No.

In The

Supreme Court of the United States____________

THE HONORABLE JOHN SIEFERT, Petitioner,v.

JAMES C. ALEXANDER, ET AL., Respondents.____________

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Seventh Circuit

____________

Petition for a Writ of Certiorari____________

James Bopp, Jr. Counsel of RecordAnita Y. WoudenbergJosiah NeeleyBOPP, COLESON &

BOSTROM

1 South 6th StreetTerre Haute, IN 47807812/232-2434 (voice)812/235-3685 (facsimile)Counsel for Petitioner

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Questions Presented

This Court in Republican Party of Minnesota v.White, 536 U.S. 765 (2002) established that the FirstAmendment protects judicial campaign speech andsubjects regulation of such speech to strict scrutiny.Wisconsin, like many other states, has adopted judicialspeech restrictions that ban judicial candidates frompersonally soliciting campaign contributions and fromendorsing other candidates for public office. TheSeventh Circuit below rejected the strict scrutinystandard that was employed in White and that hasbeen employed by the Sixth, Eighth, and EleventhCircuits. Instead, it upheld these judicial candidatespeech restrictions by applying intermediate scrutinyreserved for contribution limits to the personalsolicitation clause and a balancing test traditionallyused in the context of federal employees to the endorse-ment clause. Based on this decision, in Bauer v.Shepard, No. 09-2963, WL 3271960 (7th Cir. Aug. 20,2010), for which a writ of certiorari has also beensought, the Seventh Circuit has now also upheldprohibitions on other common and essential judicialcampaign activities, ultimately requiring judicialcandidates to seek government permission to announcetheir views on disputed political issues, which thisCourt in White held could not be constitutionallyrequired.

(1) Whether restrictions on judicial campaignspeech are uniformly subject to strict scrutinyunder the First and Fourteenth Amendmentsto the United States Constitution, which shou-ld be applied here;

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(2) Whether the prohibition on judicial candidatessoliciting funds for their own campaign isunconstitutional under the First and Four-teenth Amendments to the United StatesConstitution;

(3) Whether the prohibition on judicial candidatessoliciting funds for their own campaign isunconstitutional as applied to personal phonecalls, signing fundraising letters, and person-ally inviting potential donors to fundraisers, inviolation of the First And Fourteenth Amend-ments to the United States Constitution;

(4) Whether the prohibition on judicial candidatesendorsing other candidates for public office isunconstitutional under the First and Four-teenth Amendments to the United StatesConstitution.

(5) Whether the prohibition on judicial candidatesendorsing other candidates for public office isunconstitutional as applied to endorsing Presi-dential candidates, in violation of the First andFourteenth Amendments to the United StatesConstitution.

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Parties to the Proceedings

The following individuals and entities are parties

to the proceedings in the court below:

The Honorable John Siefert, Plaintiff-Appellee;

James C. Alexander, Larry Bussan, Ginger Alden,Leo Bach, Jennifer Orales, John R. Dawson, David A.Hansher, Gregory A. Peterson, Defendants-Appellants.

Corporate Disclosure Statement

The Petitioner is not a corporation, has no parent

corporation, and has no publicly held stock. Rule 29.6.

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Table of Contents

Questions Presented. .................................................. i

Parties to the Proceedings. ........................................ ii

Corporate Disclosure Statement. .............................. ii

Table of Contents. .................................................... iii

Table of Authorities. .................................................. v

Petition for a Writ of Certiorari................................. 1

Opinions Below........................................................... 1

Jurisdiction................................................................. 1

Constitution, Statutes & Regulations Involved........ 1

Statement of the Case................................................ 1

I. The Facts. ......................................................... 2

II. The History of the Litigation.......................... 3

Reasons for Granting the Petition............................. 4

I. This Case Involves The Important Ques-tion Of Whether Restrictions on JudicialCandidate Speech Are Subject to StrictScrutiny, Which Should be AppliedHere................................................................ 5

II. The Seventh Circuit Establishes A RegimeThat Conflicts With This Court. ................... 8

A. Closely Drawn Scrutiny Is The WrongStandard.................................................. 9

B. A Balancing Test Is The Wrong Standard ............................................... 10

III. The Seventh Circuit Decision Conflicts With Other Circuit Decisions On the Same Important Matter... ........................... 13

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A. The Personal Solicitation Clause IsUnconstitutional. .................................. 13

B. The Endorsement Clause Is Unconstitutional.. ................................. 18

Conclusion. ............................................................... 23

Appendix

Opinion below, Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) (filed June 14, 2010).... 1a

District Court opinion on cross-motions for summary judgment, Siefert v. Alexander, 597 F. Supp. 2d 860 (filed February 17, 2009). ................................................................ 45a

En banc opinion below, Siefert v. Alexander, No.09-1713, 2010 WL 3397459 (7th Cir. 2010)(filed August 31, 2010). ........................... 107a

U.S. Const. amend. I...................................... 110a

Wisconsin Supreme Court Rule 60.06(2)(b).. 110a

Wisconsin Supreme Court Rule 60.06(4). ..... 111a

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Table of Authorities

Cases

Bauer v. Shepard, 634 F. Supp. 2d 912 (N.D. Ind.2009). .............................................................. 7 n.3

Bauer v. Shepard, No. 09-2963, WL 3271960 (7th Cir. Aug. 20, 2010). .............................................. 4

