IN THE UNITED STATES COURT OF APPEALSFOR THE AMES CIRCUIT

_______________________________________________

CASE NO. 09-4451_______________________________________________

LOUISE K. McLACHLIN, in her official capacity as Chairperson

of the Ames Judicial Conduct Commission, et al.,DEFENDANTS-APPELLANTS

v.

SAMUEL F. PHILLIPS, PLAINTIFF-APPELLEE

_______________________________________________

BRIEF FOR THE DEFENDANTS-APPELLANTS_______________________________________________

Team Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

Cases iii

United States Constitution v

Federal Statutes vi

Rules vi

QUESTIONS PRESENTED 1

STATEMENT OF FACTS 2

STATEMENT OF JURISDICTION 3

SUMMARY OF ARGUMENT 4

ARGUMENT 6

I. PHILLIPS’S CLAIMS ARE NOT JUSTICIABLE ANDSHOULD NOT BE HEARD. 6 A. Federal courts should abstain from Phillips’s claim under the Pullman

doctrine. 6 B. Phillips’s claims are not ripe for judicial review. 7 C. Because Phillips’s claims fail to establish his continued personal interest and

are not “capable of repetition yet evading review,” they are moot andwarrant dismissal. 9

1. Phillips fails to establish that a controversy in which he has a personal

interest continues to exist. 9

2. The “capable of repetition yet evading review” exception does not apply. 10

II. AMES’S SOLICITATION CLAUSE ISCONSTITUTIONALLY PERMISSIBLE. 12

A. Ames has a compelling interest in the integrity and impartiality of its judiciary. 12

1

B. The Clause is “closely drawn to advance Ames’s interests and should receiveintermediate scrutiny. 13

1. The Clause is a campaign finance restriction that does not regulate

core political speech. 13

2. The Clause alleviates a countervailing Due Process concern. 14

3. Judicial candidates who are sitting judges fall under the Pickering exception. 15

4. The Clause withstands intermediate scrutiny. 16

C. In the alternative, Ames’s Solicitation Clause satisfies strict scrutiny because itis narrowly tailored to further a compelling state interest. 16

CONCLUSION 19 APPENDIX: SELECTED RULES OF THE SUPREME COURT OF AMES 20

2

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner, 387 U.S. 149 (1967) 4, 8 ACLU v. The Fla. Bar, 999 F.2d 1486 (11th Cir. 1993) 11 Alaska Right to Life PAC v. Feldman, 504 F.3d 840 (9th Cir. 2007) 8 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) 7, 8 Buckley v. Valeo,424 U.S. 1 (1976) (per curiam) 5, 13, 14, 16 Caperton v. A.T. Massey Coal Co.,129 S. Ct. 2252 (2009) 12, 14, 18 Carey v. Wolnitzek,614 F.3d 189 (6th Cir. 2010) 14, 17 Chez Sez III Corp. v. Twp. of Union, 945 F.2d 628 (3d Cir. 1991) 6 Erznoznik v. Jacksonville, 422 U.S. 216 (1975) 9, 17 Eu v. S.F. Cty. Democratic Cent. Comm.,489 U.S. 214 (1989) 16 First Nat’l Bank of Boston v. Bellotti,435 U.S. 765 (1978) 11 Golden v. Zwickler, 394 U.S. 103 (1969) 9, 10 Harrison v. NAACP, 360 U.S. 167 (1959) 6 Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) 10

3

Kan. Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008) 4, 7 Lake Carriers’ Ass’n v. Macmullan, 406 U.S. 498 (1972) 7 Landmark Commc’ns, Inc. v. Virginia,435 U.S. 829 (1978) 12 Lehman v. City of Louisville, 967 F.2d 1474 (10th Cir. 1992) 4, 6, 7 Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) 9 Lujan v. Nat’l Wildlife Fed., 497 U.S. 871 (1990) 8 Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270 (1941) 4, 9 McConnell v. FEC,540 U.S. 93 (2003) 12, 13 Murphy v. Hunt, 455 U.S. 478 (1982) 10, 11 Nixon v. Shrink Mo. Gov’t PAC,528 U.S. 377 (2000) 15, 16 O’Shea v. Littleton, 414 U.S. 488 (1974) 10 Pickering v. Bd. of Ed.,391 U.S. 563 (1968) 5, 13, 15 Powell v. McCormack, 395 U.S. 486 (1969) 4, 9 R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) 6 Republican Party of Minn. v. White (White I),536 U.S. 765 (2002) 4, 12, 14, 15

