NO.

In theIn theIn theIn theIn the

Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States

THE HONORABLE DAVID J. KING, ET AL.,Petitioners,

v.

KANSAS JUDICIAL WATCH, ET AL., Respondents.

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

PETITION FOR A WRIT OF CERTIORARI

DEREK SCHMIDT ATTORNEY GENERAL OF KANSAS

JEFFREY A. CHANAY DEPUTY ATTORNEY GENERAL

STEPHEN R. MCALLISTER SOLICITOR GENERAL OF KANSAS

Counsel of RecordSTEPHEN O. PHILLIPS ASSISTANT ATTORNEY GENERAL

120 S.W. 10th St., 2nd FloorTopeka, KS 66612(785) 296-2215stevermac@fastmail.fm

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

December 28, 2011

GEORGE T. PATTON, JR.BOSE MCKINNEY & EVANS LLP700 North One Lafayette Centre1120 20th Street, N.W.Washington, DC 20036(202) 471-1944GPatton@boselaw.com

i

QUESTION PRESENTED

By virtue of 42 U.S.C. § 1988(b), a “prevailingparty” in a suit brought pursuant to 42 U.S.C. § 1983may be awarded a “reasonable attorney’s fee as part ofthe costs.” The question in this case involvesrespondents’ claim to be prevailing parties based solelyon a preliminary injunction.

In Buckhannon Bd. and Care Home, Inc. v. WestVirginia Dep’t of Health and Human Resources, 532U.S. 598 (2001), this Court held that when a plaintiffin a § 1983 action fails to obtain an enforceable finaljudgment or similar relief such as a consent decree, theplaintiff is not a “prevailing party” under § 1988(b),even if the plaintiff’s suit was in some sense the“catalyst” for a change in the law or policy that theplaintiff was challenging. Similarly, in Sole v. Wyner,551 U.S. 74 (2007), this Court held that when aplaintiff obtains a preliminary injunction butultimately loses on the merits, the plaintiff is not a“prevailing party” under § 1988.

In Sole v. Wyner, however, the Court “express[ed]no view on whether, in the absence of a final decisionon the merits of a claim for permanent injunctiverelief, success in gaining a preliminary injunction maysometimes warrant an award of counsel fees.” 551 U.S.at 86. That question has confounded the Circuits, andis the question presented here:

When a plaintiff obtains a preliminaryinjunction but the case is mooted prior toresolution of the plaintiff’s claims fordeclaratory and permanent injunctive relief, isthe plaintiff a “prevailing party” for purposes of42 U.S.C. § 1988(b)?

ii

PARTIES TO THE PROCEEDING*

Petitioners, the defendants below, are the membersof the Kansas Commission on Judicial Qualificationsin their official capacities:

The Hon. David J. King (Chair) William B. Swearer (Vice-Chair) Nancy AnstaettThe Hon. J. Patrick BrazilBruce Buchanan Mary Davidson CohenThe Hon. Robert J. FlemingThe Hon. Theodore B. IceThe Hon. Jennifer L. JonesJeffery A. MasonChristina PannbackerMikel L. StoutThe Hon. Thomas L. Toepfer;the Commission’s Examiner in his official capacity:Edward G. Collister, Jr.; andofficials in the office of the Kansas DisciplinaryAdministrator in their official capacities: Stanton A. HazlettAlexander M. WalczakKate F. BairdKimberly L. KnollGayle B. Larkin

The respondents are Kansas Judicial Watch, TheHon. Charles M. Hart, and Robb Rumsey.

* After the litigation began, Judge King became and currentlyserves as Chair of the Kansas Commission on JudicialQualifications, and Kansas Judicial Watch changed its name toKansas Judicial Review.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISION INVOLVED . . . . . . . . 2

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . 13

A. In Sole v. Wyner, 551 U.S. 74 (2007), theCourt Expressly Reserved Judgment on theImportant and Recurring Question this CasePresents . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The Question Presented Has Confounded theCircuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. The Tenth Circuit’s Decision Is Inconsistentwith Buckhannon Bd. and Care Home, Inc.v. West Virginia Dept. of Health and HumanResources, 532 U.S. 598 (2001) . . . . . . . . . 22

1. Several Circuits Effectively Are Applyingthe “Catalyst Theory” in PreliminaryInjunction Cases . . . . . . . . . . . . . . . . . . 23

iv

2. The Tenth Circuit’s Approach CreatesIncentives for More, Not Less, Litigation . . . . . . . . . . . . . . . . . . . . . . . . 25

3. “Finality” Is the Key to DeterminingPrevailing Party Status . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

APPENDIX

Appendix A: Opinion, United States Court ofAppeals, Tenth Circuit(August 9, 2011) . . . . . . . . . . . . . 1a

Appendix B: Memorandum and Order, In theUnited States District Court forthe District of Kansas(November 19, 2009) . . . . . . . . 23a

Appendix C: Memorandum and Order, In theUnited States District Court forthe District of Kansas(July 19, 2006) . . . . . . . . . . . . . 34a

Appendix D: Order, United States Court ofAppeals for the Tenth Circuit(September 30, 2011) . . . . . . . . 95a

Appendix E: Certification of Questions of StateLaw, United States Court ofAppeals, Tenth Circuit, Case No.06-3290(March 12, 2008) . . . . . . . . . . . 97a

v

Appendix F: Certified Questions, in theSupreme Court of the State ofKansas, Case No. 100,170(December 8, 2008) . . . . . . . . 126a

Appendix G: Decision dismissing as moot,United States Court of Appeals,Tenth Circuit, Case No. 06-3290(April 17, 2009) . . . . . . . . . . . 167a

vi

TABLE OF AUTHORITIES

CASES

Advantage Media, L.L.C. v. City of Hopkins, 511 F.3d 833 (8th Cir. 2008) . . . . . . . . . . . 21, 24

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975) . . . . . . . . . . . . . . . . . . 13, 31

Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010), cert. denied, 131 S.Ct. 2872 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Biodiversity Conservation Alliance v. Stem, 519 F.3d 1226 (10th Cir. 2008) . . . . . . . . . 10, 11

Black Heritage Soc’y v. City of Houston, No. 07-0052, 2008 WL 2769790 (S.D. Tex. July11, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Buckhannon Bd. and Care Home, Inc. v. WestVirginia Dep’t of Health and Human Res.,532 U.S. 598 (2001) . . . . . . . . . . . . . . . . . . passim

Burlington v. Dague, 505 U.S. 557 (1992) . . . . . . . . . . . . . . . . . . . . . 31

Carey v. Wolnitzik, 614 F.3d 189 (6th Cir. 2010) . . . . . . . . . . . . . . . 3

Coates v. Powell, 639 F.3d 471 (8th Cir. 2011) . . . . . . . . . . . . . . 25

Common Cause/Georgia v. Billups, 554 F.3d 1340 (11th Cir. 2009) . . . . . . . . . . . . 18

vii

Dahlem v. Bd. of Educ., 901 F.2d 1508 (10th Cir. 1990) . . . . 10, 11, 12, 18

Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008) . . . . . . . . . . . passim

Diffenderfer v. Gomez-Colon, 587 F.3d 445 (1st Cir. 2009) . . . . . . . . . . . . . . 18

Dool v. Burke, No. 10-1286, 2010 WL 3724660 (D. Kan. Sept.14, 2010), 2010 WL 4568993 (D. Kan. Nov. 3,2010), appeal pending, No. 10-3320 (arguedSept. 12, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Dupuy v. Samuels, 423 F.3d 714 (7th Cir. 2005) . . . . . . . . . . . . . . 21

Farrar v. Hobby, 506 U.S. 103 (1992) . . . . . . . . . . . . . . . . . . . . . 30

Frommert v. Conkright, No. 00-6311, 2011 WL 5599524 (W.D.N.Y. Nov.17, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Gonzalez-Servin v. Ford Motor Co., Nos. 11-1665, 08-2792, 2011 WL 5924441 (7thCir. Nov. 23, 2011) . . . . . . . . . . . . . . . . . . . . . . 23

Hanrahan v. Hampton, 446 U.S. 754 (1980) (per curiam) . . . . . . . . . . 30

Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . 22, 31

viii

Hewitt v. Helms, 482 U.S. 755 (1987) . . . . . . . . . . . . . . . . . . . . . 30

Higher Taste v. City of Tacoma, No. 10-5252, 2011 WL 5864665 (W.D. Wash.Nov. 22, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 21

In re Dunleavy, 838 A.2d 338 (Me. 2003) . . . . . . . . . . . . . . . . . . 3

In re Kinsey, 842 So.2d 77 (Fla. 2003) . . . . . . . . . . . . . . . . . . 3

In re Watson, 794 N.E.2d 1 (N.Y. 2003) . . . . . . . . . . . . . . . . . . 3

Jones v. Mich. Dep’t of Corrections, No. 05-72817, 2011 WL 3268087 (E.D. Mich.July 29, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) . . . . . . . . . . . . . . . . . . . . . 16

Maher v. Gagne, 448 U.S. 122 (1980) . . . . . . . . . . . . . . . . . . . . . 30

McQueary v. Conway, 614 F.3d 591 (6th Cir. 2010), cert. denied, 131 S.Ct. 927 (2011) . . . . . . . . . . . . . . . . . . . . . . . passim

N. Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987) . . . . . . . . . . . . . . 6

O’Neill v. Coughlan, No. 1:04-1612, 2011 WL 1298098 (N.D. OhioMar. 31, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 19

ix

People Against Police Violence v. City of Pittsburgh,520 F.3d 226 (3d Cir. 2008) . . . . . . . . . . . . . . . 20

Planned Parenthood of Houston & Se. Texas v.Sanchez, 480 F.3d 734 (5th Cir. 2007) . . . . . . . . . . . . . . 17

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

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) . . . . . . . . . . . . . . . . . . . . . . 2

Rice Servs., Ltd. v. United States, 405 F.3d 1017 (Fed. Cir. 2005) . . . . . . . . . . . . 25

Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005) . . . . . . . 17, 18, 25

Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010), cert. denied, 131 S.Ct. 2872 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 3

Simes v. Arkansas Judicial Discipline andDisability Com’n, 247 S.W.3d 876 (Ark. 2007) . . . . . . . . . . . . . . . . 3

Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223 (3d Cir. 2011) (en banc), cert.denied sub nom. Live Gold Operations, Inc. v.Dow, No. 11-211 (Oct. 31, 2011) . . . . . . . . 20, 21

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002) . . . . . . . . 17, 19, 24

x

Sole v. Wyner, 551 U.S. 74 (2007) . . . . . . . . . . . . . . . . . . . passim

Texas State Teachers Ass’n v. Garland Indep. Sch.Dist., 489 U.S. 782 (1989) . . . . . . . . . . . . . . . . . . 10, 12

Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) . . . . . . . . . . . . . . . . 6, 23, 28

Watson v. Cnty. of Riverside, 300 F.3d 1092 (9th Cir. 2002) . . . . . . . . . . 17, 18

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

Wolfson v. Brammer, No. 08-8064, 2011 WL 4501935 (D. Ariz. Sept.29, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . i, 13, 25

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . 9, 14, 19, 33

42 U.S.C. § 1988(b) . . . . . . . . . . . . . . . . . . . . . passim

xi

OTHER AUTHORITIES

Jill Moenius, Buying Promises: How CitizenUnited’s Campaign Expenditures Convert Our“Impartial” Judges and Their NonpromissoryCampaign Statements into an Indebted,Influenced, and Dependent Judiciary, 59 Kan. L. Rev. 1101 (2011) . . . . . . . . . . . . . . . 3

Hiram Sasser, Paying for Justice: The Recovery ofAttorneys Fees under Section 1988, 47 Advocate(Texas) 32 (2009) . . . . . . . . . . . . . . . . . . . . . . . 25

Martin Schwartz, Section 1983 Civil RightsLitigation from the October 2006 Term, 23 TouroL. Rev. 827 (2008) . . . . . . . . . . . . . . . . . . . . . . 15

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully request that the Courtgrant this petition for a writ of certiorari to review thejudgment of the United States Court of Appeals for theTenth Circuit.

OPINIONS BELOW

The Tenth Circuit’s opinion holding thatrespondents are prevailing parties entitled toattorney’s fees is reprinted in the Appendix (“Pet.App.”) at 1a-22a, and is reported at 653 F.3d 1230. TheTenth Circuit’s order denying petitioners’ timelypetition for rehearing and rehearing en banc isreprinted at Pet. App. 95a-96a. The District Court’smemorandum and order denying respondents’ requestfor attorney’s fees is reprinted at Pet. App. 23a-33a.

Also included in the Appendix are the DistrictCourt’s decision granting a preliminary injunction,Pet. App. 34a-94a (reported at 440 F.Supp.2d 1209),the Tenth Circuit’s opinion modifying the injunctionand certifying questions of state law to the KansasSupreme Court, Pet. App. 97a-125a (reported at 519F.3d 1107), the Kansas Supreme Court’s opinionanswering the certified questions, Pet. App. 126a-166a(reported at 196 P.3d 1162), and the Tenth Circuit’sdecision vacating the injunction and dismissing thesuit. Pet. App. 167a-182a (reported at 562 F.3d 1240).

JURISDICTION

The Tenth Circuit issued its decision on August 9,2011, and denied petitioners’ timely petition forrehearing and rehearing en banc on September 30,

2

2011. This petition for a writ of certiorari was filedwithin 90 days of that denial, as Rule 13.1 requires.The Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1988(b) provides in relevant part asfollows:

In any action or proceeding to enforce aprovision of sections 1981, 1981a, 1982, 1983,1985, and 1986 of this title, title IX of PublicLaw 92-318, the Religious Land Use andInstitutionalized Persons Act of 2000, title VI ofthe Civil Rights Act of 1964, or section 13981 ofthis title, the court, in its discretion, may allowthe prevailing party, other than the UnitedStates, a reasonable attorney’s fee as part of thecosts….

