eighth Circuit in White. Canon 5B(2) of the Minnesota Code of Judicial Conduct read, in part, that “[a] candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support.”
We agree with petitioner that the central issue now before this court is the extent to which the principles announced by the Eighth Circuit in White are applicable and binding in this case. As set forth above, there are key distinctions between Canon 5C(2) of the Arkansas Code ofjudicial Conduct and Minnesota’s Canon 5. Further, Arkansas’s Canon 5 has come under the scrutiny of this court in a much different context than the Minnesota canon that was considered by the White court.
The White court specifically noted that the candidates challenged “only the fact that they cannot solicit contributions from large groups and cannot, through their campaign committees, transmit solicitation messages above their personal signatures.” White,
We have held that decisions by the Eighth Circuit Court of Appeals are not binding precedent on this court when the cases are factually distinguishable. See Romine v. Ark. Dep’t of Envtl. Quality,
a. Compelling State Interest
The Eighth Circuit in White, as well as petitioner here, recognized that there is a compelling state interest in the independence and impartiality of its elected judges. See White,
The United States Supreme Court explored possible definitions of judicial impartiality in Republican Party of Minnesota v. White,
The first meaning of impartiality determined by the Court was the lack of bias for or against either party involved in a proceeding, assuring equal application of the law. See White,
The second meaning of impartiality the Supreme Court enunciated was as a lack of preconception in favor of or against a particular legal view, but the Court ultimately held that impartiality in that sense was not a compelling state interest. See White,
Our solicitation clause fundamentally differs from the announce clause analyzed by the Supreme Court in White. Therefore, we must determine whether impartiality, meaning open-mindedness, is an interest protected by the canon at issue in the instant case, Canon 5C(2). We hold that it is. Judicial candidаtes, once elected, are especially vulnerable to outside pressure from individuals and/or organizations that may have lent them financial aid during their campaign. See, e.g., Republican Party of Minnesota v. White,
The Judicial Commission has also raised the appearance of impropriety or impartiality as a compelling state interest. We have recognized that an “independent judiciary is essential for our society” and that the “judiciary cannot function without the trust and confidence of the public in the integrity and independence of its judges.” Huffman v. Ark. Judicial Discipline & Disability Comm’n,
The state certainly has a compelling interest ip the public’s trust and confidence in the integrity of our judicial system. Allowing a judge tо personally solicit or accept campaign contributions, especially from attorneys who may practice in his or her court, not only has the possibility of making a judge feel obligated to favor certain parties in a case, it inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate. Attorneys ought not feel pressured to support certain judicial candidates in order to represent their clients. In addition, the public should be protected from fearing that the integrity of the judicial systеm has been compromised, forcing them to search for an attorney in part based upon the criteria of which attorneys have made the obligatory contributions. Thus, we take this opportunity to acknowledge that, in Arkansas, avoiding the appearance of impropriety is also a compelling state interest.
b. Narrowly Tailored
The next issue left to be determined is whether Arkansas’s Canon 5 is narrowly tailored to meet the state’s interests in impartiality and avoiding the appearance of impropriety. Petitioner alleges that Canon 5C(2) is not narrowly tailored to serve those interests and that the rule should be void in its entirety, as it is overly broad.
The Eighth Circuit concluded that Minnesota’s Canon 5 was not narrowly tailored to advance the interest of impartiality. See White,
Similarly, the Supreme Court had previously determined that Minnesotа’s announce clause was not narrowly tailored to serve the interest of impartiality because it did not “restrict speech for or against particular parties, but rather speech for or against particular issues.” Republican Party of Minnesota v. White,
In the instant case, the petitioner was found to have made direct, personal solicitations. Even if our Canon 5 did include an additional provision such as Minnesota’s, which prohibits a judge from being informed of his contributors, it would have played no role in this direct-solicitation scenario. Contrary to the Eighth Circuit’s finding in White, it is very likely in the instant case that the petitioner, or any other judge making such a personal solicitation, would have a “direct, personal, substantial, pecuniary interest in reaching a conclusion [for or] against [a particular litigant in a case]” based upon that litigant’s support. White,
Implicit in the Supreme Court’s and Eighth Circuit’s opinions in White is that Minnesota’s announce clause, partisan-activities clause, and solicitation clauses were pro-incumbent. See White,
Petitioner further argues that our canon is underinclusive and lacks narrow tailoring because judicial candidates are not barred from requesting funds for any purpose other than when it is related to a political campaign. However, we find it important to note that the solicitation clause of Canon 5 is not just one provision that this court has passed, but is part of an integrated system, designed to ensure a fair and impartial judiciary. In Arkansas, for example, judicial candidates who are incumbent judges, are preсluded from using their office for fundraising or membership solicitation at any time. See Ark. Code of Judicial Conduct Canon 4C(3)(b)(iv). In addition, judges are prohibited from using the prestige of the office to advance any private interests or from conveying the impression that someone is in a special position to influence the judge. See Ark. Code of Judicial Conduct Canon 2(B). The Eighth Circuit stated that “[a] clear indicator of the compelling nature of an interest is whether the state has bothered to enact a regulation that guards the interest from all significant threats.” White,
Petitioner further argues that Canon 5C(2) is overly broad since, by its terms, it prohibits speech protected in the Eighth Circuit’s White decision. He claims Arkansas’s canon should be declared void in its entirety. However, as stated earlier, the solicitation issue in White was not a direct and personal one and the speech found to be protected in White was held to be protected because Minnesota had a specific provision prohibiting judges from knowing who contributed to their campaign and who did not. See White,
The question ultimately posed to this court is whether the First Amendment precludes Arkansas from furthering its interests in a fair and impartial judiciary through the speech restriction in Canon 5C(2). We hold it does not. It is further the opinion of this court that a judicial candidate’s personal solicitation or acceptance of contributions is destructive of the state’s compelling interest in a fair and impartial judiciary. We do not believe anyone can seriously argue that a judge personally soliciting cаmpaign contributions from attorneys having cases before him or her should be permissible. Indeed, the petitioner does not contend that such a solicitation would be protected political speech. Instead, he contends that he did not engage in the alleged conduct.