4

Republican Party of Minn. v. While (White II),416 F.3d 738 (8th Cir. 2005) (en banc) 16, 17 Siefert v. Alexander,608 F.3d 974 (7th Cir. 2010) 13, 14, 16, 18 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105 (1991) 15 Storer v. Brown, 415 U.S. 724 (1974) 10, 11 Stretton v. Disciplinary Bd. of the Supreme Court of Pa.,944 F.2d 137 (3d Cir. 1991) 5, 14, 17 United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75 (1947) 9 United States v. Munsingwear, Inc.,340 U.S. 36 (1950) 11 Ward v. Village of Monroeville,409 U.S. 57 (1972) 14 Wash. State Grange v. Wash. State Republican Party,552 U.S. 442 (2008) 17 Weaver v. Bonner,309 F.3d 1312 (11th Cir. 2002) 14 Weinstein v. Bradford, 423 U.S. 147 (1975) 4, 10, 11 Wersal v. Sexton,613 F.3d 821 (8th Cir. 2010) 14, 16, 17 Zwickler v. Koota, 389 U.S. 241 (1967) 7

United States Constitution

U.S. Const. art III, § 2 7

5

Federal Statutes

28 U.S.C. § 1291 (2006) 3

28 U.S.C. § 1331 (2006) 3

28 U.S.C. § 1343 (2006) 3

Rules

Ames SCR 4.020(1) 2, 8

Ames SCR 4.300, Canon 5B(2) passim

6

QUESTIONS PRESENTED

1. Did the district court err in finding that a judicial candidate’s challenge to a provision

of the state code of judicial conduct preventing him from “personally soliciting” donations was

justiciable, where the candidate did not violate the provision before receiving an injunction,

where the provision has never been enforced or officially interpreted by state courts or other

bodies, and where the election has passed and the candidate does not intend to run again?

2. Did the district court improperly apply strict scrutiny to invalidate a provision of the

state code of judicial conduct, where the provision prohibits personal solicitations of campaign

contributions by judicial candidates but provides for alternative means of accumulating

campaign funds and in no way restricts a judicial candidate’s freedom of expression through

either political speech or expenditures?

1

STATEMENT OF FACTS

In 2008, Plaintiff-Appellee Samuel Phillips (“Phillips”) brought suit in federal district

court against Defendants-Appellants Louise McLachlin, Hannah Meltzer, Peter Young, E. David

Hodgson, Jr., and Philip Perlman (collectively, “Defendants”) in their official capacities, alleging

that Canon 5B(2) of the Ames Code of Judicial Conduct (“the Solicitation Clause” or “the

Clause”; see Appendix) violates the First and Fourteenth Amendments. R. at 2. The Clause

prohibits candidates from “personally solicit[ing] campaign funds” during judicial elections, but

permits them to establish committees to “secure and manage” funds. Ames SCR 4.300, Canon

5B(2). The Judicial Conduct Commission has discretionary “authority” to discipline violators of

the Clause. Ames SCR 4.020(1).

Unaware of any prior enforcement of the Clause, and without seeking an advisory

opinion on its interpretation, Phillips, then a state circuit judge, sought to bar enforcement of the

Clause against his Ames Supreme Court campaign. R. at 19-20. Phillips’s intended fundraising

activities included sending letters, hosting fundraising dinners, and going door-to-door, but he

engaged in none of these before securing a preliminary injunction in August 2008. R. at 13-14,

19-20. Phillips lost the November 2008 election, R. at 10, 18, and resolved never to run again

for judicial office. See R. at 21 (“I’m done . . . . It’s time to go back to private practice.”). In

September 2009, the district court granted Phillips’s motion for summary judgment, invalidating

the Clause under strict scrutiny. R. at 25-26. This appeal followed.

2

STATEMENT OF JURISDICTION

The United States District Court for the Middle District of Ames had jurisdiction in this

case as provided in 28 U.S.C. §§ 1331 and 1343(a) (2006). This appeal is from a final order of

the district court disposing of all claims, entered September 17, 2009. R. at 25-26. Defendants-

Appellants filed a timely notice of appeal on September 18, 2009. R. at 27. This court has

jurisdiction under 28 U.S.C. § 1291 (2006).