STATEMENT

The Court held in Republican Party of Minnesota v.White, 536 U.S. 765 (2002) that elected judges andcandidates for elected judicial offices have a FirstAmendment right to state their legal views to theelectorate during campaigns. One result of thatholding has been significant litigation regarding statejudicial canons that regulate judges’ and candidates’activities. Such canons include prohibitions on judgesand candidates pledging to take certain actions as ajudge (Pledge Clauses) or committing to particularoutcomes on issues or cases likely to come before acourt (Commits Clauses), as well as prohibitions on“soliciting” support for a campaign in various ways(Solicitation Clauses).

3

This litigation has resulted in different outcomes onthe merits. See, e.g., Bauer v. Shepard, 620 F.3d 704(7th Cir. 2010), cert. denied, 131 S. Ct. 2872 (2011)(rejecting constitutional challenges to Indiana judicialcanons); Siefert v. Alexander, 608 F.3d 974 (7th Cir.2010) (generally upholding Wisconsin canons), cert.denied, 131 S. Ct. 2872 (2011); Simes v. ArkansasJudicial Discipline and Disability Com’n, 247 S.W.3d876 (Ark. 2007) (upholding Arkansas canons); Wolfsonv. Brammer, No. 08-8064, 2011 WL 4501935 (D. Ariz.Sept. 29, 2011) (upholding Arizona canons); In reKinsey, 842 So.2d 77 (Fla. 2003) (upholding Floridacanons); In re Dunleavy, 838 A.2d 338 (Me. 2003)(upholding Maine canons); In re Watson, 794 N.E.2d 1(N.Y. 2003) (upholding New York canons); RepublicanParty of Minnesota v. White, 416 F.3d 738 (8th Cir.2005) (en banc) (striking down some Minnesotacanons); Weaver v. Bonner, 309 F.3d 1312 (11th Cir.2002) (same, Georgia canons); Carey v. Wolnitzik, 614F.3d 189 (6th Cir. 2010) (same, Kentucky canons; alsosurveying state canons in an appendix to the opinion);see generally Jill Moenius, Buying Promises: HowCitizen United’s Campaign Expenditures Convert Our“Impartial” Judges and Their NonpromissoryCampaign Statements into an Indebted, Influenced,and Dependent Judiciary, 59 Kan. L. Rev. 1101, 1108-17 (2011) (discussing White and the state judicialcanons it implicates). It is fair to say that the law inthis area is not completely settled, though more caseshave upheld these challenged judicial canons thanhave struck them down.

In this case, the plaintiffs challenged what theTenth Circuit referred to as the Pledges Clause, theCommits Clause, and the Solicitation Clause in theKansas Code of Judicial Conduct (the Code) as those

4

provisions existed in 2006. The defendants in this caseare the members of the Kansas Judicial QualificationsCommission—the entity charged with enforcing theCode, the Commission’s Examiner (an attorney), andseveral members of the Kansas DisciplinaryAdministrator’s Office, all sued in their officialcapacity as the persons who would investigate,prosecute and adjudicate any violations of the Code,subject to review by the Kansas Supreme Court.

This petition, however, is not directly about themerits of plaintiffs’ challenges but, rather, theimportant question whether a plaintiff who obtains apreliminary injunction restraining the enforcement ofsome judicial canons but whose claims ultimately aredismissed as moot is a “prevailing party” entitled to anaward of attorney’s fees under 42 U.S.C. § 1988(b).

1. The Kansas Judicial Canons and Respondents’Lawsuit. In Kansas, all appellate judges are selectedthrough a merit system commonly referred to as theMissouri Plan. Dool v. Burke, No. 10-1286, 2010 WL3724660 (D. Kan. Sept. 14, 2010), 2010 WL 4568993(D. Kan. Nov. 3, 2010), appeal pending, No. 10-3320(argued Sept. 12, 2011). A number of state trial judges,however, are elected, and all appointed judges standfor periodic retention elections. Until March 1, 2009,the Code provided that judicial candidates “should notmake pledges or promises of conduct in office otherthan the faithful and impartial performance of theduties of the office” (the Pledges Clause). Pet. App. 4a.Another provision declared that candidates shall not“make statements that commit or appear to committhe candidate with respect to cases, controversies orissues that are likely to come before the court” (theCommits Clause). Id. A third provision stated that “a

5

candidate shall not personally … solicit publicly statedsupport” (the Solicitation Clause). Id. at 5a.

In 2006, three plaintiffs—a political actioncommittee (Kansas Judicial Review “KJR”), a sittingjudge, and a judicial candidate brought this suit,challenging the constitutionality of the provisions justquoted. KJR alleged that it wished to collect andpublish responses by judges and candidates. KJRfurther alleged that sitting judges and candidatesrefused to answer KJR’s questionnaire on the groundthat in doing so they might be violating one or more ofthe provisions quoted above. The judicial candidateplaintiff alleged that he would have responded to theKJR questionnaire but for the Code provisions. Thesitting judge plaintiff alleged that he desired to godoor-to-door to seek signatures on a nominatingpetition but feared discipline under the Code. Pet. App.5a. The plaintiffs sought preliminary and permanentinjunctive relief to prevent the defendants frominitiating any disciplinary proceedings under the Codeagainst judges or candidates who might answer thequestionnaire or solicit support for their campaigns, aswell as declaratory relief holding that the challengedprovisions were unconstitutional. Pet. App. 44a-45a.

2. The District Court Grants a PreliminaryInjunction. The District Court held an evidentiaryhearing and heard oral argument on plaintiffs’ requestfor a preliminary injunction. Pet. App. 34a-35a.Applying the traditional four factors for preliminaryinjunctive relief, Pet. App. 53a-54a, the District Courtconcluded that the plaintiffs had met their burden“concerning the pledges and promises, commits, andsolicitation clauses under Republican Party ofMinnesota v. White.” Pet. App. 91a.

6

At the same time, however, the District Courtdenied plaintiffs’ request to consolidate thepreliminary injunction hearing with a trial on themerits. The court pointed out that “there are suchdifferent procedures that accompany preliminary andpermanent injunctions” that the Tenth Circuit hasmade clear that such proceedings generally should notbe consolidated unless the parties receive “clear andunambiguous notice” of such consolidation far enoughin advance to afford the parties “‘a full opportunity topresent their respective cases.’” Pet. App. 90a (citingand quoting Univ. of Texas v. Camenisch, 451 U.S.390, 395 (1981), and N. Arapahoe Tribe v. Hodel, 808F.2d 741, 753 (10th Cir. 1987)). Furthermore, the courtemphasized that “the injunction standard ofprobability of success on the merits is not the same asactual success on the merits.” Pet. App. 91a.

3. The Tenth Circuit Modifies the PreliminaryInjunction and Certifies Questions of State Law.Defendants appealed the preliminary injunction to theTenth Circuit, but that court did not resolve the meritsof plaintiffs’ claims. Instead, the Tenth Circuit initiallydetermined that (1) the plaintiffs had standing tobring the case, Pet. App. 108a-110a, and (2) the claimswere ripe for judicial review. Id. at 110a-116a.

The court next concluded “that plaintiffs’ claimsrest on sufficiently novel and determinative questionsof state law that certification is warranted. In order toadjudicate the plaintiffs’ constitutional claims, wemust determine the scope and meaning of the threestate canons at issue.” Pet. App. 120a. The courtemphasized that a “state court ruling on the meaningof the Canons is also likely to moot or substantiallymodify the constitutional issues at stake.” Id. at 121a.

7

Thus, the Tenth Circuit certified five questions aboutthe meaning of the challenged Code provisions to theKansas Supreme Court. Pet. App. 123a-124a.

Importantly, the Tenth Circuit went on to modifythe preliminary injunction because “[b]oth partiesconcede that the district court’s order went beyond thescope of the challenge to [the Solicitation Clause].” Pet.App. 124a. Thus, the court limited “application of thepreliminary injunction to the personal solicitation ofpublicly stated support.” Id. The Tenth Circuitconcluded by emphasizing that it would “reservejudgment on the preliminary injunction againstenforcement” of the challenged Code provisions. Id. at125a.

4. The Tenth Circuit Vacates the Injunction andDismisses the Appeal. The Kansas Supreme Courtanswered the certified questions approximately ninemonths later, Pet. App. 126a-166a, at which time theTenth Circuit took up defendants’ appeal of thepreliminary injunction. The court began by pointingout that shortly after answering the certifiedquestions, the Kansas Supreme Court “adopted a newCode of Judicial Conduct, which significantly revisedversions of the Pledges and Commits Clauses andeliminates the Solicitation Clause…. The new canonswent into effect and superseded the old canons onMarch 1, 2009.” Id. at 171a.

The Tenth Circuit observed that the new canons“substantially alter[] the landscape. First, the newcanons completely eliminate the challenged portion ofthe Solicitation Clause. Second, they materiallynarrow the language and scope of the Pledges andCommits Clauses.” Pet. App. 174a. The court readily

8

concluded that the plaintiffs’ challenge to theSolicitation Clause was moot: “there can be no doubtthat the plaintiffs’ challenge to the Solicitation Clauseis moot.” Id. at 176a. Furthermore, although “the newcanons do not entirely eliminate the Pledges andCommits Clauses, we ultimately conclude thatplaintiffs’ challenges to these clauses are moot aswell.” Id.

The court observed that “[w]hen a case becomesmoot on appeal, the ordinary course is to vacate thejudgment below and remand with directions todismiss.” Pet. App. 181a. The plaintiffs, however,argued that “only the appeal should be dismissed, notthe underlying challenge to the old canons.” Id. TheTenth Circuit flatly rejected the plaintiffs’ argument,concluding that “we perceive no reason to deviate fromour general practice of vacatur in this case.” Id.

5. The District Court Denies Respondents’ Requestfor Attorney’s Fees. The plaintiffs then moved in theDistrict Court for an award of attorney’s fees under 42U.S.C. § 1988(b). Plaintiffs argued “that they areprevailing parties because the Tenth Circuit’s ordervacating the preliminary injunction does not triggerapplication of Sole [v. Wyner, 551 U.S. 74 (2007)] sinceplaintiffs received some relief on the merits of theirclaim, as they were allowed to publish the results ofthe KJR Questionnaire prior to the general electionwithout fear of enforcement action and there was nosubsequent decision on the merits of the preliminaryinjunction.” Pet. App. 30a (emphasis original).

The District Court rejected the request, pointingout that at the time of the preliminary injunctionhearing the plaintiffs had asked to “preserve the

9

status quo” and had made clear that the injunctionwould not provide all of the relief plaintiffs soughtbecause they also wanted “declaratory relief” on themerits. Pet. App. 31a-32a. Indeed, the “primary reliefsought by plaintiffs was declaratory relief.” Id. at 32a.Importantly, “[p]laintiffs did not merely seek aninjunction that allows them to answer and distributethe questionnaire and solicit publicly-stated support inthe 2006 primary election.” Id. Instead, they “soughtdeclarations that the judicial canons at issue wereunconstitutional both on their face and as applied tothe questionnaire and petitions, in 2006 and beyond.”Id. Thus, “[n]either the fact that the canons wereamended, nor the fact that plaintiffs obtained apreliminary injunction suffice to qualify them asprevailing parties….” Id. at 33a. The plaintiffsappealed this ruling.

6. The Tenth Circuit Holds That Plaintiffs ArePrevailing Parties. The Tenth Circuit stated that“[t]his case requires us to decide whether Appellantsqualify as ‘prevailing parties’ entitled to attorney’s feesunder 42 U.S.C. § 1988 where they secured apreliminary injunction that afforded some of the reliefsought in the complaint, the district court granted theinjunction after finding that Appellants weresubstantially likely to succeed on the merits of theirclaims, and the actions of third parties mooted the casebefore this Court had the opportunity to determine thevalidity of the preliminary injunction on appeal.” Pet.App. 3a-4a. The Tenth Circuit answered that questionby holding “that the preliminary injunction conferredprevailing-party status on Appellants.” Id. at 4a.

After reciting the facts and procedural history ofthe case, Pet. App. 4a-9a, the Tenth Circuit quoted

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Texas State Teachers Ass’n v. Garland Indep. Sch.Dist., 489 U.S. 782 (1989), for the proposition thatprevailing party status requires “the materialalteration of the legal relationship of the parties in amanner which Congress sought to promote in the feestatute.” Pet. App. 9a-10a. The Tenth Circuit observedthat “[t]his Court has twice addressed whether aplaintiff who secured a preliminary injunction couldsatisfy the standard set forth in TSA.” Id. at 10a.

One case was Dahlem v. Board of Educ., 901 F.2d1508 (10th Cir. 1990)—decided 11 years beforeBuckhannon rejected the “catalyst theory”—in whicha male high school senior obtained a preliminaryinjunction allowing him to participate on the girls’gymnastics team at his school because there was noboys’ team. The gymnastics season finished before thecase was resolved on the merits and the plaintiffsought an award of attorney’s fees, which the DistrictCourt denied. The Tenth Circuit reversed, concludingthat the preliminary injunction was granted on thebasis of the district court’s assessment of the plaintiff’slikelihood of success on the merits, making theplaintiff a prevailing party for attorney’s fee purposes.Pet. App. 10a-12a.

The second case was Biodiversity ConservationAlliance v. Stem, 519 F.3d 1226 (10th Cir. 2008), inwhich Justice O’Connor, sitting by designation, wrotefor the Circuit in rejecting a request for attorney’s feesbased on a preliminary injunction. In Stem, theplaintiff obtained a preliminary injunction against aproposed timber sale by the U.S. Forest Service but,after a forest fire in the disputed region, the ForestService withdrew the proposal, mooting the case. Theplaintiff requested attorney’s fees, but the Tenth

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Circuit concluded that the plaintiff was not aprevailing party because the preliminary injunctionhad depended largely on the threat of irreparableharm, and it had only maintained the status quopending litigation of the merits. The Stem court also“questioned whether Dahlem remains good law afterthe Supreme Court’s decisions in Buckhannon Boardand Care Home, Inc. v. West Virginia Department ofHealth and Human Resources, 532 U.S. 598 (2001),and Sole v. Wyner, 551 U.S. 74 (2007).” Pet. App. 13a.