We find that Canon 5 does advance a compelling state interest and that the state is doing nothing more than seeking a balance between allowing people to elect their judges and safeguarding the process so that the integrity of the judiciary and due process will not be compromised. For all of the above reasons, we reject the arguments presented by the petitioner and find that Canon 5C(2) of the Arkansas Code ofjudicial Conduct is narrowly tailored to serve the compelling state interests.
III. Sufficiency of the Evidence
For his final point on appeal, the petitioner contends that the evidence failed to meet the applicable standard of proof to allow for a sanction by the Judicial Commission. Petitioner urges that the Judicial Commission was required to have clear and convincing evidence of misconduct before issuing him the letter of admonishment. However, our review of the rules suggests otherwise.
Rule 9 of our Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission instructs that the Judicial Commission prepare a written report after a probable-cause hearing, containing its findings of fact and its conclusion on each issue. Rule 9E instructs the Judicial Commission on the appropriate methods to dispose of a case, specifically:
(2) If it finds, by concurrence of a majority of members present, that there has been conduct that is or might be or might become cause for discipline but for which an admonition or informal adjustment is appropriate, it may so inform or admonish the judge, direct professional treatment, counseling, or assistance for the judge, or impose conditions on the judge’s future conduct.
Ark. Jud. Disc. & Disab. Comm’n R. 9E(2) (emphasis added).
As previously noted, we will not reverse the Judicial Commission’s findings unless they are clearly erroneous. See Griffen v. Ark. Judicial Discipline & Disability Comm’n,
With this evidence before it, the Judicial Commission, by a vote of six to one, found that there had been conduct that was, or might be, or might become cause for discipline. The Judicial Commission further determined an admonition was appropriate. We conclude that the Judicial Commission’s findings were not clearly erroneous based on this evidence. For the foregoing reasons, we deny the petition for writ of certiorari.
Petition denied.
Notes
Canon 1 of the Arkansas Code of Judicial Conduct provides:
Canon 1. A judge shall uphold the integrity and independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
Ark. Code of Judicial Conduct Canon 1.
Concurrence Opinion
concurring. I concur in the majority’s analysis on the constitutionality of Canon 5C(2) and in the decision reached based on the issues presented in this case; however, I write separately to discuss the lack of clarity in procedure of the Arkansas Judicial Discipline and Disability Commission that would result in a reprimand or censure of a judge.
Rule 9(C) discusses probable cause determination and mandates that this determination is to be made in a “formal meeting” of the Commission. However, Amendment 66 specifically requires notice and a formal hearing before any discipline is imposed, and the meeting provided for in Rule 9 does not constitute a noticed hearing as that concept is commonly understood in Anglo-American jurisprudence. It does not appear to me that under Amendment 66 the Commission is permitted to impоse discipline at a meeting of the Commission.
Amendment 66 plainly provides with respect to discipline, suspension, leave and removal, that while the Commission is to receive, initiate, and investigate complaints of judicial misconduct, and thus logically make a determination of probable cause to proceed, it is only after notice and a formal hearing that a judge may be reprimanded, censured, suspended or removed from office. The Commission under Amendment 66(c) may, after notice and a hearing, reprimand or censure a judge. The Commission may also, again аfter notice and a hearing, recommend to this court that a judge be suspended or removed.
The rules are confused on this issue. They should be redrafted and made consistent with Amendment 66. They should mandate that any reprimand or censure [admonishment or informal adjustment] be undertaken only after a noticed formal hearing. Rule 11 currently provides for such a hearing before making a recommendation to this court to suspend or remove. The decision on lesser disciplinary actions by the Commission should be provided the same hearing. This is consistent with In re Rules 7 & 9, 302 Ark. App’x 633,
While Amendment 66 authorizes the Arkansas Judicial Discipline and Disability Commission to “reprimand or censure” a judge, Rule 9(E) (2) of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission authorizes the Commission to issue an “admonition” or make an “informal adjustment.” Pursuant to this same rule, admonition and informal adjustment mean that the Commission may “inform or admonish the judge, direct professional treatment, counseling, or assistance for the judge, or impose conditions on the judge’s future conduct.” Rule 9(E)(2). The disparity in terms and lack of clarity in Rule 9(E)(2) complicate the analysis.
Amendment 66 created the Arkansas Judicial Discipline and Disability Commission.