SUMMARY OF ARGUMENT

Phillips’s claims are not justiciable under the doctrines of Pullman abstention, ripeness,

and mootness. Because resolving the uncertain state-law issue of the Solicitation Clause’s

interpretation would “substantially narrow[]” Phillips’s constitutional claim, Lehman v. City

of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992), and because judicial elections implicate

important state policies, Kan. Judicial Review v. Stout, 519 F.3d 1107, 1120 (10th Cir. 2008),

federal courts should abstain from Phillips’s case under the Pullman doctrine. Furthermore,

Phillips’s failure to violate the Clause before challenging it makes his challenge unfit “for

judicial decision,” and his disavowal of future campaigning means he would suffer no “hardship”

from dismissal; therefore, his claims are unripe. Abbott Labs. v. Gardner, 387 U.S. 136, 149

(1967).

If parties lose a “legally cognizable interest in the outcome,” a case becomes moot.

Powell v. McCormack, 395 U.S. 486, 497 (1969). Phillips’s loss in the election and resolution

to enter private practice have dissolved his stake in the outcome of the case and rendered

the “immediacy and reality” of his case insufficient to warrant declaratory judgment. See Md.

Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). Because he also fails to establish

3

a “reasonable expectation” that he will face an action under the Clause in the future given the

lack of prior enforcement, Phillips’s claims are not “capable of repetition yet evading review”.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Thus, his claims are moot.

Ames’s Solicitation Clause withstands Defendant’s facial and as-applied First

Amendment challenges. The Clause protects the state’s compelling interest in maintaining an

impartial and credible judiciary. Republican Party of Minn. v. White (White I), 536 U.S. 765,

775-80 (2002).

The court should review the regulation under the intermediate scrutiny articulated for

restrictions on campaign contributions in Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per curiam),

not the strict scrutiny applied by the district court. The Clause does not restrict expression

of political opinions through words or expenditures, does not burden core First Amendment

interests, and should not trigger strict scrutiny. See Stretton v. Disciplinary Bd. of the Supreme

Court of Pa., 944 F.2d 137, 145 (3rd Cir. 1991). The appearance or actuality of illicit quid pro

quo is greatly increased by personal solicitation, creating a threat to Due Process; strict scrutiny

may be relaxed where a regulation protects countervailing constitutional values. Likewise, lesser

scrutiny applies when government restricts its employees' speech to maintain governmental

effectiveness. Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968).

The Clause, in targeting the personal solicitations most likely to give rise to quid pro

quo, and allowing sufficient fundraising through campaign committees, is closely drawn to fit a

compelling state interest. It is also narrowly tailored, representing the least restrictive alternative

that is neither under- nor over-inclusive. Thus, it withstands Phillips’s challenge.

4

ARGUMENT

I. PHILLIPS’S CLAIMS ARE NOT JUSTICIABLE AND SHOULD NOT BE HEARD.Phillips’s challenge presents a compelling situation for Pullman abstention, and his

claims are unripe and moot. For these reasons, the claims are not justiciable.

A. Federal courts should abstain from Phillips’s claim under the Pullman doctrine.The Pullman doctrine urges that federal courts abstain from resolving constitutional

questions which “can be avoided” by waiting for “a definitive ruling on [a] state issue” by a state

court. R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Justifications for this

doctrine include judicial efficiency, avoidance of unnecessary constitutional determinations, and

federalism concerns about “friction with state policies.” Id. at 500. These concerns apply here,

and federal courts should abstain from this case until a state court interpretation has been made.

Pullman abstention is appropriate when “(1) an uncertain issue of state law underlies

the federal constitutional claim; (2) the state issues are amenable to [an] interpretation” which

could “substantially narrow[] the scope of the constitutional claim;” and (3) an erroneous

federal interpretation “would hinder important state law policies.” Lehman, 967 F.2d at 1478.

Courts “make a discretionary determination” of the appropriateness of abstention based on

these “and other relevant factors.” Chez Sez III Corp. v. Twp. of Union, 945 F.2d 628, 631 (3d

Cir. 1991). As the district court did not clearly address the abstention issue, the first three factors

are reviewed de novo and the “discretionary determination” is reviewed under an abuse of

discretion standard. See id.

All three factors are met in this case. Phillips’s constitutional claim directly depends on

the proper interpretation of Canon 5B(2), an uncertain issue of state law. A court conceivably

could read the Clause’s “personally solicit” language narrowly or broadly. State courts are

5

capable of providing limiting interpretations of statutes, and any “reasonable room” for a

constitutionally compliant interpretation provides grounds for abstention. Harrison v. NAACP,

360 U.S. 167, 177 (1959). Determining the precise scope of the Solicitation Clause could

also “substantially narrow[]” the constitutional question, in part by addressing vagueness

concerns. Lehman, 967 F.2d at 1478. Finally, judicial elections, as part of a state’s governing

mechanisms, implicate state policies of the highest importance. Kan. Judicial Review, 519 F.3d

at 1120.