In this case, the Tenth Circuit opined that “[h]avingcarefully analyzed Buckhannon and Sole, we now holdthat Dahlem survives those decisions.” Pet. App. 14a.The Tenth Circuit read Buckhannon’s rejection of the“catalyst theory” “for the proposition that there mustbe a judicially sanctioned alteration in the legalrelationship between the parties….” Pet. App. 14a(emphasis original). The court went on to declare thatbecause “[a] preliminary injunction is a form of court-ordered relief,” id. at 15a, “Buckhannon does notundermine” our decision in Dahlem. Pet. App. 15a.However, “[w]e do not mean to suggest, of course, thatevery preliminary injunction will necessarily renderthe recipient a ‘prevailing party.’” Id. Instead, “[w]ehold only that Buckhannon’s ‘judicial imprimatur’requirement does not make preliminary injunctionscategorically insufficient to create prevailing-partystatus.” Id.

Noting that in Sole v. Wyner the Supreme Court“explicitly declined to consider the issue” in questionhere, Pet. App. 16a, the Tenth Circuit derived from itscases “two overarching principles: First, and mostfundamental, in order for a preliminary injunction toserve as the basis for prevailing-party status, the

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injunction must provide at least some relief on themerits of the plaintiff’s claim(s).” Id. at 17a. “Second,if a preliminary injunction satisfies the relief-on-the-merits requirement, the plaintiff qualifies as a‘prevailing party’ even if events outside the control ofthe plaintiff moot the case.” Id.

The court continued: “In light of the principles setforth above, we have no trouble concluding that[plaintiffs] are ‘prevailing parties’ in this case.” Pet.App. 18a. “First, the district court’s preliminaryinjunction provided relief on the merits of Appellants’claims.” Id. “Furthermore, the district court was clearabout Appellants’ ultimate likelihood of success on themerits.” Id. “Second, this Court dissolved thepreliminary injunction only after the Kansas SupremeCourt amended the challenged canons and renderedAppellants’ claims against the Commission moot.” Id.at 19a. The Tenth Circuit opined that the DistrictCourt’s rationale that plaintiffs did not prevail becausethey primarily sought declaratory relief “conflicts withthe Supreme Court’s directives” in the Texas StateTeachers Association case. Id.

Finally, the Tenth Circuit rejected the argumentthat plaintiffs were not prevailing parties because thepreliminary injunction ultimately was vacated,“leaving Appellants without an enforceable judgment.”Pet. App. 21a. According to the court, “[t]his argumentignores our holding in Dahlem.” Id. Key to the TenthCircuit was its observation that “[n]either this Courtnor the district court ever issued an orderundermining the district court’s assessment of themerits of Appellants’ claims or Appellants’ legalentitlement to relief.” Id.

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REASONS FOR GRANTING THE WRIT

The “American Rule” requires that parties inlitigation generally “bear their own attorney’sfees—the prevailing party is not entitled to collectfrom the loser.” Buckhannon Bd. and Care Home, Inc.v. West Virginia Dep’t of Health and Human Res., 532U.S. 598, 602 (2001); see generally Alyeska PipelineServ. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975).“Congress, however, has authorized the award ofattorney’s fees to the ‘prevailing party’ in” statutessuch as “the Civil Rights Attorney’s Fees Awards Actof 1976.” Buckhannon, 532 U.S. at 602-03. Thus, byvirtue of 42 U.S.C. § 1988(b), a “prevailing party” in asuit brought pursuant to 42 U.S.C. § 1983, as this casewas, may be awarded a “reasonable attorney’s fee aspart of the costs.”

In Buckhannon, this Court held that when aplaintiff in a § 1983 action fails to obtain anenforceable final judgment or a consent decree, theplaintiff is not a “prevailing party” under § 1988(b),even if the plaintiff’s suit was in some sense the“catalyst” for a change in the law or policy that theplaintiff was challenging. As explained in Part B.below, the Circuits have struggled with whether—andif so how—Buckhannon applies when a plaintiffobtains only preliminary injunctive relief.

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A. In Sole v. Wyner, 551 U.S. 74 (2007), TheCourt Expressly Reserved Judgment OnThe Important And Recurring QuestionThis Case Presents.

In Sole v. Wyner, 551 U.S. 74 (2007), the plaintiffobtained a preliminary injunction in order to conducta nude performance on a public beach as a form ofprotest. At the protest, however, plaintiff and hercohorts failed to comply with the District Court’srestriction that they use a curtain to shield unwillingviewers from the performance. As a result, the DistrictCourt later granted the state defendants’ motion forsummary judgment, and thus the plaintiff ultimatelylost on the merits of her constitutional claim. Plaintiffnonetheless requested an award of attorney’s feesunder § 1988, arguing that she was a prevailing partybecause she had obtained a preliminary injunctionagainst the defendants.

The Court unanimously held that when a plaintiffobtains a preliminary injunction but ultimately loseson the merits, the plaintiff is not a “prevailing party”under § 1988. “That fleeting success,” the Court held,“did not establish that she prevailed on the gravamenof her plea for injunctive relief.” 551 U.S. at 83.Rather, “[a]t the preliminary injunction stage, thecourt is called upon to assess the probability of theplaintiff’s ultimate success on the merits.” Id. at 84.Necessarily, “[t]he foundation for that assessment willbe more or less secure depending on the thoroughnessof the exploration undertaken by the parties and thecourt.” Id.

As is true in many situations involving requests forpreliminary injunctive relief, in Sole v. Wyner “the

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preliminary injunction hearing was necessarily hastyand abbreviated.” 551 U.S. at 84. Such an “emergencyproceeding allowed no time for discovery, nor foradequate review of documents or preparation andpresentation of witnesses.” Furthermore, the Courtemphasized that the “provisional relief immediatelygranted expired before appellate review could begained, and the court’s threshold ruling would have nopreclusive effect in the continuing litigation.” Id.Indeed, the Court pointed out that the plaintiff wasnot entitled to attorney’s fees immediately after sheobtained the preliminary injunction:

In short, the provisional relief grantedterminated only the parties’ openingengagement. Its tentative character, in view ofthe continuation of the litigation to definitivelyresolve the controversy, would have made a feerequest at the initial stage premature.

Id.

In Sole v. Wyner, however, the Court “express[ed]no view on whether, in the absence of a final decisionon the merits of a claim for permanent injunctiverelief, success in gaining a preliminary injunction maysometimes warrant an award of counsel fees.” 551 U.S.at 86. See also Martin Schwartz, Section 1983 CivilRights Litigation from the October 2006 Term, 23Touro L. Rev. 827, 841 (2008) (“The decision, however,leaves open the issue of whether a Section 1983plaintiff who obtains a preliminary injunction, butnever litigates the matter to a final determination onthe merits afterwards is a prevailing party. Forexample, is a plaintiff who obtains a preliminaryinjunction a prevailing party when the case

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subsequently settles or is rendered moot?”); cf. Lewisv. Cont’l Bank Corp., 494 U.S. 472, 483 (1990)(“Whether Continental can be deemed a ‘prevailingparty’ in the District Court, even though [thesummary] judgment [in its favor] was mooted afterbeing rendered but before the losing party couldchallenge its validity on appeal, is a question of somedifficulty”).

The question reserved in Sole v. Wyner is squarelyand cleanly presented in this case, and has arisen innumerous lower court cases. As explained below, thequestion of when, if ever, preliminary injunctive reliefconfers “prevailing party” status on a plaintiff hasconfounded the Circuits, which agree that the questionis unresolved by this Court’s decisions. Furthermore,decisions such as the Tenth Circuit’s decision here toaward attorney’s fees solely on the basis of preliminaryinjunctive relief are contrary to the Court’s rejection ofthe “catalyst theory” in Buckhannon.

B. The Question Presented Has ConfoundedThe Circuits.

The question expressly reserved in Sole v. Wynerhas vexed and confounded the Circuits, as they havereadily acknowledged:

Although an enforceable judgment on themerits and a court-ordered consent decree havesufficient judicial imprimatur [for prevailingparty status], these examples are not exclusive.As a result, lower courts have had difficulties inascertaining what other forms of judicial actionhave the “necessary judicial imprimatur” to

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create prevailing party status, particularly inthe context of preliminary injunctions.

Dearmore v. City of Garland, 519 F.3d 517, 521 (5thCir. 2008) (emphasis original and added, internalcitations omitted); see also Select Milk Producers, Inc.v. Johanns, 400 F.3d 939, 952 (D.C. Cir. 2005)(Henderson, J., dissenting) (“Whether a party can bea ‘prevailing party’ under a fee-shifting statute byobtaining preliminary injunctive relief is one that hasdivided the circuits—some say yes, some say no.”)

Importantly, “[w]ithout a Supreme Court decisionon point, circuit courts considering this issue haveannounced fact-specific standards that are anythingbut uniform.” Dearmore, 519 F.3d at 521; see id. at 522(discussing varying approaches utilized in the D.C.,Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninthand Eleventh Circuits); see also Black Heritage Soc’y v.City of Houston, No. 07-0052, 2008 WL 2769790, at *3(S.D. Tex. July 11, 2008) (“lower courts have differedover whether, in the absence of a final decision on themerits, a preliminary injunction may warrant a feeaward.”) Those approaches vary from the NinthCircuit’s “relatively generous approach” suggestingthat any preliminary injunction would suffice forprevailing party status, Dearmore, 519 F.3d at 522(citing Watson v. County of Riverside, 300 F.3d 1092,1096 (9th Cir. 2002)), to the Fourth Circuit’s “‘extremeskepticism that a preliminary injunction could everserve as the basis for prevailing party status,’ because‘the merits inquiry in the preliminary injunctioncontext is necessarily abbreviated.’” 519 F.3d at 522(quoting Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir.2002) and Planned Parenthood of Houston & Se. Texasv. Sanchez, 480 F.3d 734, 741 (5th Cir. 2007)).

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The Tenth Circuit’s approach falls between the twoextremes, but nonetheless lies closer to the Circuitsthat generally favor according prevailing party statusto a plaintiff who obtains a preliminary injunction. Themost “generous” approach to prevailing party status isrepresented by decisions of the D.C., First, Ninth, andEleventh Circuits, all of which effectively adopt a perse rule in favor of prevailing party status. See SelectMilk Producers, Inc. v. Johanns, 400 F.3d 939, 961(D.C. Cir. 2005) (Henderson, J., dissenting) (“I believeour circuit is endorsing a per se rule” in favor ofprevailing party status in the preliminary injunctioncontext); Diffenderfer v. Gomez-Colon, 587 F.3d 445,454 (1st Cir. 2009) (“When plaintiffs clearly succeed inobtaining the relief sought before the district court andan intervening event rendered the case moot onappeal, plaintiffs are still ‘prevailing parties’”) (citingthe Tenth Circuit’s decision in Dahlem v. Bd. of Ed.,901 F.3d 1508, 1512-13 (10th Cir. 1990)); Watson v.County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002) (“A preliminary injunction issued by a judgecarries all the ‘judicial imprimatur’ necessary to satisfyBuckhannon”); Common Cause/Georgia v. Billups, 554F.3d 1340, 1356 (11th Cir. 2009) (the EleventhCircuit’s “underlying [pre-Buckhannon] rule that apreliminary injunction is a ‘material alteration of thelegal relationship of the parties’ remains good law.”)

The Fourth and Sixth Circuits have adopted thenarrowest approach, with those courts questioningwhether a preliminary injunction should ever accordprevailing party status. For example, analyzingBuckhannon, the Fourth Circuit concluded that “[t]heinterplay of these equitable and legal considerationsand the less stringent assessment of the merits ofclaims that are part of the preliminary injunction

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context belie the assertion that the district court’sdecision to grant a preliminary injunction was an‘enforceable judgment[] on the merits’ or somethingakin to one for prevailing party purposes.” Smyth, 282F.3d at 277.

Similarly, writing for the Sixth Circuit, JudgeSutton concluded that “[i]n the aftermath ofBuckhannon and Sole, however, we can say that the‘preliminary’ nature of the relief—together with therequirement that a prevailing-party victory mustcreate a lasting change in the legal relationshipbetween the parties and not merely ‘catalyze’ thedefendant to voluntary action—will generally counselagainst fees in the context of preliminary injunctions.”McQueary v. Conway, 614 F.3d 591, 601 (6th Cir.2010), cert. denied, 131 S. Ct. 927 (2011); see also Jonesv. Mich. Dep’t of Corrections, No. 05-72817, 2011 WL3268087, at *1 (E.D. Mich. July 29, 2011) (“The SixthCircuit has held that when a claimant wins apreliminary injunction and nothing more, that usuallywill not suffice to obtain fees and costs.”); O’Neill v.Coughlan, No. 1:04-1612, 2011 WL 1298098 (N.D. OhioMar. 31, 2011) (judicial candidate who obtainedinjunction against application of judicial canons duringelections was not a prevailing party under § 1988when Sixth Circuit ultimately dissolved the injunctionon the ground that the district court should haveabstained from acting in the case).

The Third Circuit appears to have moved closer tothat view as well. The Third Circuit at one time opinedthat “nearly every Court of Appeals to have addressedthe issue has held that relief obtained via apreliminary injunction can, under appropriatecircumstances, render a party ‘prevailing,’” while at

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the same time conceding that the Fourth Circuit hasadopted a “dissenting” view. People Against PoliceViolence v. City of Pittsburgh, 520 F.3d 226, 232-33and n.4 (3d Cir. 2008). People Against Police Violence,however, was decided at the same time the FifthCircuit concluded in Dearmore that “lower courts havehad difficulties in ascertaining what other forms ofjudicial action have the ‘necessary judicial imprimatur’to create prevailing party status, particularly in thecontext of preliminary injunctions.” 519 F.3d at 521(emphasis original and added). Moreover, the ThirdCircuit’s discussion occurred prior to the SixthCircuit’s skeptical decision in McQueary v. Conway,discussed above.