Buckley v. Illinois Judicial Inquiry Board, 977 F.2d 224 (7th Cir. 1993). ..................................... 5

Buckley v. Valeo, 424 U.S. 1 (1976). ............ 5, 8, 9, 17

Caperton v. A.T.. Massey Coal Company, 129 S.Ct. 2252 (2009)........................................... 7 n.3

Carey v. Wolnitzek, Nos. 08-6468, 08-6538, WL2771866 (6th Cir. 2010). .................... 7, 13, 16, 18

Citizens United v. FEC, 130 S.Ct. 876 (2010)..................................................... 4, 6, 8, n.3

Davis v. FEC, 128 U.S. 2759 (2008). ....................... 12

Elrod v. Burns, 427 U.S. 437 (1976)......................... 10

Eu v. San Francisco County Democratic CentralComm., 489 U.S. 214 (1989). ................................... 12

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007).................................................................... 4

Garcetti v. Ceballos, 547 U.S. 410 (1951). ........... 9, 10

McConnell v. FEC, 540 U.S. 93 (2003). .................. 10

Pickering v. Bd. Of Ed. Of Twp. High School. Dist.205 Will County, Ill., 391 U.S. 563 (1968). ... 9, 10

Randall v. Sorrell, 548 U.S. 230 (2006). .............. 9-10

Renne v. Geary, 501 U.S. 312 (1991). ..................... 12

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Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005). ............................... 6, 7, 13-21

Republican Party of Minnesota v. White, 536 U.S. 765 (2002)................................. 4, 8, 12, 13, 19, 20

Rosenberger v. Rector, 515 U.S. 819, 828-29 (1995).................................................................. 10

Siefert v. Alexander, 597 F. Supp. 2d. 860 (W.D. Wis. 2009)............................................................. 1

Siefert v. Alexander, No. 09-1713, 2010 WL 3271960 (7th Cir. June 14, 2010)........................ 1

Siefert v. Alexander, No. No. 09-1713, 2010 WL3397459 (7th Cir. Aug. 31, 2010). ....................... 1

Stretton v. Pennsylvania, 944 F.2d 137 (3d Cir. 1991). ...................................... 5, 13-14- 16, 17 n.4

U.S. Civil Serv. Comm’n v. Nat’l Assoc. of LetterCarriers, 413 U.S. 548 (1973). ....................... 9, 10

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) .................................................. 10

United States v. National Treasury Employees Union, 513 U.S. 454 (1976). .............................. 10

Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002). ........................................................ 6, 13, 18

Wersal v. Sexton, No. 09-1578, 2010 WL 2945171(8th Cir. July 29, 2010)................ 6, 7, 13-16, 2-22

Constitution, Statutes, Regulations & Rules

U.S. Const. amend. I. ....................................... passim

28 U.S.C. § 1254(1)..................................................... 1

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52 Minn. Stat. Ann., Code of Judicial Conduct,Canon 4.1(A)(3). ................................................. 19

Wis. Stat. § 757.81(4)(a)............................................. 3

Wis. Stat. § 757.85. .................................................... 3

Wisconsin Supreme Court Rule 60.06(2)(b)1. ............................................... 1, 2 n.1

Wisconsin Supreme Court Rule 60.06(2)(b)(4). ....................................... 1, 2, 10 ,13

Wisconsin Supreme Court Rule 60.06(2)(c). ........... 19

Wisconsin Supreme Court Rule 60.06(4). ......... 1, 2, 9

Petition for a Writ of Certiorari

Petitioner Judge Siefert respectfully requests awrit of certiorari to review the judgment of the U.S.Court of Appeals for the Seventh Circuit in this case.

Opinions Below

The order of the court of appeals affirming in partand reversing in part the district court is at 608 F.3d974. App. 1a. The district court opinion is at 597 F.Supp. 2d 860. App. 45a. Denial of rehearing en banc isat 2010 WL 3397459. App. 107a.

Jurisdiction

The court of appeals upheld the district court’sdecision on June 14, 2010. App. 1a. Petitioner’sPetition for Rehearing En Banc was denied August 31,2010. App. 107a. This Court’s jurisdiction is invokedunder 28 U.S.C. § 1254(1).

Constitution, Statutes & RegulationsInvolved

U.S. Const. amend. I is in the Appendix at 110a.Wisconsin Supreme Court Rule 60.06(2)(b)1 is at 110a.Wisconsin Supreme Court Rule 60.06(2)(b)4 is at 110a.Wisconsin Supreme Court Rule 60.06(4) is at 111a.

Statement of the Case

This case presents a constitutional challenge byJudge Siefert, a sitting judge and judicial candidate inWisconsin’s 2011 election, to Wisconsin’s judicialpersonal solicitation and endorsement clauses, Wisco-nsin Supreme Court Rules (“SCR”) 60.06(4),60.06(2)(b)(4), because the clauses impose a substantialand unconstitutional limit on his political speech bybanning his personal solicitation of campaign

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contributions and his endorsement of other candidatesfor public office. Specifically, Wisconsin prohibits1

judicial candidates from “personally solicit[ing] oraccept[ing] campaign contributions,” SCR 60.06(4), andfrom “publicly endors[ing] or speak[ing] on behalf of itscandidates or platforms,” SCR 60.06(2)(b)(4). Theseprovisions limit Judge Siefert’s ability to engage inprotected political speech and are unconstitutional ontheir face and as applied to the endorsements andsolicitations he desires to make.