Prudential factors also weigh heavily in favor of abstention. The total absence of Ames

precedent construing Canon 5B(2) suggests that state courts should have a chance to interpret

it. See Lake Carriers’ Ass’n v. Macmullan, 406 U.S. 498, 511-12 (1972). Additionally, proper

construction of the Clause will be aided by Ames judges’ particular expertise in state law’s usage

of terms such as “personally” or “solicit.” While abstention is sometimes inappropriate in First

Amendment cases due to concerns that waiting for state courts will chill speech, see Zwickler v.

Koota, 389 U.S. 241, 252 (1967), First Amendment challenges are not exempt from abstention.

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 308 (1979). This case involves

actions within a narrow time by a limited number of judicial candidates; thus, chilling effects are

less problematic here, particularly in Phillips’s as-applied challenge. These compelling reasons,

as well as Ames’s strong interest in regulating its own elections, suggest that the district court’s

failure to abstain constitutes an abuse of discretion and should be overturned.

B. Phillips’s claims are not ripe for judicial review.Due to the desirability of a well-developed factual record and the Constitution’s “case

or controversy” requirement, art. III, § 2, a claim must be sufficiently ripe to be viable.

Consideration of ripeness depends on two factors: “the fitness of the issues for judicial decision

6

and the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at

149. Phillips’s claim fails both of these tests and should be dismissed as unripe.

Phillips’s as-applied challenge is not fit for judicial decision. Phillips did not violate the

Clause by soliciting funds before getting an injunction. R. at 20. Moreover, the Judicial Conduct

Commission merely has the “authority” to impose discretionary discipline on candidates for

violations, Ames SCR 4.020(1), and the record indicates no other prosecutions or official

interpretations of the Clause’s scope. Thus, there is no evidence that its enforcement against

Phillips’s (or anyone’s) constitutionally protected speech is “so much as contemplated,” and

therefore Phillips’s challenge lacks the specific factual setting necessary for ripeness. Alaska

Right to Life PAC v. Feldman, 504 F.3d 840, 849 (9th Cir. 2007); see also Babbitt, 442

U.S. at 304 (declining to issue “purely advisory” opinion before enforcement of allegedly

unconstitutional statute).

Further, requiring Phillips to wait for an actual enforcement action to press his charge

will not pose an undue hardship. The Clause will not force Phillips to “adjust his conduct

immediately” to comply. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 891 (1990). Unlike the

manufacturers in Abbott Laboratories, who risked prosecution should they continue their status

quo advertising activities, Phillips faces no “dilemma” regarding his “day-to-day business.”

387 U.S. at 152. The threat of future enforcement is not “sufficiently direct and immediate as to

render the issue appropriate for judicial review,” id., particularly since Phillips no longer desires

to campaign for office. R. at 21.

Phillips also assails the Clause as facially overbroad, attempting to evade the ripeness

problems of his as-applied challenge. Yet, to avoid “unnecessary interference with a state

regulatory program,” a facial challenge should succeed only where a narrowing interpretation is

7

unavailable and where a “real and substantial” chilling effect exists. Erznoznik v. Jacksonville,

422 U.S. 205, 216 (1975). Here, the record does not suggest that a limiting construction is

unavailable, and the “chilling effect,” far from being substantial, is limited to the intermittent

solicitations by judicial candidates. Hence, Phillips’s overbreadth challenge is not sufficient for

him to overcome ripeness concerns, and his claim should be dismissed.

C. Because Phillips’s claims fail to establish his continued personal interest and are not “capable of repetition yet evading review,” they are moot and warrant dismissal.

1. Phillips fails to establish that a controversy in which he has a personal interest

continues to exist. In general, “a case is moot when the issues presented are no longer ‘live’ or the parties

lack a legally cognizable interest in the outcome.” Powell, 395 U.S. at 497; see also Golden

v. Zwickler, 394 U.S. 103, 110 (1969) (requiring the “the context of a specific live grievance”

for constitutional questions). The requirement that “parties must continue to have a personal

stake in the outcome of the lawsuit” applies to “all stages of federal judicial proceedings, trial

and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990) (internal citations and

quotations omitted). This “is as true of declaratory judgments as any other field.” United Pub.

Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947). Accordingly, the question for each

court “is whether . . . there is a substantial controversy . . . of sufficient immediacy and reality to

warrant the issuance of a declaratory judgment.” Md. Cas. Co., 312 U.S. at 273.