Most importantly, the en banc Third Circuitrecently reconsidered this area of law and rejected aplaintiff’s claim of prevailing party status on the basisof obtaining a Temporary Restraining Order. In SingerManagement Consultants, Inc. v. Milgram, 650 F.3d223 (3d Cir. 2011) (en banc), cert. denied sub nom. LiveGold Operations, Inc. v. Dow, No. 11-211 (Oct. 31,2011), the en banc court expressed considerablereluctance to recognize that preliminary relief couldaccord “prevailing party” status. The court recognizedthat People Against Police Violence suggested thatinjunctive relief could potentially confer prevailingparty status, but emphasized that the “likelihood ofsuccess” inquiry in that setting is tentative and “doesnot mean more likely than not.” 650 F.3d at 229. Thus,the court described People Against Police Violence as“an example of that rare situation where a merits-based determination is made at the injunction stage.”650 F.3d at 229.

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Furthermore, the en banc majority acknowledgedthat even though the TRO allowed the plaintiff inMilgrim to conduct the concert series in disputewithout any threat of adverse action by the state, “theSupreme Court has told us [such relief] is not enough.”650 F.3d at 230 n. 5. The court emphasized “the seachange caused by Buckhannon in this area of the law,”and pointed out that “[t]here may be resolutions otherthan the two identified in Buckhannon [an enforceablefinal judgment and a court-ordered consent decree]that warrant prevailing party status (although theSupreme Court has yet to identify any).” 650 F.3d at231; see also Higher Taste v. City of Tacoma, No. 10-5252, 2011 WL 5864665, at *3 (W.D. Wash. Nov. 22,2011) (citing Milgram in holding that obtaining apreliminary injunction when the court contemplatesdiscovery and a later ruling on the merits does notmake a plaintiff a prevailing party).

The Tenth Circuit’s fact-specific approach is similarto the approach utilized by the Fifth, Seventh, andEighth Circuits. These courts have made clear thatobtaining a preliminary injunction does notautomatically confer prevailing party status, but “apreliminary injunction can in some instances carry thejudicial imprimatur required by Buckhannon to conveyprevailing party status.” Advantage Media, L.L.C. v.City of Hopkins, 511 F.3d 833, 837 (8th Cir. 2008); seealso Dearmore, 519 F.3d at 522, 524 (noting that “thisCourt has held that a plaintiff who obtains apreliminary injunction is not a prevailing party if hefails to qualify under any of the other circuits’ tests”,and then adopting a three-factor test to determinewhen such a plaintiff is a prevailing party); Dupuy v.Samuels, 423 F.3d 714, 723 (7th Cir. 2005) (“ourdecision today does not establish a hard and fast rule

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that a preliminary injunction can never be anadequate predicate for” an award of attorney’s fees).

At a minimum, whether Buckhannon controls theresolution of the question presented here and, if so,how Buckhannon applies in cases of preliminaryinjunctive relief is in dispute in the Circuits. Indeed,the numerous Circuit decisions discussed above andbelow demonstrate that the Circuits are veryuncertain about just how far Buckhannon’s rejection ofthe catalyst theory extends. This case is anappropriate vehicle for the Court to address andresolve that uncertainty.

C. The Tenth Circuit’s Decision IsInconsistent With Buckhannon Bd. andCare Home, Inc. v. West Virginia Dep’t ofHealth and Human Resources, 532 U.S. 598(2001).

The Tenth Circuit’s decision in this case suffersfrom at least two flaws on the merits. First, the TenthCircuit’s decision effectively opens the back door for“catalyst theory” attorney’s fee awards,notwithstanding that this Court barred the front doorin Buckhannon. Second, the Tenth Circuit’s approachnecessarily ensures that requests for attorney’s fees inpreliminary injunctive relief cases will result insubstantial litigation, a result contrary to this Court’srepeated warnings that “‘[a] request for attorney’s feesshould not result in a second major litigation….’”Buckhannon, 532 U.S. at 609 (quoting Hensley v.Eckerhart, 461 U.S. 424, 437 (1983)).

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1. Several Circuits Effectively AreApplying The “Catalyst Theory” InPreliminary Injunction Cases.

By their very nature, preliminary injunctions areprecisely what their title denotes: preliminary. As theCourt has emphasized:

The purpose of a preliminary injunction ismerely to preserve the relative positions of theparties until a trial on the merits can be held.Given this limited purpose, and given the hastethat is often necessary if those positions are tobe preserved, a preliminary injunction iscustomarily granted on the basis of proceduresthat are less formal and evidence that is lesscomplete than in a trial on the merits. A partythus is not required to prove his case in full ata preliminary-injunction hearing.

University of Texas v. Camenisch, 451 U.S. 390, 395(1981). Thus, necessarily “where a federal districtcourt has granted a preliminary injunction, the partiesgenerally will have had the benefit neither of a fullopportunity to present their cases nor of a final judicialdecision based on the actual merits of the controversy.”Id. at 396.

Nonetheless, the Tenth Circuit held that attorney’sfees in general may be awarded on the basis of such apreliminary determination, often made in “haste,”utilizing “informal” procedures and “incomplete”evidence, a determination that is by definition not a“final judicial decision.” The Tenth Circuit is not alonein adopting the ostrich-like position, cf. Gonzalez-Servin v. Ford Motor Co., Nos. 11-1665, 08-2792, 2011

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WL 5924441 (7th Cir. Nov. 23, 2011), thatBuckhannon’s rejection of the “catalyst theory” doesnot constrain the “prevailing party” determination inthis context. The Fifth Circuit has boldly (thoughincorrectly) declared that according prevailing partystatus on the basis of a preliminary injunction “doesnot implicate the ‘catalyst theory,’ which the SupremeCourt struck down in Buckhannon….” Dearmore, 519F.3d at 524.

Other Circuits and judges, however, recognize theobvious connection to Buckhannon’s rejection of the“catalyst theory” in this context. Writing for the SixthCircuit, Judge Sutton concluded that Buckhannon andSole “make clear, we think, that, when a claimant winsa preliminary injunction and nothing more, thatusually will not suffice to obtain fees under § 1988.”McQueary, 614 F.3d at 604. The Fourth Circuit,pointing to Buckhannon, likewise has declared: “Thepreliminary injunction inquiry, because of thepreliminary, incomplete examination of the meritsinvolved and the incorporation (if not predominance)of equitable factors, is ill-suited to guide the prevailingparty determination ….” Smyth, 282 F.3d at 277 n. 8.

Recognition of the importance of Buckhannon is notlimited to the Fourth and Sixth Circuits. The EighthCircuit declined to find prevailing party status basedon a preliminary injunction in a case where thedefendant city responded to the injunction byamending the challenged ordinance. That Circuitreasoned that, because “the Supreme Court hasrejected the ‘catalyst’ theory of fee recovery as a meansof attaining prevailing party status,” a preliminaryinjunction followed by voluntary changes does notmake the plaintiff a prevailing party. Advantage

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Media, 511 F.3d at 838; see also Coates v. Powell, 639F.3d 471, 475 (8th Cir. 2011) (plaintiff not a prevailingparty even though he obtained a favorable settlementbecause the “court did not approve a settlement, norenter a judgment on the merits or a consent decree.”)Similarly, the Federal Circuit cautioned that “in ourview, Buckhannon does not allow a court to take whatwould otherwise be a ‘catalyst theory’ case and convertit—through language like that used [in an orderdismissing the case after it was mooted]…into a casewhere the plaintiff is nevertheless accorded ‘prevailingparty’ status.” Rice Servs., Ltd. v. United States, 405F.3d 1017, 1027 (Fed. Cir. 2005). As Judge Hendersonput it, the “words ‘preliminary’ and ‘prevailing’ are notones that fit easily together.” Select Milk Producers,400 F.3d at 962 (Henderson, J., dissenting).

2. The Tenth Circuit’s Approach CreatesIncentives For More, Not Less,Litigation.

The Tenth Circuit’s approach creates incentives forall parties involved to expand and extend thelitigation. For instance, following Buckhannon,plaintiffs’ lawyers have given the advice that aplaintiff in a § 1983 case should “move for apreliminary injunction at the earliest possible momentin the case” to improve the chance of attaining“prevailing party” status. Hiram Sasser, Paying forJustice: The Recovery of Attorneys Fees under Section1988, 47 Advocate (Texas) 32, 33 (2009). Indeed,“plaintiffs have no choice but to pursue a preliminaryinjunction, when applicable, at the earliest stage in thecase.” Id. at 33-34.

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The Tenth Circuit’s approach also gives defendantsincentives to continue to litigate the merits of a case bytaking an appeal of any grant of a preliminaryinjunction. Some Circuits, in fact, explicitly treatdefendants’ failure to appeal a preliminary injunctionas a factor in favor of granting a plaintiff prevailingparty status. Thus, defendants have to think twiceabout making voluntary changes that moot such a caseinstead of taking an interlocutory appeal of apreliminary injunction because such a failure to appealwill be held against the defendants when it comes to aplaintiff’s request for attorney’s fees. See Dearmore,519 F.3d at 524 n. 3 (the “lack of an appeal by adefendant has been noted by this Court and others tobe a factor favoring a finding of prevailing partystatus”) (citing D.C. Circuit and Fifth Circuit cases).

Equally undesirable is that the Tenth Circuit’sanalysis guarantees that attorney’s fee determinationswill require litigation over the facts and circumstancessurrounding any grant of preliminary injunctive relief.Under the Tenth Circuit’s approach, a court asked todetermine whether to award attorney’s fees in such asituation necessarily must ask and answer numerousdifficult and fact-intensive questions such as thefollowing: Was the preliminary injunction basedprimarily on an assessment of the plaintiff’s likelihoodof success? Or did the grant of relief depend more onother factors such as the threat of irreparable harmand maintaining the status quo? Would the evidenceregarding a plaintiff’s claims have been different ormore complete at a trial on the merits—as a result ofthe discovery process and more time for the parties todevelop the case? Or was the case essentially“complete” at the preliminary injunction hearing? Didthe preliminary injunction effectively grant the

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plaintiff all of the relief it sought, or only part of therelief? If the latter, was the relief granted enough toconfer prevailing party status? Was the plaintiff’sshowing of a “likelihood of success” sufficiently strongthat it can be characterized as actual success on themerits for attorney’s fee purposes?

The Tenth Circuit’s approach also raises thequestions whether the defendants are entitled to anyappellate review of a district court’s preliminaryassessment of the merits and, if so, how such review isfactored into the attorney’s fee determination. Cf.Frommert v. Conkright, No. 00-6311, 2011 WL5599524, at *16 (W.D.N.Y. Nov. 17, 2011) (“Where aparty has prevailed on some issue or claim, but thecase is still ongoing, subsequent events in thelitigation can vitiate the party’s ‘prevailing’ status.”) Inthis case, for instance, when defendants appealed thegrant of a preliminary injunction, the Tenth Circuitmade two rulings that bear directly on the propriety ofany award of attorney’s fees under the Tenth Circuit’scase-specific approach: First, the Tenth Circuitdetermined that the district court had erred in thescope of the preliminary relief it granted, see Pet. App.124a (the “parties concede that the district court’sorder went beyond the scope of the challenge to Canon5C(2)” and “[c]onsequently, we limit application of thepreliminary injunction”); Second, the Tenth Circuitconcluded that the merit or lack thereof regarding theplaintiffs’ claims depended in large part on importantand unresolved questions of state law for which theTenth Circuit had no answers, resulting in that courtcertifying a number of questions to the KansasSupreme Court. Indeed, the Tenth Circuit concludedthat it could not even determine the merits of theappeal of the preliminary injunction without answers

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to those state law questions. Pet. App. 120a-124a(certifying five questions). And, yet, the Tenth Circuitheld that the plaintiffs are prevailing parties herebased on the District Court’s admittedly incompleteassessment of the merits, an assessment thatnecessarily did not include answers to important,unresolved questions of state law.

Uncertainty—both on the law and the facts—is thenorm, not the exception, in the context of preliminaryinjunctions. Indeed, an attorney’s fee analysis thatdepends on a case-by-case and complicated assessmentof non-precedential district court opinions, decisionsoften rendered in “haste,” with “informal” proceduresand “incomplete” evidence, Camenisch, 451 U.S. at395, is fraught with difficulty, is inefficient, andnecessarily sometimes will result in substantialawards of attorney’s fees (paid with taxpayer money)in cases where the merits of a plaintiff’s claims remainin considerable doubt.

3. “Finality” Is The Key To DeterminingPrevailing Party Status.

A careful reading of this Court’s decision inBuckhannon points to a different answer than the onethe Tenth Circuit embraced in this case. Indeed,Buckhannon and its reasoning readily suggest abright-line rule that would efficiently and uniformlyresolve fee requests in preliminary injunctive reliefcases. The rule to be drawn from Buckhannon isthat—in order to be a “prevailing party”—a plaintiffmust obtain an enforceable “final” judgment or consentdecree; it is not sufficient that there is simply anyorder, ruling or judicial statement—including apreliminary injunction—at any stage of the litigation

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in favor of the plaintiff’s position. A preliminaryinjunction, by definition, is not a “final” determinationof the merits of a case.

A bright-line rule is fully consistent with the legalterm of art “prevailing party”, which contemplates notvictories or defeats along the path of a case, but theultimate resolution of the case. Finality in this senseis the key to determining prevailing party status. Theterm “prevailing party”:

has traditionally—and to my knowledge,...invariably—meant the party that wins the suitor obtains a finding (or an admission) ofliability. Not the party that ultimately gets hisway because his adversary dies before the suitcomes to judgment … [or] becausecircumstances so change that a victory on thelegal point for the other side turns out to be apractical victory … and not the party that getshis way because the other side ceases (forwhatever reason) its offensive conduct.