I. The Facts.

Wisconsin state court judges are selected througha process of non-partisan judicial elections. Regulationof judicial conduct, as well as the conduct of candidatesfor judicial office, is governed by the Wisconsin Code ofJudicial Conduct (“the Canons”), found in Chapter 60of Wisconsin’s Supreme Court Rules. SCR 60.01 et seq.The Code’s solicitation clause provides that a “judge,candidate for judicial office, or judge-elect shall notpersonally solicit or accept campaign contributions.”SCR 60.06(4). And the endorsement clause bans judgesand judicial candidates from “[p]ublicly endors[ing] orspeak[ing] on behalf of [a political party’s] candidatesor platforms.” SCR 60.06(2)(b)(4). These clauses,amended in 2007, were recognized by three WisconsinSupreme Court justices to be constitutionally infirmunder the First Amendment, who dissented from theiradoption. AC ¶ 16 and Ex. 1.

The case below also involved a challenge to Wiscon-1

sin’s partisan affiliation ban. SCR 60.06(2)(b)1. The SeventhCircuit found the ban unconstitutional, App. 11a-16a. Thisruling has not been appealed by the state.

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The Petitioner, Judge John Siefert, has served asa Milwaukee County Circuit Court Judge since August1, 1999. AC ¶ 18. He is up for reelection in 2011. AC2

¶ 18. As a judge, he is bound by the Canons andpotentially subject to discipline for his conduct. AC¶ 18.

Judge Siefert wanted to make personal phone callsand personal invitations to fundraising events, andsign letters seeking contributions to his upcoming 2011election campaign. AC ¶ 21. He would also like toendorse then-Senator Obama for President in 2008 andwould like to endorse candidates during the upcoming2011 election cycle. AC ¶ 20. Despite the fact that noneof these activities would bias him for or against aparticular party or class of parties, nor impair hisability to be openminded, Judge Siefert is prohibitedfrom engaging in such political speech and fearsdiscipline if he violated the clauses’ prohibitions. AC¶ 21.

Respondents, as members of Wisconsin’s JudicialCommission, are charged with investigating possiblemisconduct of Wisconsin judges. Wis. Stat. § 757.85.“Misconduct” includes the “[w]illful violation of a ruleof the code of judicial ethics.” Wis. Stat. § 757.81(4)(a).AC ¶ 7. Judge Siefert seeks to permanently enjointheir enforcement of the clauses. AC ¶ 48.

II. The History of the Litigation

Judge Siefert filed his Verified Complaint onMarch 3, 2008. On February 17, 2009, on cross-motionsfor summary judgment, the district court declared the

Plaintiffs’ Amended Complaint for Declaratory and2

Injunctive Relief (“AC”) was verified by Judge Siefert.

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challenged canons unconstitutional. Respondentsappealed the decision on March 18, 2009, resulting ina reversal of the district court’s ruling on theendorsement and solicitation clauses on June 14, 2010.Judge Siefert sought rehearing on banc, which wasdenied with Judges Rovner, Wood, Williams, andHamilton dissenting, on August 31, 2010. App. 108a.

Reasons for Granting the Petition

The Seventh Circuit’s ruling in this case, compoun-ded by its subsequent ruling in Bauer v. Shepard, No.09-2963, WL 3271960 (7th Cir. Aug. 20, 2010), hasvitiated the important First Amendment protectionsfor judicial campaign speech established in RepublicanParty of Minnesota v. White, 536 U.S. 765 (2002)(“White I”). In so doing, the Seventh Circuit establishesa regime where ordinary, standard, and indeed,essential, campaign practices of judicial candidates areprohibited and where judicial candidates will berequired to seek government approval beforeannouncing their views on disputed legal and politicalissues. This result is contrary to this Court’s holdingsin White I, FEC v. Wisconsin Right to Life, 551 U.S.449 (2007) (“WRTL”), and Citizens United v. FEC, 130S.Ct. 876 (2010).

This new regime also conflicts with decisions ofseveral other circuits that have reviewed restrictionslike those at issue here, including decisions of theSixth, Eight and Eleventh Circuits and arguably theThird and a previous decision of the Seventh. ThisCourt should grant certiorari and decide this case onthe merits.

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I. This Case Involves An Important Question ofLaw Whether Restrictions on JudicialCandidate Speech Are Subject to StrictScrutiny, Which Should be Applied Here.

Political speech traditionally enjoys the greatestconstitutional protection under the First Amendmentof the United States Constitution, with restrictions onit subject to strict scrutiny. See Buckley v. Valeo, 424U.S. 1, 15 (1976).

In White I, this Court reviewed Minnesota’sannounce clause, which prohibited judicial candidatesfrom stating their views on disputed legal and politicalissues and applied strict scrutiny to it, recognizing thatthe clause “both prohibit[ed] speech on the basis of itscontent and burden[ed] a category of speech that is ‘atthe core of our First Amendment freedoms’—speechabout the qualifications of candidates for public office.”536 U.S. at 774.