Phillips’s claims no longer constitute an immediate controversy, as the election has

passed, and he has resolved to enter private practice. See R. at 21. Indeed, the Supreme Court

held that a defendant’s challenge to state election law regarding his illegal dissemination of

handbills opposing a sole congressman was rendered moot when that congressman became

a judge serving a fourteen-year term. Golden, 394 U.S. at 109, n.4. Just as Zwickler’s action

8

“precluded a finding that there was ‘sufficient immediacy and reality’” to warrant declaratory

judgment as his opposition to that congressman was unlikely to recur for fourteen years, id.

at 109, Phillips’s challenge is moot, as he has resolved to enter private practice indefinitely.

Although Phillips’s alleged exposure to the Clause may serve as evidence, “[p]ast exposure

to illegal conduct does not in itself show a present case or controversy regarding injunctive

relief . . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton,

414 U.S. 488, 495-96 (1974).

Phillips also has no personal stake in the outcome of the case. Winning would not make

him a judge or affect past or future campaigns, given that he previously had an injunction

enabling him to raise funds and does not intend to run again. R. at 20; cf. Murphy v. Hunt, 455

U.S. 478, 481-82 (1982) (finding that defendant’s challenge to pretrial bail became moot once he

was convicted). Thus, Phillips’s claims are moot.

2. The “capable of repetition yet evading review” exception does not apply.

The Supreme Court has recognized an exception to the mootness doctrine for cases where

resolution on the merits will “simplify[] future challenges” that are reasonably likely to occur.

Storer v. Brown, 415 U.S. 724, 736 n.8 (1974). This “capable of repetition yet evading review”

exception requires: “(1) [a] challenged action . . . in its duration too short to be fully litigated”

and “(2) a reasonable expectation that the same complaining party [will] be subjected to the same

action again.” Weinstein, 423 U.S. at 149 (insertions in original). If Phillips cannot satisfy both,

his case is moot. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188

(1979). 1

1 Because elections particularly are susceptible to time constraints, courts often have presumed in the election context that the first prong is met. See, e.g., Ill. State Bd. of Elections, 440 U.S. at 187. Indeed, here, the District Court’s opinion was issued in September 2009, months after the November 2008 election. R. at 5, 26.

9

Courts have found that a “reasonable expectation” stems from a history of the issue

arising repeatedly, see, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 775 (1978), or

a pattern of enforcement, see ACLU v. The Fla. Bar, 999 F.2d 1486, 1494 (11th Cir. 1993). Not

only has the Clause never been enforced, but Phillips also never sought an advisory opinion to

indicate whether it would be. R. at 19-20. Accordingly, there is no “reasonable expectation” that

the Clause has been or would be enforced.

Phillips could argue that whether his as-applied case is moot, his facial challenge to the

Clause remains within the exception. See Storer, 415 U.S. at 737 n.8. In ACLU, a candidate in a

judicial election sought declaratory judgment on a state judicial code regarding election conduct.

Although the election had ended before the decision, the Court held that the facial challenge

was not moot. ACLU, 999 F.2d at 1488, 1496. There, however, the Florida Bar historically

had enforced the contested provision, and the ACLU had intervened on behalf of other judicial

candidates. Id. at 1492, 1497. In this case, other candidates were not specifically represented;

therefore, in lieu of a class action, the possibility of repetition only concerns Phillips. Murphy,

455 U.S. at 482; cf. Weinstein, 423 U.S. at 149 (holding that a parolee’s challenge of a parole

system was moot upon his release, whether or not the state continued to apply the contested

procedures to others). Because Phillips fails to establish an ongoing controversy and that

the “capable of repetition yet evading review” exception applies, his claims should be dismissed.

United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950).

10

II. AMES’S SOLICITATION CLAUSE IS CONSTITUTIONALLY PERMISSIBLE.The Solicitation Clause forbids judges or judicial candidates to “personally solicit

campaign funds.” Ames SCR 4.300, Canon 5B(2). The Clause does not limit a candidate’s

expenditures or her right to express political opinions, and authorizes the creation of campaign

committees to “secure and manage” funding on a candidate’s behalf. Id.

When reviewing a regulation affecting First Amendment rights, such as the Clause, a

court first must ask whether a constitutionally sufficient interest is implicated. If so, a court then

determines the appropriate standard of review. McConnell v. FEC, 540 U.S. 93, 292 (2003)

(Kennedy, J., concurring). Ames’s interest undeniably is compelling, and the Clause should be

reviewed under intermediate scrutiny. Since the Clause places reasonable limits on fundraising

in judicial elections, it passes intermediate scrutiny and withstands Phillips’s First Amendment

challenge.