Buckhannon, 532 U.S. at 615 (Scalia, J., concurring)(emphasis original and added).

What the Tenth Circuit’s “stretching of the term[prevailing party] produces is something more, and farless reasonable: an award of attorney’s fees when themerits of the plaintiff’s case remain unresolved….”Buckhannon, 532 U.S. at 617 (Scalia, J., concurring).“One does not prevail in a suit that is neverdetermined.” Id. at 620. As Judge Sutton has observed,“[p]erhaps, in view of the nature of a preliminaryinjunction, success on this type of interim relief never

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suffices.” McQueary, 614 F.3d at 599. He went on topoint out that:

Adding force to the idea that a “preliminary”victor is never a prevailing party is this reality:Our review of a preliminary injunction ruling,even one that turns on the merits and even onethat is resolved through a published opinion, isnot binding on the panel that reviews theultimate final injunction decision.

Id.

This Court’s decisions certainly do not require theundesirable results that flow from the Tenth Circuit’sapproach to the question presented. In fact, no decisionof the Court has ever upheld an award of attorney’sfees for something less than a “final” judgment on themerits of the case, or a consent decree to same effect.See Buckhannon, 532 U.S. at 605 (“We have onlyawarded attorney’s fees where the plaintiff hasreceived a judgment on the merits or obtained a court-ordered consent decree”); Maher v. Gagne, 448 U.S.122 (1980) (court-approved consent decree qualifies);Hanrahan v. Hampton, 446 U.S. 754, 759 (1980) (percuriam) (plaintiff not a prevailing party for securingreversal of a directed verdict); Hewitt v. Helms, 482U.S. 755, 760, 763 (1987) (an interlocutory ruling thata complaint should not have been dismissed “is not thestuff of which legal victories are made,” nor is “afavorable judicial statement of law in the course oflitigation” when the court awarded no judicial relief);Sole v. Wyner, 551 U.S. 74 (2007) (plaintiff not aprevailing party when she obtained a preliminaryinjunction but lost on the merits at summary judgmentstage); Farrar v. Hobby, 506 U.S. 103 (1992) (nominal

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damage award after trial on the merits qualifies);Hensley v. Eckerhart, 461 U.S. 424 (1983) (jury verdictawarding damages qualifies).

Requiring a final judgment or consent decree in theplaintiff’s favor before granting the plaintiff“prevailing party” status is a “formula for ‘readyadministrability.’” Buckhannon, 532 U.S. at 610(quoting Burlington v. Dague, 505 U.S. 557, 566(1992)). Just as in Buckhannon, the focus here shouldbe on the statutory language and the legal meaning ofthe term of art “prevailing party.” Policy argumentsabout what the meaning of “prevailing party” should orought to be are the province of Congress, not thecourts. Cf. Buckhannon, 532 U.S. at 610 (“Given theclear meaning of ‘prevailing party’ in the fee-shiftingstatutes, we need not determine which way [plaintiffs’]various policy arguments cut.”); id. at 608 (“We areskeptical of [plaintiff’s policy arguments], which areentirely speculative and unsupported by any empiricalevidence”). Congress remains free, of course, to amend§ 1988(b) to address expressly the context ofpreliminary injunctive relief, if it wishes to givestatutory effect to policies that the current languagedoes not.

With all due respect, it is not the Court’s duty orresponsibility to decide what situations fee-shiftingstatutes such as § 1988(b) should or ought to cover.Rather, it is the Court’s responsibility to give thewords of the statute their plain meaning and effect:“Congress ha[s] not ‘extended any roving authority tothe Judiciary to allow counsel fees as costs orotherwise whenever the courts might deem themwarranted.’” Buckhannon, 532 U.S. at 610 (quotingAlyeska Pipeline, 421 U.S. at 260).

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The Court should grant the petition to resolve theimportant and recurring question presented. TheCourt should make clear that Buckhannon meanswhat it says and the “catalyst theory”—in whateverform it takes, including in the preliminary injunctioncontext—is not a valid reading of the “prevailingparty” requirement in 42 U.S.C. § 1988(b).

*****

The question presented in this case has bedeviledand confounded the lower courts, as those courtsreadily and expressly have acknowledged. SomeCircuits have held that Buckhannon controls thequestion here; others assert that Buckhannon hasnothing to do with the question. No matter whichCircuits are correct on this crucial point, the questionpresented is more than ripe for this Court’s attentionand a definitive answer.

On the merits, the Tenth Circuit effectively openedthe backdoor to the “catalyst theory” after this Courtbarred the front door in Buckhannon. Furthermore,the Tenth Circuit’s approach ensures more litigationby the parties over any attorney’s fee request when apreliminary injunction is granted. In stark contrast, arule that a plaintiff must obtain a final judgment orconsent decree to attain “prevailing party” status is a“formula for ‘ready administrability.’” Buckhannon,532 U.S. at 610 (citation omitted)).

For all of the reasons discussed above, this casewarrants an exercise of the Court’s plenary review toresolve the important and recurring questionpresented. As Judge Sutton put it when writing for theSixth Circuit: “Buckhannon [and] Sole…make clear,

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we think, that when a claimant wins a preliminaryinjunction and nothing more, that usually will notsuffice to obtain fees under § 1988. What remainsunclear is when the occasional exceptions to that ruleshould apply, a contextual and case-specific inquiry….”McQueary, 614 F.3d at 604 (emphasis added). Thatuncertainty causes complicated and extensiveattorney’s fee litigation, at a high cost to state andlocal governments.

CONCLUSION

The petition for a writ of certiorari should begranted.

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Respectfully submitted,

DEREK SCHMIDT ATTORNEY GENERAL OF KANSASJEFFREY A. CHANAY DEPUTY ATTORNEY GENERALSTEPHEN R. MCALLISTER SOLICITOR GENERAL OF KANSAS COUNSEL OF RECORDSTEPHEN O. PHILLIPS ASSISTANT ATTORNEY GENERAL120 S.W. 10TH ST., 2ND FLOORTOPEKA, KS 66612(785) 296-2215(stevermac@fastmail.fm)

GEORGE T. PATTON, JR. BOSE MCKINNEY & EVANS LLP700 NORTH ONE LAFAYETTE CENTRE1120 20TH STREET, N.W.WASHINGTON, DC 20036(202) 470-1944(Gpatton@boselaw.com)

Counsel for Petitioners

December 28, 2011

APPENDIX

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APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion, United States Court ofAppeals, Tenth Circuit(August 9, 2011) . . . . . . . . . . . . . 1a

Appendix B: Memorandum and Order, In theUnited States District Court forthe District of Kansas(November 19, 2009) . . . . . . . . 23a

Appendix C: Memorandum and Order, In theUnited States District Court forthe District of Kansas(July 19, 2006) . . . . . . . . . . . . . 34a

Appendix D: Order, United States Court ofAppeals for the Tenth Circuit(September 30, 2011) . . . . . . . . 95a

Appendix E: Certification of Questions of StateLaw, United States Court ofAppeals, Tenth Circuit, Case No.06-3290(March 12, 2008) . . . . . . . . . . . 97a

Appendix F: Certified Questions, in theSupreme Court of the State ofKansas, Case No. 100,170(December 8, 2008) . . . . . . . . 126a

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Appendix G: Decision dismissing as moot,United States Court of Appeals,Tenth Circuit, Case No. 06-3290(April 17, 2009) . . . . . . . . . . . 167a

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APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

No. 09-3356

[Filed August 9, 2011]_________________________________________KANSAS JUDICIAL WATCH; )HONORABLE CHARLES M. HART; )ROBB RUMSEY, )

) Plaintiffs - Appellants, )

)v. )

)MIKE L. STOUT, in his official capacity )as a Member of the Kansas Commission )on Judicial Qualifications; JENNIFER L. )JONES, in her official capacity as a )Member of the Kansas Commission )on Judicial Qualifications; NANCY )ANSTAETT, in her official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; J. PATRICK )BRAZIL, in his official capacity as a )Member of the Kansas Commission )on Judicial Qualifications; THEODORE ) B. ICE, in his official capacity as a )Member of the Kansas Commission )

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on Judicial Qualifications.; CHRISTINA )PANNBACKER; WILLIAM B. SWEARER, ) in his official capacity as a Member of the )Kansas Commission on Judicial )Qualifications; CAROLYN TILLOTSON, in )her official capacity as a Member of the )Kansas Commission on Judicial )Qualifications; ROBERT FLEMING; )BRUCE BUCHANAN; MARY DAVIDSON )COHEN; ROBERT A. CREIGHTON, in his )official capacity as a Member of the Kansas )Commission on Judicial Qualifications; )DAVID J. KING, in his official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; LAWRENCE E. )SHEPPARD, in his official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; EDWARD G. )COLLISTER, JR., in his official capacity )as Commission Examiner for the Kansas )Commission on Judicial Qualifications; )STANTON A. HAZLETT, in his official )capacity as Disciplinary Administrator; )FRANK D. DIEHL, in his official capacity )as Deputy Disciplinary Administrator; )ALEXANDER M. WALCZAK, in his official )capacity as Deputy Disciplinary )Administrator; JANITH A. DAVIS, in her )official capacity as Deputy Disciplinary )Administrator; GAYLE B. LARKIN, in her )official capacity as Admissions Attorney, )

) Defendants - Appellees. )_________________________________________ )

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Appeal from the United States District Court for the District of Kansas

(D.C. No. 5:06-CV-04056-JAR-KGS)______________________________

Josiah S. Neeley, Bopp, Coleson & Bostrom, TerreHaute, Indiana (Jeffrey P. Gallant, James Bopp, Jr.,and Anita Y. Woudenberg, Bopp, Coleson & Bostrom,Terre Haute, Indiana; and Austin K. Vincent, Topeka,Kansas, with him on the briefs) forPlaintiffs-Appellants.

George T. Patton, Jr., Bose McKinney & Evans LLP,Indianapolis, Indiana (Marisol Sanchez, BoseMcKinney & Evans LLP, Indianapolis, Indiana; andStephen O. Phillips, Office of the Attorney General ofthe State of Kansas, Topeka, Kansas, on the brief) forDefendants-Appellees.

______________________________

Before KELLY, EBEL, and HOLMES, CircuitJudges.

______________________________

EBEL, Circuit Judge.

Plaintiffs-Appellants Kansas Judicial Review(“KJR”), the Honorable Charles M. Hart, and RobbRumsey appeal from the district court’s order denyingtheir motion for attorney’s fees. This case requires usto decide whether Appellants qualify as “prevailingparties” entitled to attorney’s fees under 42 U.S.C.§ 1988 where they secured a preliminary injunctionthat afforded some of the relief sought in thecomplaint, the district court granted the injunctionafter finding that Appellants were substantially likely

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to succeed on the merits of their claims, and theactions of third parties mooted the case before thisCourt had the opportunity to determine the validity ofthe preliminary injunction on appeal. Exercisingjurisdiction under 28 U.S.C. § 1291, we hold that thepreliminary injunction conferred prevailing-partystatus on Appellants. Accordingly, we REVERSE thejudgment of the district court and REMAND forfurther proceedings.

I. BACKGROUND

Our two prior opinions in this case discuss therelevant factual background in some detail, and werecite only those facts necessary to resolve the instantappeal. See Kan. Judicial Review v. Stout (Stout IV),562 F.3d 1240, 1244–45 (10th Cir. 2009); Kan. JudicialReview v. Stout (Stout II), 519 F.3d 1107, 1111–14(10th Cir. 2008). Kansas provides for the popularelection of judges in almost half of its judicial districts.In 1995, the Kansas Supreme Court adopted theKansas Code of Judicial Conduct (the “Code”) togovern the behavior of judges and candidates for statejudicial office. See Kan. Sup. Ct. R. 601A (1995). UntilMarch 1, 2009, the Code prohibited judicial candidatesfrom making certain kinds of pledges andcommitments and from personally soliciting supportfor their campaigns. Canon 5A(3)(d)(i) stated thatjudicial candidates “should not make pledges orpromises of conduct in office other than the faithfuland impartial performance of the duties of the office”(“Pledges Clause”). (Aplt. App., vol. I at 23.) Canon5A(3)(d)(ii) prohibited judicial candidates from“mak[ing] statements that commit or appear to committhe candidate with respect to cases, controversies orissues that are likely to come before the court”

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(“Commits Clause”). (Id.) Canon 5C(2) provided that “acandidate shall not personally . . . solicit publiclystated support” (“Solicitation Clause”). (Id. at 24.)

In May 2006, KJR, Hart, and Rumsey sued theindividual members of the Kansas Commission onJudicial Qualifications (the “Commission”)1 under 42U.S.C. § 1983 to challenge the constitutionality ofthese canons. Appellants claimed that the Pledges,Commits, and Solicitation clauses violated the Firstand Fourteenth Amendments to the U.S. Constitutionby infringing on their rights of free speech andassociation. Specifically, KJR, a nonpartisan politicalaction committee that educates citizens about judicialcandidates, alleged that it wished to collect andpublish responses to a “2006 Judicial CandidateQuestionnaire” (the “Questionnaire”) before theprimary election on August 1, 2006. But candidateswould not respond to the questions, which weredesigned to elicit their views on a variety of politicaland legal issues, for fear of being disciplined under thePledges and Commits clauses. Hart, an incumbentdistrict judge up for re-election in 2008, asserted thathe desired to go door-to-door to seek signatures on anomination petition, but he feared discipline under theSolicitation Clause. And Rumsey, a candidate fordistrict judge in the 2006 election, alleged that hewanted to express his views to the public by answeringthe Questionnaire but was afraid to do so because ofthe canons. Appellants sought a declaration that thecanons were unconstitutional, as well as preliminary

1 The Commission is responsible for investigating allegations ofCode violations and recommending disciplinary action whennecessary.