In reviewing Minnesota’s announce clause, theWhite I court affirmatively cited Buckley v. IllinoisJudicial Inquiry Bd., 997 F.2d 224 (7th Cir. 1993),which had applied strict scrutiny to strike Illinois’announce clause. In doing so, the Seventh Circuitacknowledged a conflict with the Third Circuit inStretton v. Pennsylvania, 944 F.2d 137 (3d Cir. 1991),which had upheld Pennsylvania’s announce clause,while applying strict scrutiny to it. Id. at 141, 146.While White I resolved the conflict by effectivelyoverruling the Stretton case and upholding the SeventhCircuit Buckley case, both cases applied strict scrutinyto the judicial campaign speech rstrictions before them.

Likewise, on remand from the White I decison, the

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Eighth Circuit in Republican Party of Minnesota v.White, 416 F.3d 738 (2005) (White II) applied strictscrutiny. The en banc White II court reviewednumerous other judicial campaign speech canons,including Minnesota’s personal solicitation clause,which stated: “A candidate shall not personally solicitor accept campaign contributions or personally solicitpublicly stated support.” Id. at 746. Adopting the WhiteI rationale, that court recognized judicial campaigncanons are inherent content-based and applied strictscrutiny. 416 F.3d at 749, 763-64. Under strict scrutinyreview, the canons were held unconstitutional becausethey failed to protect litigants from purportedpartiality concerns. Id. at 754, 765-66.

This holding was reinforced in the recent EighthCircuit decision Wersal v. Sexton, No. 09-1578, 2010WL 2945171 (8th Cir. July 29, 2010). There, theEighth Circuit again followed White I as well asCitizens United by applying strict scrutiny toMinnesota’s personal solicitation and endorsementclause. Wersal, 2010 WL 2945171 at *3. Significant tothe Wersal court was this Court’s view in CitizensUnited that “‘political speech simply cannot be bannedor restricted as a categorical matter.’” Id. at *3 (quotingCitizens United, 130 S.Ct. at 898). Under strictscrutiny, both the personal solicitation clause and theendorsement clause failed. Id. at *12, *15.

In Weaver v. Bonner, 309 F.3d 1312 (11th Cir.2002), the Eleventh Circuit reviewed challenges tovarious Georgia judicial campaign canons, including itspersonal solicitation clause, which precluded judicialcandidates from “themselves solicit[ing] campaignfunds, or solicit[ing] publicly stated support.” Id. at

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1315. Like the White II and Wersal court, the Weavercourt applied strict scrutiny, id. at 1319, and foundthat the challenged canons failed to serve anycompelling interest in judicial impartiality. Id. at 1322,1323.

The Sixth Circuit recently weighed in on this issuein Carey v. Wolnitizek, Nos. 08-6468, 08-6538, 2010 WL2771866 (6th Cir. July 13, 2010). Reviewing achallenge to a commits clause, a party affiliationclause, and a personal solicitation clause, the courtheld that “[s]trict scrutiny applies to all three aspectsof this First Amendment challenge. White, for one,suggests as much.” Id. at *6. The court noted that“[n]ot one of the Justices, not even one of the fourdissenters, objected to the application of strictscrutiny,” and that, if it did not broadly apply to alljudicial campaign speech, “it is difficult to understandwhy the Court exercised its discretion in reviewingWhite, given that virtually the entire analysis ispremised on the applicability of strict scrutiny andgiven that the outcome of the case under a lower levelof scrutiny is far from clear.” Id. at *6. Recognizing thecontent-based nature of the challenged clauses, id. at*7, the Sixth Circuit went on to find the partisanaffiliation and personal solicitation clauses faciallyunconstitutional, remanding ambiguities in the scopeof the commits clause to the district court for furtherconsideration. Id. at *17.3

Efforts to narrow White I’s application by looking to 3

this Court’s judicial recusal case Caperton v. A.T. MasseyCoal Company, 129 S.Ct. 2252 (2009) has gained limitedtraction. See, e.g., Bauer v. Shepard, 634 F. Supp. 2d 912

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Despite White I and the circuits’ consistentapplication of the strict scrutiny standard torestrictions on judicial campaign speech, the SeventhCircuit has now determined that other, more forgivingstandards apply. In finding the personal solicitationclause constitutional, the Panel employed “closelydrawn” scrutiny, relying on Buckley’s application of“less rigorous ‘closely drawn’ scrutiny” to campaigncontribution limits. App 27a (quoting Buckley, 424 U.S.at 25). And in finding the endorsement clauseconstitutional, the Seventh Circuit employed abalancing test applicable to restrictions on politicalspeech by government employees. App. 17a. Theresulting effect has been to outlaw ordinary andessential campaign speech by judicial candidates.

II. The Seventh Circuit Establishes A RegimeThat Conflicts With this Court.

In analyzing the clauses before it, the Siefert courtattempts to harmonize what it perceives as twoconflicting Supreme Court precedents. App. 11a. Itacknowledges that in White I, this Court applied strictscrutiny to judicial speech regulations. App. 8a. Butthen it contends that White I left open the possibilitythat the balancing test applicable to governmentemployees might apply, App. 8a, and that this Courtuses a lower standard of review for restrictions oncontributions than on spending in Buckley. App. 27a.Because the personal solicitation clause relates to

(N.D. Ind. 2009). This Court in Citizens United, 130 S.Ct.876 has firmly closed that door: “Caperton's holding waslimited to the rule that the judge must be recused, not thatthe litigant's political speech could be banned.” Id. at 910.