A. Ames has a compelling interest in the integrity and impartiality of its judiciary.“There could hardly be a higher governmental interest than a State’s interest in the

quality of its judiciary.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 848 (1978)

(Stewart, J., concurring). Indeed, in White I, the Court made clear that impartiality, understood

as the “lack of bias for or against either party to the proceeding,” constitutes a “compelling”

state interest. 536 U.S. at 775-80. The Court also recognized a “vital” interest in maintaining

the impression of impartiality in the minds of the citizenry. Id. at 793; see also Caperton v. A.T.

Massey Coal Co., 129 S. Ct. 2252, 2266 (2009) (“public confidence in the fairness and integrity

of the nation’s elected judges” constitutes “a vital state interest”).

Judicial impartiality is fundamentally in tension with financial payments to judges.

Campaign donations in judicial elections pose a particularly insidious indirect temptation:

today’s donor could be tomorrow’s litigant, creating, if not actual bias, the damning appearance

11

of an illicit quid pro quo. McConnell, 540 U.S. at 292. This “appearance of and potential for

impropriety is significantly greater when judges directly solicit contributions than when they

raise money by other means.” Siefert v. Alexander, 608 F.3d 974, 989-90 (7th Cir. 2010). Thus,

Ames’s interest in limiting personal solicitations is a key aspect of its overriding interest in an

impartial judiciary. Id.

B. The Clause is “closely drawn” to advance Ames’s interests and should receive intermediate scrutiny.While content-based restrictions on core political speech are generally reviewed

under strict scrutiny, some restrictions, such as limits on campaign contributions, receive

gentler intermediate, or “closely drawn,” scrutiny. Intermediate scrutiny is appropriate here

for three reasons: first, the Clause serves as a limitation on campaign contributions, subject

to intermediate scrutiny under Buckley, 424 U.S. at 1; second, it implicates countervailing

constitutional considerations which make strict scrutiny inappropriate; and third, Pickering, 391

U.S. 563, holds that strict scrutiny is not necessarily applicable to restrictions on the speech of

government employees.

1. The Clause is a campaign finance restriction that does not regulate core political speech.

The Canon is “[a]t heart … a campaign finance regulation.” Siefert, 608 F.3d at 988.

Different gradations of scrutiny apply to various campaign finance regulations: the two-tier

scheme established in Buckley distinguishes limits on expenditures, which are subject to strict

scrutiny, from limits on contributions, which receive intermediate scrutiny. 424 U.S. at 25.

Contribution limitations are permissible if they are “closely drawn” to address a “sufficiently

important interest” such as “prevent[ing] corruption” and its “appearance.” Id. at 25-26.

Because a solicitation is merely an invitation to contribute, the Clause acts as a restriction

on contributions, not expenditures, and should therefore receive intermediate scrutiny. Indeed,

12

the Seventh Circuit applied Buckley’s “closely drawn” scrutiny in reviewing and upholding

Wisconsin’s solicitation ban. Siefert, 608 F.3d at 988. Although several other circuits have

applied strict scrutiny to solicitation bans, see, e.g., Carey v. Wolnitzek, 614 F.3d 189, 200 (6th

Cir. 2010); Wersal v. Sexton, 613 F.3d 821, 765-66 (8th Cir. 2010); Weaver v. Bonner, 309 F.3d

1312, 1322-23 (11th Cir. 2002), these circuits, like Phillips, cite White I, which applied strict

scrutiny to invalidate Minnesota’s “Announce Clause.” 536 U.S. 765. The Announce Clause,

however, restricted judicial candidates’ core political speech, defined as speech “communicating

relevant information to the electorate.” Id. at 782. In contrast, Ames’s Clause restricts requests

for money, which are not a means for candidates to opine on campaign issues and which, even

in the electoral context, are by no stretch of the imagination core political speech. Thus, White I

does not require strict scrutiny, and this court should follow the lead of Buckley and Siefert and

apply closely drawn intermediate scrutiny.