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and permanent injunctive relief prohibitingenforcement of the canons.

On the same day that they filed their complaint,KJR, Hart, and Rumsey also moved for a preliminaryinjunction to prevent the Commission from initiatingdisciplinary proceedings under the canons againstjudicial candidates who responded to theQuestionnaire. After a hearing, the district courtissued a written order granting preliminary relief. SeeKan. Judicial Watch v. Stout (Stout I), 440 F. Supp. 2d1209 (D. Kan. 2006). In a thoughtful andcomprehensive opinion, the district court determinedthat Appellants satisfied each of the four requirementsfor a preliminary injunction.2 Id. at 1225–39. The courtfirst concluded that Appellants were substantiallylikely to succeed on the merits of their claims. Id. at1225–38, 1240. It analyzed the canons in light of the

2 In order to secure a preliminary injunction, the moving partymust establish the following elements: (1) a substantial likelihoodof success on the merits; (2) irreparable injury will result if theinjunction does not issue; (3) the threatened injury to the movantoutweighs any damage the injunction may cause the opposingparty; and (4) issuance of the injunction would not be adverse tothe public interest. Schrier v. Univ. of Co., 427 F.3d 1253, 1258(10th Cir. 2005). If, however, the movant can demonstrate thatthe latter three elements weigh heavily in its favor, “the test ismodified, and the [movant] may meet the requirement for showingsuccess on the merits by showing that questions going to themerits are so serious, substantial, difficult, and doubtful as tomake the issue ripe for litigation and deserving of more deliberateinvestigation.” Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002) (internal quotation marks omitted). The district court inthis case did not apply the “modified” test. For reasons that willbe explained below, that fact is critical to our determination thatAppellants are “prevailing parties.”

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Supreme Court’s decision in Republican Party ofMinnesota v. White, 536 U.S. 765 (2002), and foundeach of the Pledges, Commits, and Solicitation Clausesunconstitutional on its face and as applied. Stout I,440 F. Supp. 2d at 1233–34 (Pledges and Commitsclauses), 1237–38 (Solicitation Clause); see also id. at1240 (“This Court follows the Supreme Court’s opinionin White and finds certain Kansas judicial canonsunconstitutional.”). After a painstaking examination ofthe merits prong of the preliminary-injunctionstandard, the court succinctly concluded thatAppellants satisfied the other three elements. See id.at 1239 (finding that (1) the chilling effect of thecanons on the exercise of Appellants’ First Amendmentrights constituted irreparable injury, (2) the injury toAppellants outweighed any harm to the Commission,and (3) the injunction would serve the public’s interestin receiving speech and learning about judicialcandidates). Accordingly, the district court enjoinedthe Commission from enforcing the canons against anyjudicial candidate. Id. at 1241.

The Commission appealed the grant of thepreliminary injunction to this Court on August 11,2006. Because the appeal “presented . . . several noveland unsettled questions of state law, the resolution ofwhich could substantially alter our determination ofthe federal constitutional issues at stake,” we certifiedfive questions regarding interpretation of the canonsto the Kansas Supreme Court. Stout II, 519 F.3d at1122. In December 2008, that court answered ourquestions and also indicated that it had beenpresented with, but not yet considered, proposedrevisions to the Code. Kan. Judicial Review v. Stout(Stout III), 196 P.3d 1162, 1171–79 (Kan. 2008).Approximately one month later, the Kansas Supreme

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Court amended the Code by adopting Rule 601B,which took effect on March 1, 2009. See Kan. Sup. Ct.R. 601B (2009) (superseding Kan. Sup. Ct. R. 601A(1995)). Rule 601B “completely eliminate[d] thechallenged portion of the Solicitation Clause” and“materially narrow[ed] the language and scope of thePledges and the Commits Clauses.” Stout IV, 562 F.3dat 1245. Consequently, this Court vacated thepreliminary injunction, dismissed the Commission’sappeal as moot, and remanded the case to the districtcourt for dismissal. Id. at 1249.

After the district court dismissed the case, KJR,Hart, and Rumsey filed a motion seeking attorney’sfees. They argued that they qualified as “prevailingparties” entitled to a fee award under 42 U.S.C. § 1988because the preliminary injunction constituted a“judicially enforceable judgment that materiallyalter[ed] the legal relationship between the parties.”(Aplt. App., vol. III at 426–27.) On November 19, 2009,the district court denied the motion, reasoning, inpertinent part, as follows:

The primary relief sought by plaintiffs wasdeclaratory relief. While plaintiffs succeeded inpreserving the status quo—no disciplinaryaction for answering the questionnaire and forsoliciting publicly-stated support— they did notsucceed in obtaining relief on the merits.Plaintiffs did not merely seek an injunction thatallows them to answer and distribute thequestionnaire and solicit publicly-stated supportin the 2006 primary election. They soughtdeclarations that the judicial canons at issuewere unconstitutional both on their face and asapplied to the questionnaire and petitions, in

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2006 and beyond. Under these circumstances,the Court does not find that the legalrelationship between the parties was materiallyaltered by the preliminary injunction.

(Id. at 629.)

Appellants now seek review of the district court’sruling that the preliminary injunction did not makethem “prevailing parties” for purposes of § 1988.

II. DISCUSSION

In 42 U.S.C. § 1988(b), Congress created anexception to the “American Rule” that each partyordinarily must pay its own attorney’s fees. Section1988(b) provides that in civil-rights actions broughtunder 42 U.S.C. § 1983, “the court, in its discretion,may allow the prevailing party, other than the UnitedStates, a reasonable attorney’s fee as part of the costs.”42 U.S.C. § 1988(b). Whether a litigant qualifies as a“prevailing party” under a fee-shifting statute such as§ 1988 is a question of law that we review de novo. SeeLorillard Tobacco Co. v. Engida, 611 F.3d 1209,1214–15 (10th Cir. 2010); Al-Maleki v. Holder, 558F.3d 1200, 1204 (10th Cir. 2009).

A. Meaning of “Prevailing Party” in the Contextof Preliminary Injunctions

The Supreme Court set forth the general standardgoverning the prevailing-party determination in TexasState Teachers Ass’n v. Garland Independent SchoolDistrict (TSTA), 489 U.S. 782 (1989). There, the Courtstated that “[t]he touchstone of the prevailing partyinquiry must be the material alteration of the legal

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relationship of the parties in a manner which Congresssought to promote in the fee statute.” Id. at 792–93. The Court explained that a material alteration in theparties’ legal relationship occurs when “the plaintiffhas succeeded on any significant issue in litigationwhich achieved some of the benefit the parties soughtin bringing suit.” Id. at 791–92 (internal alteration andquotation marks omitted). This standard requires that“‘a plaintiff receive at least some relief on the merits ofhis claim before he can be said to prevail.’” Id. at 792(quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)).

This Court has twice addressed whether a plaintiffwho secured a preliminary injunction could satisfy thestandard set forth in TSTA. In Dahlem v. Board ofEducation, 901 F.2d 1508 (10th Cir. 1990), ScottDahlem, a high-school senior, desired to participate ininterscholastic gymnastics. Id. at 1510. But Dahlem’sschool only had a girls’ gymnastics team, and the statehigh-school activities association did not allow boys tojoin girls’ athletics teams. Id. Dahlem filed suit under42 U.S.C. § 1983, alleging that this situation amountedto unconstitutional gender discrimination under theFourteenth Amendment. Id. After an initial hearing,the district court granted Dahlem a preliminaryinjunction that allowed him to participate ininterscholastic gymnastics during the pendency of thecase. Id. The defendants appealed the district court’sinterlocutory ruling to this Court, but while the appealwas pending, the gymnastics season ended. Id. Thisrendered the case moot because Dahlem was scheduledto graduate before the beginning of the next season. Id.After the district court vacated the injunction anddismissed the case per our instructions, Dahlem fileda motion for attorney’s fees, which the district courtdenied. Id.

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On appeal, we considered whether the preliminaryinjunction rendered Dahlem a “prevailing party” eventhough the injunction was vacated on mootnessgrounds before the defendants could challenge itsvalidity in this Court. Id. at 1511. We began by statingthat “[f]or the purpose of deciding whether a plaintiffis a prevailing party, a preliminary injunction isconsidered a decision on the merits so long as itrepresents an unambiguous indication of probablesuccess on the merits, and not merely a maintenanceof the status quo.” Id. (internal alteration andquotation marks omitted). The injunction at issuethere met that standard because the district court’sorder granting preliminary relief explicitly stated thatthere was a substantial likelihood that Dahlem wouldultimately prevail on his claim. Id. We next observedthat TSTA requires a plaintiff to receive at least somerelief on the merits of his claim before he may bedeemed a “prevailing party,” but that nothing in TSTAor any other Supreme Court case precludes a plaintifffrom obtaining that relief by some means other than afinal judgment. See id. at 1512. Thus, we adopted therule that “a party which achieves the objective of itssuit by means of an injunction issued by the districtcourt [after an unambiguous finding of probablesuccess on the merits] is a prevailing party in thatcourt, notwithstanding the fact that the case becomesmoot, through no acquiescence by the defendant, whilethe order is on appeal.” Id. (footnote omitted). Underthat rule, Dahlem qualified for prevailing-party statusbecause the preliminary injunction afforded him all ofthe relief he sought in bringing suit:

[Dahlem] brought suit so that he couldparticipate in interscholastic gymnastics duringhis senior year. Because of the district court’s

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preliminary injunction, he did so participate. Nosubsequent judicial proceedings could havegiven him any more relief on his claim. Itcannot be suggested that Dahlem’s foray intothe legal system was anything but completelysuccessful.

Id. at 1513.

We reached a different conclusion in BiodiversityConservation Alliance v. Stem, 519 F.3d 1226 (10thCir. 2008). In that case, the U.S. Forest Serviceauthorized a sale of timber in the Cement Region ofthe Black Hills National Forest (the “Cement Project”).Id. at 1227–28. The Biodiversity Conservation Alliance(“BCA”) filed a complaint alleging that the ForestService’s actions in planning and developing theCement Project violated various environmentalstatutes and the Administrative Procedures Act(“APA”). Id. at 1228. BCA also moved for a preliminaryinjunction to stop the imminent timber sale. Id.

In ruling on BCA’s motion, the district court foundthat BCA would suffer irreparable injury as a result ofpermanent species loss if the sale went forward. Id.Further, because “the equities tipped heavily towards[BCA],” the district court required only that BCA raisesubstantial questions on the merits rather than provea substantial likelihood of success on the merits. Id.(internal alteration and quotation marks omitted). The court concluded that BCA satisfied the“substantial questions” standard and granted thepreliminary injunction “to maintain the status quoantebellum” until the court could make a final ruling.Id. (internal quotation marks omitted).

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During the pendency of the litigation, a forest firedestroyed approximately ten percent of the timber inthe Cement Region that the Forest Service hadplanned to sell. Id. Consequently, the Forest Servicewithdrew the Cement Project, and the district courtdismissed the case as moot. Id. BCA then moved forattorney’s fees, relying in part on the preliminaryinjunction. Id. The district court granted the motion,and the Forest Service appealed. Id. at 1229.

On appeal, we cited TSTA and explained that “[a]preliminary injunction that does not provide a plaintiffwith relief on the merits of her claim cannot serve asthe basis for prevailing party status.” Id. at 1232.Applying that rule, we held that the preliminaryinjunction obtained by BCA was insufficient to makeBCA a “prevailing party” because the injunction didnot provide any of the relief that BCA sought in itscomplaint. Id. BCA sought a determination that theCement Project violated environmental statutes andthe APA, but the district court’s order grantingpreliminary relief did not “address[] whether theCement Project was arbitrary and capricious.” Id.Instead, the court granted the injunction largelybecause the balance of equities favored BCA. Id.Therefore, in obtaining the preliminary injunction,BCA won nothing more than “the right to have thestatus quo preserved, so that had [BCA] prevailed onthe merits, its victory would have meaning.” Id.

In dicta in Biodiversity, we questioned whetherDahlem remains good law after the Supreme Court’sdecisions in Buckhannon Board and Care Home, Inc.v. West Virginia Department of Health and HumanResources, 532 U.S. 598 (2001), and Sole v. Wyner, 551U.S. 74 (2007). Biodiversity, 519 F.3d at 1232. We

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declined to resolve that issue, however, because thevalidity of Dahlem was irrelevant to our conclusionthat BCA failed to obtain relief on the merits and thuscould not meet the “stringent” prevailing-partystandard of TSTA. See id. at 1232. Having carefullyanalyzed Buckhannon and Sole, we now hold thatDahlem survives those decisions.

