Feb. 19, 2009 –U.S. District Judge Barbara Crabb has determined in Siefert v. Alexander (Case No. 08-CV-00126-BBC) that Wisconsin Supreme Court Rules 60.06(2)(b)1, 60.06(4) and the prohibition on endorsing partisan candidates in 60.06(2)(b)4 “are unconstitutional because they violate the First Amendment” and enjoined the Wisconsin Judicial Commission from enforcing these rules against the plaintiff.
In a 65-page decision released Tuesday, February 17, Judge Crabb found that “in light of the Supreme Court’s opinion in White (White I) and defendants’ failure to show that any of the rules challenged by plaintiff is narrowly tailored to promote a compelling state interest, as required under the First Amendment, I must conclude that the rules at issue do not withstand strict scrutiny.”
The three rules in question are:
- SCR 60.06(2)(b)(1) – No judge or judicial candidate may be a member of any political party.
- SCR 60.06(2)(b)(4) – No judge or judicial candidate may publicly endorse political party candidates or platforms.
- SCR 60.06(4) – No judge or judicial candidate may personally solicit or accept campaign contributions, but a candidate may establish a committee to do so and may serve on the committee.
Crabb concluded that “Because the effect of SCR 60.06(2)(b)1, 60.06(2)(b)4 and 60.06(4) is to limit the discussion without providing any appreciable benefit in return, these canons violate the First Amendment and may not stand.”
The Board of Governors took up a request that the State Bar file an amicus brief at its Sept. 12 - 13 meeting. The board reaffirmed the State Bar’s strong support for an independent judiciary and expressed its continuing support for existing regulations as established by the Judicial Commission. While the board agreed not to file an amicus brief at that time, it reserved the right to consider filing an amicus when the case has been decided on the record by the district court and the case is appealed in the 7th Circuit Court of Appeals. At its Feb. 27 meeting, the board voted to send a letter to the state Attorney General urging him to appeal the decision, although several members stressed that they supported such a move in the interest of achieving finality and clarity in this matter and that the letter should not be construed as an endorsement of the state's position in the case.