2. The Clause alleviates a countervailing Due Process concern.Many courts applying strict scrutiny ignore the fundamental differences between judicial

and legislative elections. See Stretton, 944 F.2d at 142; White I, 536 U.S. at 798-800 (Stevens,

J., dissenting). Yet this distinction is meaningful, because a judicial election presents compelling

individual constitutional interests on both sides of the equation. See Ward v. Village of

Monroeville, 409 U.S. 57, 62 (1972) (“[D]ue process requires a neutral and detached judge in the

first instance.”). Extreme campaign donations can implicate Fourteenth Amendment concerns by

compromising a judge’s actual or apparent impartiality. See Caperton,129 S. Ct. at 2256 (2009).

In reviewing any solicitation ban, the court must vindicate not only the First Amendment

interests of judicial candidates, but also the Fourteenth Amendment rights of the parties who

will appear before them. Content-based speech restrictions that alleviate “the impairment of

13

some other constitutional right” can receive lesser scrutiny. Simon & Schuster, Inc. v. Members

of N.Y. State Crime Victims Bd., 502 U.S. 105, 124 (1991). Because the Clause falls in this

special category, intermediate scrutiny is appropriate. See also Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377, 402 (2000) (Breyer, J., concurring) (describing the Court’s refusal to “effectively

presume[] unconstitutionality” in the presence of “competing constitutionally protected

interests”).

3. Judicial candidates who are sitting judges fall under the Pickering exception.The Supreme Court has declined to apply strict scrutiny in certain First Amendment cases

where the state has a countervailing interest in “promoting the efficiency of the public services it

performs through its employees.” Pickering, 391 U.S. at 568. Referencing this rationale, Justice

O’Connor noted in her concurrence in White I that the case left unresolved “the question whether

a State may restrict the speech of judges because they are judges—for example, as part of a

judicial code of conduct.” 536 U.S. at 796 (O’Connor, J., concurring). Pickering’s argument is

compelling, both for sitting judges such as Phillips and for judicial candidates who are not yet

government employees. While a campaign donation—the “quid” of the troublesome quid pro

quo—may precede government employment, the “quo” arises afterward, when the candidate

can exert the power of her office. Eliminating such implicit and illicit obligations enhances

the efficiency of Ames’s judiciary, the analogous “public service” provided by the state. The

Pickering framework thus supports the application of intermediate scrutiny to the Clause.

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4. The Clause withstands intermediate scrutiny.To withstand intermediate scrutiny, the challenged law must further an important

government interest, by means that are substantially related to that interest. Ames’s interest in

an impartial judiciary is undeniably important, and the Clause is substantially related to that

concern: it minimizes both actual bias and the appearance of bias associated with a financial

quid pro quo. By singling out “personal” contributions, the Clause recognizes that direct

solicitations by judges significantly raise the risk of apparent impropriety. Siefert, 608 F.3d at

989-90. Restrictions on campaign financing must also allow candidates to accumulate sufficient

resources for effective advocacy. Shrink Mo., 528 U.S. at 395-96; Buckley, 424 U.S. at 21. The

Clause passes that test by explicitly allowing candidates’ campaign committees to raise funds for

them.

In sum, the district court erred in applying strict scrutiny to the Clause. It should have

applied “closely drawn” intermediate scrutiny, a test the Clause passes.

C. In the alternative, Ames’s Solicitation Clause satisfies strict scrutiny because it is narrowly tailored to further a compelling state interest.To withstand strict scrutiny, a law must be “narrowly tailored” to serve a “compelling

state interest.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222 (1989). As discussed

above, Ames has an undeniable compelling interest in an impartial judiciary. A regulation

is “narrowly tailored” when it is necessary, is not overinclusive or underinclusive, and is the

least restrictive alternative to address the compelling state interest. Wersal, 613 F.3d at 833

(citing Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005) (en banc) (White

II)). Ames’s interests are sufficiently compelling, and its solicitation ban sufficiently narrowly

tailored, to meet the requirements of strict scrutiny.

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A law is not “narrowly tailored” if it fails to restrict a significant amount of speech that,

like the restricted speech, also impairs the state interest. While speech outside the context of

campaign solicitations admittedly may give rise to appearances of judicial impartiality, banning

personal requests for money protects against a particularly harmful form of corruption. The

argument that any private financing for judicial campaigns inherently damages the appearance

of impartiality fails to consider that campaign committees, such as those permitted by the

Clause, greatly diminish the impression of improper quid pro quo. Cf. Wersal, 613 F.3d at

839-40. Further, while a statute is not narrowly tailored if it restricts a substantial amount of

protected speech that does not impair the state interest, the Clause specifically targets “personal”

solicitations, such as face-to-face requests and personal telephone calls made by the candidate.