The plaintiff in Buckhannon sought to recoverattorney’s fees under the “‘catalyst theory,’ whichposits that a plaintiff is a ‘prevailing party’ if itachieves the desired result because the lawsuitbrought about a voluntary change in the defendant’sconduct.” 532 U.S. at 601. But the Supreme Courtexplicitly rejected that theory as inconsistent with itsprior cases recognizing that a “prevailing party” mustobtain some form of judicial relief, such as a judgmenton the merits or court-ordered consent decree. Id. at604–06. The Court explained that “[a] defendant’svoluntary change in conduct, although perhapsaccomplishing what the plaintiff sought to achieve bythe lawsuit, lacks the necessary judicial imprimatur onthe change.” Id. at 605. Buckhannon thus stands forthe proposition that there must be a judiciallysanctioned alteration in the legal relationship betweenthe parties before a plaintiff can be deemed a“prevailing party.”3

3 Although the Supreme Court in Buckhannon interpreted theterm “prevailing party” under the fee-shifting provisions of theFair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2),and the Americans with Disabilities Act of 1990, 42 U.S.C.§ 12205, the Court recognized that “prevailing party” is a term ofart that Congress has used to mean the same thing in numerousstatutes. See Buckhannon, 532 U.S. at 602–03 & n.4. Accordingly,Buckhannon’s “judicial imprimatur” requirement applies to the

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In Dahlem, we held that the plaintiff attainedprevailing-party status on the basis of a preliminaryinjunction. Buckhannon does not undermine thatconclusion. A preliminary injunction is a form ofcourt-ordered relief. Thus, “[a] preliminary injunctionissued by a judge carries all the ‘judicial imprimatur’necessary to satisfy Buckhannon.” Watson v. Cnty. ofRiverside, 300 F.3d 1092, 1096 (9th Cir. 2002); see alsoPeople Against Police Violence v. City of Pittsburg, 520F.3d 226, 233 n.5 (3d Cir. 2008) (“We need notdetermine in this case the outer limits of the requisite‘judicial imprimatur.’ Whatever those may be,preliminary injunctions are certainly within them.”(citation omitted)). We do not mean to suggest, ofcourse, that every preliminary injunction willnecessarily render the recipient a “prevailing party.”As we have already explained, “to be a prevailing partyon the basis of a preliminary injunction requires ‘reliefon the merits.’” Lorillard Tobacco Co., 611 F.3d at 1217(quoting Biodiversity, 519 F.3d at 1232). We hold onlythat Buckhannon’s “judicial imprimatur” requirementdoes not make preliminary injunctions categoricallyinsufficient to create prevailing-party status.

In Sole, the Supreme Court addressed the questionwhether “a plaintiff who gains a preliminaryinjunction after an abbreviated hearing, but is denieda permanent injunction after a dispositive adjudicationon the merits, qualif[ies] as a ‘prevailing party’ withinthe compass of § 1988(b).” 551 U.S. at 77. The Courtanswered that question in the negative, reasoning that

prevailing-party analysis under § 1988. See Bell v. Bd. of Cnty.Comm’rs, 451 F.3d 1097, 1102 (10th Cir. 2006) (applyingBuckhannon’s definition of “prevailing party” in a § 1988 case).

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whatever “fleeting success” a plaintiff may achievewhen a court grants preliminary injunctive relief isnegated if the court ultimately rules against theplaintiff on the merits. Id. at 83–86. Thus, the Courtheld that “[p]revailing party status . . . does not attendachievement of a preliminary injunction that isreversed, dissolved, or otherwise undone by the finaldecision in the same case.” Id. at 83. Significantly,however, the Court explicitly declined to consider theissue involved in both Dahlem and Biodiversity:

We express no view on whether, in theabsence of a final decision on the merits of aclaim for permanent injunctive relief, success ingaining a preliminary injunction maysometimes warrant an award of counsel fees.We decide only that a plaintiff who gains apreliminary injunction does not qualify for anaward of counsel fees under § 1988(b) if themerits of the case are ultimately decidedagainst her.

Id. at 86; see also Biodiversity, 519 F.3d at 1231(“Unlike the injunction in Sole, the preliminaryinjunction here was not undone by a final decision onthe merits. It is thus in the area explicitly left open bySole.” (citation omitted)); id. at 1232 (“Sole explicitlydeclined to decide the question in [Dahlem] . . . .”).Consequently, Sole, like Buckhannon, leaves ourholding in Dahlem undisturbed.

Given that both Dahlem and Biodiversity stand ascontrolling precedent in this circuit, we must considerboth cases when deciding whether a plaintiff who hassecured a preliminary injunction qualifies as a“prevailing party” eligible for an award of attorney’s

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fees under § 1988. Those cases, along with the relevantSupreme Court precedent, establish two overarchingprinciples:

First, and most fundamental, in order for apreliminary injunction to serve as the basis forprevailing-party status, the injunction must provide atleast some relief on the merits of the plaintiff’sclaim(s). A preliminary injunction provides relief onthe merits when it (a) affords relief sought in theplaintiff’s complaint and (b) represents anunambiguous indication of probable success on themerits. By contrast, a preliminary injunction does notprovide relief on the merits if the district court doesnot undertake a serious examination of the plaintiff’slikelihood of success on the merits but nonethelessgrants the preliminary injunction to preserve thestatus quo because the balance of equities favors theplaintiff.

Second, if a preliminary injunction satisfies therelief-on-the-merits requirement, the plaintiff qualifiesas a “prevailing party” even if events outside thecontrol of the plaintiff moot the case. If, however, thepreliminary injunction is undone by a subsequentadverse decision on the merits, the plaintiff’s transientsuccess in obtaining the injunction does not render theplaintiff a “prevailing party.”

These principles must constitute the beginningpoint (and, perhaps in many cases, also the endingpoint) of the prevailing-party inquiry when a plaintiffrelies on a preliminary injunction as the basis for anaward of attorney’s fees.

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B. The Preliminary Injunction Obtained by KJR,Hart, and Rumsey

In light of the principles set forth above, we have notrouble concluding that KJR, Hart, and Rumsey are“prevailing parties” in this case.

First, the district court’s preliminary injunctionprovided relief on the merits of Appellants’ claims.Regarding the first prong of the relief-on-the-meritsrequirement, the preliminary injunction affordedAppellants relief that they specifically requested intheir complaint. Appellants sought two basic types ofrelief in their complaint: (1) a declaration that thePledges, Commits, and Solicitation clauses wereunconstitutional; and (2) preliminary and permanentinjunctions that would prohibit the Commission fromenforcing the canons against judicial candidates whoresponded to KJR’s questionnaire. The preliminaryinjunction issued by the district court provided thesecond form of relief as long as it was in effect. That is,the preliminary injunction prohibited enforcement ofthe challenged canons and allowed Appellants toengage in their speech activities without fear of adisciplinary action during the pendency of the case.

Furthermore, the district court was clear aboutAppellants’ ultimate likelihood of success on themerits. After carefully analyzing the Pledges,Commits, and Solicitation clauses under the FirstAmendment, the court expressly concluded that thoseclauses were unconstitutional and that Appellantswere substantially likely to succeed on the merits oftheir challenge to the clauses. Stout I, 440 F. Supp. 2dat 1240 (“The Court finds that plaintiffs aresubstantially likely to succeed on the merits of their

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claims concerning the pledges . . . , commits, andsolicitation clauses under Republican Party ofMinnesota v. White.”); id. (“This Court follows theSupreme Court’s opinion in White and finds certainKansas judicial canons unconstitutional.”). We find itdifficult to imagine a more “unambiguous indication ofprobable success on the merits.” Dahlem, 901 F.2d at1511 (internal quotation marks omitted). To borrowthe words of the D.C. Circuit, “this is not a case inwhich a preliminary injunction was based less on thetrial court’s view of the merits than on a perceivedhardship to the plaintiff. Rather, [Appellants] secureda preliminary injunction in this case largely becausetheir likelihood of success on the merits was neverseriously in doubt.” Select Milk Producers, Inc. v.Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005) (citationomitted).

Second, this Court dissolved the preliminaryinjunction only after the Kansas Supreme Courtamended the challenged canons and renderedAppellants’ claims against the Commission moot.Significantly, no court ever ruled against Appellantson the merits. Accordingly, the preliminary injunctionwas sufficient to confer prevailing-party status onAppellants, “notwithstanding the fact that the casebec[a]me[] moot, through no acquiescence by the[Commission], while the order [was] on appeal.”Dahlem, 901 F.2d at 1512; see also, e.g., Dupuy v.Samuels, 423 F.3d 714, 723 & n.4 (7th Cir. 2005);Select Milk Producers, 400 F.3d at 947–48; Watson,300 F.3d at 1096.

The district court determined that Appellants werenot “prevailing parties” because they never obtainedthe “primary relief sought.” Specifically, the court

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reasoned that “[t]he primary relief sought by plaintiffswas declaratory relief. . . . Plaintiffs did not merelyseek an injunction . . . . They sought declarations thatthe judicial canons at issue were unconstitutional . . . .Under these circumstances, the Court does not findthat the legal relationship between the parties wasmaterially altered by the preliminary injunction.” (Aplt. App., vol. III at 629.)

We cannot agree with the district court’s analysis,as it conflicts with the Supreme Court’s directives inTSTA. In that case, the Court made clear that theprevailing-party determination does not turn onwhether the plaintiff has prevailed on the “centralissue” or obtained the “primary relief sought.” 489 U.S.at 790–92. “[T]he search for the ‘central’ and‘tangential’ issues in the lawsuit, or for the ‘primary,’as opposed to the ‘secondary,’ relief sought, much likethe search for the golden fleece, distracts the districtcourt from the primary purposes behind § 1988 and isessentially unhelpful in defining the term ‘prevailingparty.’” Id. at 791. Instead, the critical inquiry iswhether “the plaintiff has succeeded on any significantissue in litigation which achieved some of the benefitthe parties sought in bringing suit.” Id. at 791–92(emphases added) (alteration and internal quotationmarks omitted); see also McQueary v. Conway, 614F.3d 591, 603 (6th Cir. 2010) (“A plaintiff crosses thethreshold to ‘prevailing party’ status by succeeding ona single claim, even if he loses on several others andeven if that limited success does not grant him the‘primary relief’ he sought.”). Where, as in this case,that standard has been met, “the degree of theplaintiff’s overall success goes to the reasonableness ofthe award . . . , not to the availability of a fee awardvel non.” TSTA, 489 U.S. at 793; see also McQueary,

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614 F.3d at 603 (“The significance of the relief obtainedgoes only to the amount of fees.”).

In its brief, the Commission raises one ground foraffirmance that was not relied on by the district court.Specifically, the Commission contends that thepreliminary injunction cannot serve as the basis forprevailing-party status because it was ultimatelyvacated, leaving Appellants without an enforceablejudgment. This argument ignores our holding inDahlem and the critical distinction betweenpreliminary injunctions vacated on mootness groundsand preliminary injunctions vacated as a result of anadverse decision on the merits.4 Appellants secured apreliminary injunction that materially altered thelegal relationship between the parties by providingrelief on the merits of Appellants’ claims. Thisinjunction continued in effect until the KansasSupreme Court took actions that mooted the case.Neither this Court nor the district court ever issued anorder undermining the district court’s assessment ofthe merits of Appellants’ claims or Appellants’ legalentitlement to relief. Accordingly, the fact that the

4 The First Circuit recently explained the distinction as follows:

Reversal on the merits deprives a plaintiff of “prevailingparty” status because it repudiates the favorable changein the parties’ legal relationship effectuated by the districtcourt’s judgment and holds that the plaintiff was neverlegally entitled to such relief. In contrast, in the mootnesscontext, a “prevailing party” is a party who managed toobtain a favorable, material alteration in the legalrelationship between the parties prior to the interveningact of mootness.

Diffenderfer v. Gomez-Colon, 587 F.3d 445, 453 (1st Cir. 2009).

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preliminary injunction was vacated does not depriveAppellants of their status as “prevailing parties.”

III. CONCLUSION

KJR, Hart, and Rumsey obtained a preliminaryinjunction that provided some of the relief sought inthe complaint, represented an unambiguous indicationof probable success on the merits, and was dissolvedonly after the actions of third parties mooted the case.Under these circumstances, we hold that Appellantsare “prevailing parties” within the meaning of 42U.S.C. § 1988. Therefore, we REVERSE the judgmentof the district court and REMAND for furtherproceedings.

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APPENDIX B

ams

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

Case No. 06-4056-JAR

[Filed November 19, 2009]___________________________________KANSAS JUDICIAL REVIEW, et al., )

)Plaintiffs, )

)vs. )

)MIKEL L. STOUT, et al., )

)Defendants. )

___________________________________ )

MEMORANDUM AND ORDER

Before the Court are plaintiffs’ Motion for AttorneyFees (Doc. 114) and Second Motion for Attorney Fees(Doc. 116). The motions are fully briefed and the Courtis prepared to rule. As set forth below, the Courtdenies plaintiffs’ motions.

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Background

Plaintiffs Kansas Judicial Review (“KJR”),1 theHonorable Charles M. Hart, and Robb Rumsey filedthis action on May 24, 2006. Plaintiffs asserted claimsunder 42 U.S.C. § 1983, challenging various canons ofthe Kansas Supreme Court’s Rules of Judicial Conducton their face and as-applied and enforced.

First, plaintiffs challenged Canon 5A(3)(d)(i) and(ii), referred to as the “pledges and promises clause”and “commit” clause. They argued that these clauseswere unconstitutionally overbroad and vague on theirface and as applied to the KJR Questionnaire.

Plaintiffs further argued that Canon 3E(1), the“recusal canon,” was unconstitutional as applied to theKJR Questionnaire because it chills speech bysubjecting judges to discipline for announcing theirviews on disputed legal and political issues.

Plaintiffs made the following claims regardingCanon 5C(2), the “solicitation of publicly-statedsupport” clause: (1) The clause is unconstitutionallyvague and overbroad on its face and prohibits andchills plaintiffs’ freedom of speech and association; (2)the Commission’s enforcement policy of this clause, asexpressed in Advisory Opinion JE 100,

1 KJR is a political action committee that is not associated withany political candidate, party, or campaign committee. KJRgathered information and published questionnaires about judicialcandidates. KJR intended to publish responses to its 2006 JudicialCandidate Questionnaire (“Questionnaire”) of judicial candidatesbefore the primary election on August 1, 2006 and declared itsintention to do so in future elections, as well.

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unconstitutionally chills and prohibits plaintiffs’freedom of speech and association; (3) theCommission’s enforcement policy of this clause asexpressed in JE 117 unconstitutionally chills andprohibits the freedom of speech and association ofJudge Hart; (4) the clause unconstitutionally prohibitsand chills plaintiffs’ freedom of speech and associationas applied to the Questionnaire; and (5) the clauseunconstitutionally prohibits and chills plaintiffs’freedom of speech and association as applied to theNomination Petitions for which Judge Hart sought topersonally solicit signatures.