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contributions, the lower court applied Buckley’s “closelydrawn” scrutiny rather than strict scrutiny. App. 27a.And because it reasoned that the endorsement clausereached a “different form of speech that serves apurpose distinct from the speech at issue in White I,” itadopted the balancing approach used for governmentemployee speech in U.S. Civil Serv. Comm’n v. Nat’lAssoc. of Letter Carriers, 413 U.S. 548 (1973), Garcettiv. Ceballos, 547 U.S. 410 (1951), and Pickering v. Bd.Of Ed. Of Twp. High School. Dist. 205, Will County,Ill., 391 U.S. 563 (1968). App. 17a.

The use of anything but strict scrutiny to analyzethese canons conflicts with this Court’s jurisprudence.

A. Closely Drawn Scrutiny Is The WrongStandard.

The personal solicitation clause prohibits judicialcandidates from “personally solicit[ing] or accept[ing]campaign contributions.” SCR 60.06(4). The SeventhCircuit applied intermediate scrutiny, reasoning thatsince it was “dealing with regulation of campaigncontributions, we therefore proceed with the analysisunder Buckley,” which distinguished “restrictions onspending by candidates and parties [and] reviewed[them] with strict scrutiny,” from “restrictions oncontributions [that] are reviewed under less rigorous‘closely drawn’ scrutiny.” App 27a-28a.

In Buckley, this Court held that contribution limitsare subject to lesser scrutiny than spendingrestrictions, 424 U.S. at 25, because contributions aremore an exercise of associational rights than speechrights. Contributions can be limited, provided they arenot too low, Randall v. Sorrell, 548 U.S. 230, 232

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(2006), and serve a sufficiently important interest.McConnell v. FEC, 540 U.S. 93, 135 (2003). However,the personal solicitation clause limits speech, notcontributions, based on the topic and the speaker. SeeCarey, WL 2771866 at *8.

This Court’s precedent has consistently held thatcontent-based speech regulations are subject to strictscrutiny. See, e.g., United States v. Playboy Entm’tGroup, Inc., 529 U.S. 803, 813 (2000); Rosenberger v.Rector, 515 U.S. 819, 828-29 (1995). That the SeventhCircuit applied less that strict scrutiny to a content-based speech restriction conflicts with that precedent,warranting review.

B. A Balancing Test Is The Wrong Standard.

The endorsement clause prohibits judicialcandidates from “[p]ublicly endors[ing] or speak[ing] onbehalf of [a political party’s] candidates or platforms.”SCR 60.06(2)(b)(4). The Seventh Circuit reasoned that,because the clause’s purpose is distinct fromannouncing views, it would use the governmentalemployee “balancing approach, not strict scrutiny, [a]sthe appropriate method of evaluating the endorsementrule.” App. 17a.

This Court established a balancing test to reviewgovernment employee speech regulations, reasoningthat, when public employees are engaged in theirofficial duties, they are not acting as citizens and sotheir speech is not protected by the First Amendment.Garcetti, 547 U.S. at 421. Instead, their speech rightsare balanced against the state’s interest in performingits important governmental function. Id. at 420. Thusthe district attorney in Garcetti who, during the

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exercise of his duties, wrote a disposition memoadvising his superior on a course of action couldlegitimately be disciplined for the content of the memo.

However, the state cannot force an employee torelinquish her constitutional rights as a citizen inorder to secure public employment. Pickering, 391 U.S.at 568. Thus, teachers cannot be dismissed because ofspeech they engaged in outside of their employment,absent a showing of defamation or otherconstitutionally-recognized circumstance. Id. at 574.

Indeed, the Letter Carriers decision, whichaddressed the Hatch Act’s political speech restrictionon government employees, was directed towards“protect[ing] employees’ rights, notably their right tofree expression,” United States v. National TreasuryEmployees Union, 513 U.S. 454, 471 (1976), bypreventing ranking officials from making“advancement in the Government service ... depend onpolitical performance.” Letter Carriers, 413 U.S. at 566;see also Elrod v. Burns, 427 U.S. 437, 366-67 (1976).

None of these cases have ever stood for theproposition that elected officials’ speech, includingjudicial candidates’ speech, could likewise be restricted.See App. 35a (Rovner, J., dissenting). It is one thing toregulate the speech of unelected public employees whoonly answer to the government as their employer; it isquite another to regulate the campaign speech of publicofficials, who are required to stand for election, whoare beholden to the public at large. App. 35a.

Indeed, the fundamental purpose of the FirstAmendment’s speech clause is to protect politicalspeakers during campaigns: “‘The role that elected

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officials play in our society makes it all the moreimperative that they be allowed freely to expressthemselves on matters of current public importance.”White I, 536 at 781 (quoting Eu v. San FranciscoCounty Democratic Central Comm., 489 U.S. 214, 222-223 (1989)). Thus, “‘If the State chooses to tap theenergy and the legitimizing power of the democraticprocess, it must accord the participants in that process... the First Amendment rights that attach to theirroles’.” White I, 536 U.S. at 788 (quoting Renne v.Geary, 501 U.S. 312, 349 (1991) (Marshall, J.,dissenting)). Requiring a judicial candidate to run foroffice, but then prohibiting her from campaigning,violates the First Amendment.