Phillips argues that the Clause unnecessarily restricts protected expression. Yet the

Clause’s natural reading is a narrow ban on such in-person solicitations, and this Court should

decline to adopt any strained constructions widening the sweep of the law beyond its intent. See,

e.g., Stretton, 944 F.2d at 144 (narrowly construing a similar statute to address cases most likely

to arise, thus avoiding constitutionality questions); see also Erznoznik, 422 U.S. at 216 (facial

challenge will not succeed if a statute is “readily subject to a narrowing construction”).

Such a narrow construction would limit the Clause’s scope to activity giving rise to

corruption or its appearance, namely any situation in which a candidate could solicit funds

and learn whether an individual responded to the solicitation. Cf. White II, 416 F.3d at 765.

This narrow reading is clear given the Clause’s purpose, and allows candidates like Phillips to

engage in protected expression, such as speaking to large groups of potential donors or signing

solicitation letters, avoiding overbreadth and overinclusiveness concerns. See Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008); Carey, 614 F.3d at 202.

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Finally, the alternatives available to Ames would be unable to protect the state’s

compelling interests. Recusal, for instance, is clearly insufficient: “[i]t would be unworkable

for judges to recuse themselves in every case that involved a lawyer whom they had previously

solicited for a contribution.” Siefert, 608 F.3d at 990; see also Caperton, 129 S. Ct. at 2258

(describing judge’s refusal to recuse even after a party’s $3 million contribution came to light).

The court should not engage in the more complex and demanding analysis required

to subject the Clause to strict scrutiny. If it were to do so, however, the Clause would resist

invalidation nonetheless. The regulation serves as an appropriate, narrowly tailored protection of

Ames’s compelling interest in an impartial judiciary.

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CONCLUSION

For the foregoing reasons, Defendants-Appellants respectfully request that the district

court’s denial of their motion to dismiss be reversed, or, in the alternative, that the grant of

Plaintiff-Appellee’s motion for summary judgment be reversed.

Respectfully submitted,

Team Appellant

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APPENDIX

SELECTED RULES OF THE SUPREME COURT OF AMES SCR 4.020 Jurisdiction of the Judicial Conduct Commission (1) Commission shall have authority: (a) To order a temporary or permanent retirement of any judge whom it finds to be suffering from a mental or physical disability that seriously interferes with the performance of his duties, and to suspend temporarily from the performance of his duties, without affecting his pay status, any judge (i) against whom there is pending in any court of the United States an indictment or information charging him with a crime punishable as a felony, or (ii) after notice and an opportunity to be heard, and upon a finding that it will be in the best interest of justice that he be suspended from acting in his official capacity as a judge until final adjudication of the complaint, any judge against whom formal proceedings have been initiated under Rule 4.180.(b) To impose the sanctions, separately or collectively of (1) admonition, private reprimand, public reprimand or censure; (2) suspension without pay or removal or retirement from judicial office, upon any judge of the Court of Justice or lawyer while a candidate for judicial office, who after notice and hearing the Commission finds guilty of any one or more of the following:(i) Misconduct in office. (ii) Persistent failure to perform his duties. (iii) Incompetence. (iv) Habitual intemperance. (v) Violation of The Code of Judicial Conduct, Rule 4.300. (vi) Any willful refusal or persistent failure to conform to official policies and directives adopted by the Supreme Court and issued by the Chief Justice in his constitutional capacity as Chief Executive Officer of the Court of Justice. (vii) Conviction of a crime punishable as a felony.(c) After notice and hearing, to remove a judge whom it finds to lack the constitutional and statutory qualifications for the judgeship in question.(d) To refer any judge of the Court of Justice or lawyer while a candidate for judicial office, after notice and hearing found by the Commission to be guilty of misconduct, to the Ames Bar Association for possible suspension or disbarment from the practice of law.(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission. SCR 4.300 Ames Code of Judicial Conduct CANON 5: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY. . . . B. Campaign Conduct . . . (2) A judge or a candidate for election to judicial office may purchase tickets to political gatherings for the judge or candidate and one guest, may attend political gatherings and may speak to such gatherings on the judge’s or candidate’s own behalf. A judge or candidate shall not

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identify himself or herself as a member of a political party in any form of advertising, or when speaking to a gathering. If not initiated by the judge or candidate for such office, and only in answer to a direct question, the judge or candidate may identify himself or herself as a member of a particular political party.

CommentaryA judge or candidate, in purchasing tickets to political gatherings, should be careful that he or she doesn’t create the impression that the purchase is not for the advancement of the judge or candidate but is solely a contribution to another candidate or political organization, which is prohibited.

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