Even if the government employee cases were notexclusively directed at the peculiarities of unelected,government employees, judicial campaign speechrestrictions present another problem: They apply to alljudicial candidates, whether incumbent or challenger.At most, the balancing test could apply only to judges’speech, effectively establishing two speech standards,depending on the speaker. Such discriminatory speechstandards contravene this Court’s holding in Davis v.FEC, 128 U.S. 2759 (2008), which unequivocallydenounced asymmetrical campaign restrictions amongcompeting candidates. Id. at 2764 (“This Court hasnever upheld the constitutionality of a law thatimposes different ... limits for candidates competingagainst each other.”). A balancing test is thus not onlyinapplicable; it is unconstitutional.

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III. The Seventh Circuit Decision ConflictsWith Other Circuit Decisions On theSame Important Matter.

As evidenced above, the Seventh Circuit’s decisionto apply a lesser standard of review to the personalsolicitation clause and an balancing test to theendorsement clause conflicts not only with White I butwith numerous other circuits that have applied WhiteI in other judicial speech contexts. This fundamentalerror resulted in a improper conclusion that alsoconflicts with those circuits: That the personalsolicitation clause and the endorsement clause areconstitutional. This Court should grant the writ toharmonize the Seventh Circuit’s ruling with those ofother circuits.

A. The Personal Solicitation Clause IsUnconstitutional.

Judge Siefert wants to make personal phone callsasking for funds, to make personal invitations topotential donors to his campaign’s fundraising events,and to sign letters seeking contributions to hisupcoming 2011 election campaign. (Siefert Decl., Doc.34, ¶ 24.) He is prohibited by Wisconsin’s personalsolicitation clause, which states that a “judge,candidate for judicial office, or judge-elect shall notpersonally solicit or accept campaign contributions.”SCR 60.06(4). Similar canons prohibiting judicialcandidates from making personal solicitations havebeen struck down by the Sixth, Eighth and EleventhCircuits. Wersal, 2010 WL 295171; White II, 416 F.3dat 766; Weaver v. Bonner, 309 F.3d 1312, 1322 (11thCir. 2002); Carey, 2010 WL 2771866. But see Strettonv. Disciplinary Board of the Supreme Court of Penn.,

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944 F.2d 137, 146 (3d Cir. 1991) (upholdingPennsylvania’s personal solicitation clause beforeWhite I).

The Eleventh Circuit in Weaver held Georgia’ssolicitation clause unconstitutional. Georgia’s Code ofJudicial Conduct provided that judicial candidates“shall not themselves solicit campaign funds, or solicitpublicly stated support.” Id. Canon 7(B)(2). The Weavercourt reasoned that, under strict scrutiny, anyimpartiality interest of the state was not served by theclause because

even if there is a risk that judges will betempted to rule a particular way because ofcontributions or endorsements, this risk is notsignificantly reduced by allowing thecandidate’s agent to seek these contributionsand endorsements on the candidate’s behalfrather than the candidate seeking themhimself. Successful candidates will feelbeholden to the people who helped them getelected regardless of who did the soliciting ofsupport.

Id. at 1322-23. The clause prohibits a candidate’sspeech while “hardly advancing the state’s interest injudicial impartiality at all.” Id. at 1323.

In White II, the Eighth Circuit struck down Minn-esota’s personal solicitation clause because it was notnarrowly tailored to serve a compelling interest inimpartiality. Id. at 765-66. Minnesota’s judicial codeonly permitted a candidate’s committee to receivecontributions, with the committee itself prohibitedfrom informing the candidate who had solicited and

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who had not. Id. at 765; 52 Minn. Stat. Ann., Code ofJudicial Conduct, Canon 5(B)(2). That bias for oragainst a party or judicial closedmindedness wouldpresumptively result if a contributor or non-contributorappear before him would be a “‘challenge to the credu-lous.’” Id. at 766 (quoting White I, 536 U.S. at 780).

In Wersal, the Eighth Circuit consideredMinnesota’s revised solicitation clause. The new clause,while banning personal solicitations, Minn. Stat. Ann.,Code of Judicial Conduct, Canons 4.1(A)(6) &4.1(A)(4)(a), allowed judicial candidates to ask forfunds from audiences greater than 20 people; to signletters soliciting contributions; and to solicit fromfamily members, significant others, and judges overwhich the candidate has no supervisory or appellateauthority. 52 Minn. Stat. Ann., Code of JudicialConduct, Canon 4.2(B)(3). The court, recognizing thatthe canon was at least more narrowly tailored than thepersonal solicitation clause struck down in White II,Wersal, WL 2945171 at *14, still found the clausefailed strict scrutiny because, as in Weaver, acandidate’s campaign committee could solicit on herbehalf—and it is the act of soliciting, not the identityof the solicitor, that is relevant to the State’s interestin preserving impartiality. Id at *14. Moreover, lessrestrictive means already existed to preserve thatinterest: Minnesota prohibits judicial candidates fromknowing the source of contributions to their campaign,52 Minn. Stat. Ann., Code of Judicial Conduct, Canon4.2(A)(5), and recusal, in cases of clear bias, wasalways available to litigants. Wersal, WL 2945171 at*14. The court dismissed any coercive aspect to face-to-face solicitation, asserting that “it [is] highly unlikely

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that after such a fleeting encounter, a candidate willremember which solicited person indicated a likelihoodof contributing to the campaign or indicated a refusalto do so.” Id. at *14.

Following the Eighth and Eleventh Circuits, theSixth Circuit in Carey found Kentucky’s personalsolicitation clause unconstitutional because it reachednot only in-person solicitations by judges andsolicitation of parties currently before the court, butalso signing letters and solicitation for large groups.Carey, WL 2771866 at *13. That it allowed a candidateto send thank-you notes also was problematic to thecourt. Id. All these omissions, said the Sixth Circuit,“suggest[] that the only interest at play is the impoliticinterpersonal dynamics of a candidate’s request formoney, not the more corrosive reality of who gives andhow much.” Id.

The only circuit that has upheld the personalsolicitation clause is the Third Circuit in Stretton, 944F.2d 137. Decided prior to White I, the Third Circuitfound that the personal solicitation clause served acompelling interest in preventing “the appearance ofcoercion or expectation of impermissible favoritism.”Id. at 146. Significantly, the White I court recognizedimpartiality, not coercion, as a compelling interest.White I, 536 U.S. at 774. And more crucially, theStretton court analyzed the clause only as to face-to-face solicitations without properly analyzing the largerscope—and thereby the narrow tailoring—of theclause. Stretton, 944 F.2d at 145-46; see Carey, WL2771866 at *13 (discussing the overinclusiveness of thepersonal solicitation clause). Its value is dubious.

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Despite the post-White I consensus among thecircuits, the Seventh Circuit again chose to deviate, by finding the personal solicitation clause constitutional.4

See App. 109a (Rovner, J., dissenting) (“both the Sixthand Eighth circuits have struck down asunconstitutional states statutes that restricted theFirst Amendment rights of judge and judicialcandidates. ... Our divergent opinion on this issue is anoutlier.”).

Relying on Buckley, the court below concluded thatbecause personal solicitations related to raising fundsrather than spending funds for campaigns, “closelydrawn” scrutiny applied. Yet regardless of the level ofscrutiny, it contended that the solicitation clausesurvives. App. at 28a. Disavowing coercion as acompelling state interest, App. at 30a, the SeventhCircuit nevertheless held that “the personal solicitationitself presents the greatest danger to impartiality andits appearance.” App. at 31a. That candidates canreview the source of their funds and that the clausereaches beyond quid pro quo corruption to ban personalsolicitation of family members was not enough for thecourt to find the clause inadequately tailored. 5

The Seventh Circuit cites Stretton for support of its4

lesser standard of review. App. at 27a. This is misplaced.See Stretton, 944 F.2d at 146 (“A compelling state interestis present and the means currently employed are narrowlytailored to it. ... Accordingly, we agree with the districtcourt’s determination that Canon 7(B)(2) [—the personalsolicitation clause—] does not offend the Constitution.”)

The court also entirely ignores Judge Siefert’s as-5

applied challenge, which seeks an exception to the ban in

18

This analysis is fundamentally at odds with theSixth, Eighth, and Eleventh Circuit, which recognizedthat it is the contribution, not the solicitation, thattriggers any compelling state interest and as a result,struck down the solicitation clause. See Wersal, WL2945171 at *14; Carey, WL 2771866 at *13; Weaver,309 F.3d at 1322-23; White II, 416 F.3d at 766.

It is also at odds with the Sixth Circuit because itfails to address Judge Siefert’s as-applied claims. Evenif a categorical ban of personal solicitations is constitu-tional, whether Judge Siefert’s personal phone calls,personal invitations to fundraisers, or signatures onfundraising letters amount to the type of solicitationthat the Seventh Circuit found so offending is unlikely. While the Carey court found that the inclusion of such indirect solicitations made the clause faciallyunderinclusive, Carey, WL 2771866 at *13, atminimum, an exception for Judge Siefert’s desiredsolicitations is warranted.

To reconcile these inter-circuit conflicts, this Courtshould grant this writ.

B. The Endorsement Clause Is Unconstitu-tional.

In 2008, Judge Siefert wanted to endorse then-Senator Obama for President. As a judicial candidatein Wisconsin’s upcoming 2011 election cycle, he wouldlikewise like to endorse candidates to announce hisposition on disputed political issues, both as to whetherSenator Obama should be elected President and as a

the form of personal phone calls, signing of fundraisingletters, and personally inviting potential donors to fundrais-ing events.

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means by which to state his own views as a candidate.(Siefert Decl., Doc. 34, ¶ 18.) However, the endorse-ment clause provides that no judge or judicial candi-date may “[p]ublicly endorse or speak on behalf of [apolitical party’s] candidates or platforms.” SCR60.06(2)(b)(4). An exception to this provision allowspartisan political office holders seeking election orappointment, as well as judge-elects to “continue toengage in partisan political activities required by hisor her present position.” SCR 60.06(2)(c). Because theendorsements Judge Siefert desires to make are notrequired by his position, they are prohibited.

The endorsement clause Judge Siefert challengesis similar to the clause challenged in Wersal. Theendorsement clause there prevented a judicial candi-date from “publicly endors[ing] or, except for the judgeor candidate’s opponent, publicly oppos[ing] anothercandidate for public office.” 52 Minn. Stat. Ann., Codeof Judicial Conduct, Canon 4.1(A)(3). Mr. Wersalwanted to endorse a candidate for Minnesota’s Su-preme Court, a District Court judge, and a candidatefor Congress. Wersal, 2010 WL 2945171 at *1. Apply-ing White I’s strict scrutiny analysis because the“restriction depends wholly upon the subject matter ofthe speech for its invocation” and “burdens core politi-cal speech,” id. at *8, the Eighth Circuit found theclause overinclusive because, rather than solelypreventing public displays of favoritism that mightdemonstrate bias for or against a party, it also under-mines the endorser’s ability to “denote[] a particularsubset of issues and policies with which the endorsingcandidate may subscribe.” Id. at *9. It also found theclause underinclusive because it allows endorsements

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of public officials and of acts or policies of non-candi-dates. Id. at *10. The court ruled the clause faciallyunconstitutional.

In support of its conclusion, the Wersal courtfollowed White II, which held that judicial candidateshad the right to receive endorsements. Id. at 754. Andindeed, it is hard to see how, if accepting endorsementsis consistent with judicial impartiality, making en-dorsements would not be so. In the case of a judge orcandidate who receives an endorsement, there is a risk,however slight, that the judge or candidate will begrateful to the endorsing party, as the endorsementhas conferred a benefit on the candidate. The same is6

not true, however, when a judge or candidate makes anendorsement, and simply makes public a preferencethe candidate already has. Endorsements primarilybenefit the endorsee, not the endorser—the primarybenefit to the endorser is a short hand way to an-nounce her views. Since candidates are free, under7

White II, to accept such endorsements, they must befree to make such endorsements as well. Id.

Likewise, the Wersal court found compelling theWhite II court’s recognition that “‘the underlyingrationale for [a state provision banning the acceptance

In the same way, a judge who is appointed to the6

bench by a partisan political official such as a governor isalso likely to feel gratitude.

While a judge may make an endorsement in exchange7

for some political benefit from the endorsed party, this doesnot implicate judicial impartiality, as making an endorse-ment is not itself an exercise of the judicial office and does

not affect how a judge may rule in any case.

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of endorsements and membership in a politicalparty]—that associating with a particular group willdestroy a judge’s impartiality—differs only in formfrom that which purportedly supports the announceclause—that expressing one’s self on particular issueswill destroy a judge’s impartiality,” White II, 416 F.3dat 754-55.” Wersal, 2010 WL 2945171 at *9. A judge orcandidate associating with another candidate bymeans of an endorsement is no more of a threat tojudicial impartiality than is that judge or candidateassociating with a political party or political interestgroup, or expressing himself on particular issues.

Just like Mr. Wersal, Judge Siefert wished topublicly endorse candidates for public office, in hiscase, candidates like Barack Obama. The purpose ofhis endorsement was to announce his position on adisputed political issue, both as to whether SenatorObama should be elected President and as a means bywhich to state his own views as a candidate. (SiefertDecl., Doc. 34, ¶ 18.) Because his endorsement servedas a “shorthand for the views a judicial candidateholds,” White II, 416 F.3d at 754, Wersal, 2010 WL2945171 at *9, the endorsement clause prohibitsjudicial candidates from announcing their views inviolation of White I.

Again, the Seventh Circuit chose to embark on itsown analysis, concluding that the endorsement clauseis constitutional because judges who publicly endorseundermine the State’s interest in impartiality. App.25a-26a. Moreover, the court determined that anendorsement is of limited value, and thus warrantsless constitutional protection. App. 23a. That endorse-ments in nonpartisan elections are permitted under the

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clause was not underinclusive enough for “the scales totip in favor of the plaintiff’s right to speak.” App. at24a. But see App. at 44a (Rovner, J. dissenting) (“Once8

Wisconsin greased the slope for non-partisan endorse-ments, it should not have been surprised that partisanendorsements could come sliding after. Wisconsin hasfailed to demonstrate that its endorsement ban isnarrowly tailored to prevent the harm it asserts.”).

Even if a categorical ban on endorsements wereconstitutional, the Seventh Circuit also failed toconsider Judge Siefert’s as-applied claims. An endorse-ment of then-Senator Obama cannot credibly createsufficient impartiality concerns to warrant proscribingit. The likelihood of Senator Obama appearing inJudge Siefert’s court after successfully running forPresident are slim, and in the event he did so appear,any credible bias claim could be examined and addres-sed through recusal. See Wersal, 2010 WL 2945171 at *10-11 (contending that recusal is the least restrictivemeans of addressing the impartiality concerns purport-edly advanced through the endorsement clause).

The Siefert court’s conclusions directly conflict withthe Eighth Circuit, warranting this Court’s review.

Notably, the Seventh Circuit recognized that this8

underinclusiveness could make the endorsement clauseunconstitutional. See App. at 24a (“Were we to considerthis provision under strict scrutiny, this underinclusivenesscould be fatal to the rule’s constitutionality.”)

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ConclusionFor the foregoing reasons, this Court should

issue the requested writ of certiorari and decide thismatter on the merits.

Respectfully submitted,

James Bopp, Jr.,Counsel of Record

Anita Y. WoudenbergJosiah NeeleyBOPP, COLESON & BOSTROM

1 South 6th StreetTerre Haute, IN 47807-3510812/232-2434812/235-3685 (facsimile)Counsel for Petitioner