Plaintiffs sought declaratory judgments that theseprovisions are unconstitutional on their face, asapplied, and as enforced. Plaintiffs also asked theCourt, by way of preliminary and permanentinjunction, to prohibit defendants from enforcing theseCanons and from filing or considering complaintsbased on these Canons against judicial candidates whorespond to the Questionnaire or solicit signatures fornominating petitions. Defendants argued that the casewas not justiciable on several grounds and opposed theissuance of a preliminary injunction on the merits.

This Court held an evidentiary hearing onplaintiffs’ motion for preliminary injunction and heardoral argument on June 28, 2006. On July 19, 2006, theCourt entered a Memorandum and Order granting inpart and denying in part plaintiffs’ motion forpreliminary injunction (Doc. 51). The Court found thatthe case was justiciable, as plaintiffs had standing, thecase was ripe, and the Court declined to abstain. TheCourt granted the motion for preliminary injunctionwith respect to Canon 5A(3)(d)(i) and (ii) (pledges andpromises and commit clauses) and 5C(2) (solicitation

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of publicly stated support clause), and denied themotion with respect to Canon 3E(1) (recusal canon).The Court enjoined and prohibited defendants fromenforcing the subject canons, Kan. S. Ct. R. 601A,Canon 5A(3)(d)(i) and (ii) and Canon 5C(2), againstany candidate for judicial office, including anincumbent judge.

Defendants filed an interlocutory appeal of theCourt’s decision granting the preliminary injunctionand the Court stayed the case pending a decision onappeal.2 On March 12, 2008, the Tenth Circuit issuedan opinion finding that “plaintiffs’ claims rest onsufficiently novel and determinative questions of statelaw that certification is warranted. In order toadjudicate plaintiffs’ constitutional claims, we mustdetermine the scope and meaning of the three statecanons at issue.”3 The court certified five questions tothe Kansas Supreme Court.4

On December 5, 2008, the Kansas Supreme Courtissued an opinion that answered the certifiedquestions and construed the judicial canons as theyexisted at the time the opinion was filed.5 In January

2 There was no cross-appeal of the Court’s denial of the motion forpreliminary injunction on the recusal canon.

3 Kansas Judicial Review v. Stout, 519 F.3d 1107, 1120 (10th Cir.2008).

4 Id. at 1122.

5 Kansas Judicial Review v. Stout, 196 P.3d 1162, 1171 (Kan.2008) (acknowledging the Commission’s recommendedamendments to the Kansas Code of Judicial Conduct and

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2009, the Kansas Supreme Court amended the judicialcode by adopting Rule 601B.6 This rule eliminated thepublicly-stated support clause in Canon 5C(2) andnarrowed the language and scope of the pledges andpromises and commit clauses.

On April 17, 2009, the Tenth Circuit dismissed theappeal, vacating the preliminary injunction andremanding to this Court for dismissal.7 The courtfound that the case became moot on appeal due to theintervening amendment to the judicial canons. TheTenth Circuit applied the general rule that “repeal ofa challenged statute causes a case to become mootbecause it extinguishes the plaintiff’s legallycognizable interest in the outcome, rendering anyremedial action by the court ineffectual.”8 Inaccordance with the Tenth Circuit’s mandate, thisCourt dismissed this action on June 1, 2009.

Discussion

Plaintiffs filed their initial motion for attorney feeson June 12, 2009, claiming to be prevailing partiespursuant to 42 U.S.C. § 1988 based on the preliminaryinjunction this Court issued on June 28, 2006. Theyrequested $213,613.32 in attorney fees and expenses

explaining that its decision is based on “our present Code ofJudicial Conduct.”).

6 Kan. Sup. Ct. R. 601(B) (2009) (effective Mar. 1, 2009).

7 Kansas Judicial Review v. Stout, 562 F.3d 1240 (10th Cir. 2009).

8 Id. at 1246 (citing Citizens for Responsible Gov’t State PoliticalAction Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)).

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for lead counsel and $2500 for local counsel.Defendants responded, arguing that plaintiffs are notprevailing parties under the statute.

Plaintiffs filed a renewed motion for attorney feeson July 13, 2009, this time attaching supportingdocuments and affidavits to support their claim forattorney fees. The renewed motion seeks attorney feesand expenses in the amount of $182,319.42 for leadcounsel and $2527.33 for local counsel. Defendantsagain responded, opposing the motion on the samebasis.

In this district, motions for statutory attorney’s feesare governed by both Fed. R. Civ. P. 54 and D. Kan. R.54.2. Pursuant to local rule,

The court will not consider a motion toaward statutory attorney’s fees made pursuantto Fed. R. Civ. P. 54(d)(2) until the moving partyshall have first advised the court in writing thatafter consultation promptly initiated by themoving party, the parties have been unable toreach an agreement with regard to the feeaward. The statement of consultation shall setforth the date of the consultation, the names ofthose who participated, and the specific resultsachieved.

Plaintiffs failed to file a statement of consultationbefore filing either motion for attorney’s fees. For thisreason, the Court may decline to consider plaintiffs’motions. But defendants do contend in their responsesthat counsel consulted about the basis for the attorneyfees request on June 22, 2009. While this does notconform to the requirements set forth in the local rule,

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the Court proceeds to consider plaintiffs’ motionbecause it intends to rule on the issue of entitlementonly.

In an action under 42 U.S.C. § 1983, “the court, inits discretion, may allow the prevailing party, otherthan the United States, a reasonable attorney’s fee.”9

The United States Supreme Court has discussed inseveral opinions what constitutes a prevailing partyfor purposes of fee shifting statutes. “The touchstoneof the prevailing party inquiry must be the materialalteration of the legal relationship of the parties in amanner which Congress sought to promote in the feestatute.”10 “Prevailing party status, we hold, does notattend achievement of a preliminary injunction that isreversed, dissolved, or otherwise undone by the finaldecision in the same case.”11 But, in Sole, the Courtexplicitly declined to consider whether, “in the absenceof a final decision on the merits of a claim forpermanent injunctive relief, success in gaining apreliminary injunction may sometimes warrant anaward of counsel fees.”12 And prevailing party statusdoes not apply to “a party that has failed to secure ajudgment on the merits or a court-ordered consentdecree, but has nonetheless achieved the desired result

9 942 U.S.C. § 1988(b).

10 Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.782, 792–93 (1989).

11 Sole v. Wyner, 551 U.S. 74, 82 (2007).

12 Id. at 86.

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because the lawsuit brought about a voluntary changein the defendant’s conduct.”13

Plaintiffs set forth the basis for their fee request forthe first time in the reply memorandum to theirrenewed motion, filed on August 7, 2009. In this filing,they argue that they are prevailing parties because theTenth Circuit’s order vacating the preliminaryinjunction does not trigger application of Sole sinceplaintiffs received some relief on the merits of theirclaim, as they were allowed to publish the results ofthe KJR Questionnaire prior to the general electionwithout fear of enforcement action and there was nosubsequent decision on the merits of the preliminaryinjunction. Therefore, plaintiffs urge that thepreliminary injunction in this case “was not undone bya final decision on the merits,” as in Sole.

In Biodiversity Conservation Alliance, the TenthCircuit discussed its pre-Sole and Buckhannondecision in Dahlem v. Board of Education of DenverPublic Schools.14 In Dahlem, a male high schoolstudent filed suit under 42 U.S.C. § 1983, challenginga Colorado High School Activities Association rule thatprohibited boys from joining girls’ athletic teams. Theplaintiff sought to participate in high schoolgymnastics, but the high school only had a girls’

13 Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &Human Res., 532 U.S. 598, 600 (2001); see also BiodiversityConservation Alliance v. Stem, 519 F.3d 1226, 1229 (10th Cir.2008).

14 901 F.2d 1508 (10th Cir. 1990).

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gymnastics team.15 The district court granted theplaintiff’s motion for preliminary injunction, allowinghim to participate on the gymnastics team, but thecase was ultimately found to be moot when theplaintiff graduated from high school.16 The TenthCircuit held that “a party which achieves the objectiveof its suit by means of an injunction issued by thedistrict court is a prevailing party in that court,notwithstanding the fact that the case becomes moot,through no acquiescence by the defendant, while theorder is on appeal.”17 The Tenth Circuit explained inBiodiversity Conservation Alliance, that “if Dahlem isstill good law, it at best stands for the proposition thata preliminary injunction cannot serve as the basis forattorney fees if it does not meet the stringentstandards set forth in Texas State Teachers Associationand Hewitt.”18

In discussing the preliminary injunction standardin its June 28, 2006 Memorandum and Order, theCourt explained that plaintiffs’ motion asked “that thestatus quo be preserved by prohibiting potentiallyunconstitutional enforcement of the canons until thecase can be decided on the merits.” And “becauseplaintiffs seek declaratory relief, the injunction wouldnot provide all of the relief sought at the conclusion of

15 Id. at 1510.

16 Id.

17 Id. at 1512.

18 Biodiversity Conservation Alliance, 519 F.3d at 1232 (citing Tex.State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,792–93 (1989); Hewitt v. Helms, 482 U.S. 755, 760 (1987)).

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a trial on the merits.” Defendants admitted that therewas no disciplinary proceeding pending against ajudicial candidate or judge under the challengedcanons. For these reasons, the Court declined to findthat plaintiffs sought a disfavored injunction.19 Andthe Tenth Circuit, in finding the case moot,emphasized that there had been no “officialadjudication that Hart or Rumsey violated the oldcanons; quite to the contrary, enforcement of theClauses was enjoined before they were applied againstthe plaintiffs.”20 The primary relief sought by plaintiffswas declaratory relief. While plaintiffs succeeded inpreserving the status quo—no disciplinary action foranswering the questionnaire and for solicitingpublicly-stated support—they did not succeed inobtaining relief on the merits. Plaintiffs did not merelyseek an injunction that allows them to answer anddistribute the questionnaire and solicit publicly-statedsupport in the 2006 primary election. They soughtdeclarations that the judicial canons at issue wereunconstitutional both on their face and as applied tothe questionnaire and petitions, in 2006 and beyond.Under these circumstances, the Court does not findthat the legal relationship between the parties wasmaterially altered by the preliminary injunction.

19 If an injunction is disfavored, it “must be more closelyscrutinized to assure that the exigencies of the case support thegranting of a remedy that is extraordinary even in the normalcourse. Furthermore . . . movants seeking such an injunction arenot entitled to rely on this Circuit’s modified-likelihood-of-success-on-the-merits standard.” O Centro Espirita Beneficiente Uniao DoVegetal v. Ashcroft, 389 F.3d 973, 389 F.3d 973, 975–76 (10th Cir.2004) (per curiam), aff’d, 546 S. Ct. 418 (2006).

20 562 F.3d at 1248.

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The Court finds that plaintiffs are not prevailingparties under 42 U.S.C. § 1988(b) and, therefore, arenot entitled to an award of attorney fees. Whileplaintiffs obtained a preliminary injunction in thismatter, the preliminary injunction applied to judicialcanons that have since been amended, rendering thecase moot. Neither the fact that the canons wereamended, nor the fact that plaintiffs obtained apreliminary injunction suffice to qualify them asprevailing parties under the statute.

IT IS THEREFORE ORDERED BY THECOURT that plaintiffs’ Motion for Attorney Fees (Doc.114) and Second Motion for Attorney Fees (Doc. 116)are denied.

IT IS SO ORDERED.

Dated: November 19, 2009

S/ Julie A. Robinson JULIE A. ROBINSONUNITED STATES DISTRICT JUDGE

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APPENDIX C

ams

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS

Case No. 06-4056-JAR

[Filed July 19, 2006]___________________________________KANSAS JUDICIAL WATCH, et al., )

)Plaintiffs, )

)vs. )

)MIKEL L. STOUT, et al., )

)Defendants. )

___________________________________ )

MEMORANDUM AND ORDER

The Court now considers plaintiffs’ Motion forPreliminary Injunction (Doc. 5) and Motion toConsolidate (Doc. 2).1 The Court held an evidentiary

1 Defendants’ Motion for Certification to Kansas Supreme Court(Doc. 40) is also pending before the Court, and is related to manyof the issues decided in this Order. The deadline for plaintiffs’reply memorandum has not yet expired, so it is not ripe fordecision.

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hearing and heard oral argument on June 28, 2006.After fully considering the written briefs, oralargument, and evidence adduced at the hearing, theCourt grants in part and denies in part the motion forpreliminary injunction, as explained more fully below.The Court denies plaintiffs’ motion to consolidate theinjunction with a trial on the merits.

Factual Background and Plaintiffs’ Claims

I. Background of Judicial Ethics Rules inKansas

The Kansas Supreme Court adopted Rules Relatingto Judicial Conduct on November 13, 1973.2 TheKansas Rules were based on the American BarAssociation’s (“ABA”) Draft Model Code. The originaldraft contained a provision stating that a judicialcandidate, including an incumbent judge,

should not make pledges or promise of conductin office other than the faithful and impartialperformance of the duties of the office; ormisrepresent his identity, qualifications,present position, or other fact; or announce hisviews on disputed legal or political issues,except that he may answer allegations directedagainst his record in office.”3

In 1986, Canon 7B was modified to read that a judicialcandidate, including a judge, should not “make pledges

2 (Def. Ex. 1.)

3 (Def. Ex. 1 at 17, Canon 7B(1)(c).)

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or promise conduct other than the faithful andimpartial performance of the duties of the office.”4 Theremainder of original Canon 7B(1)(c) was excised.

The current Kansas Judicial Code contains fivejudicial canons that apply to judges and in some casesto judicial candidates. Kan. S. Ct. R. 602 establishedthe Commission on Judicial Qualifications (“theCommission”) at the same time the canons wereadopted, “to assist the court in the exercise of itsresponsibility in judicial disciplinary matters.”5 TheCommission is comprised of fourteen members—sixactive or retired judges, four non-lawyers, and fourlawyers appointed by the Kansas Supreme Court.6 TheCommission is divided into two panels; one is headedby the Chair of the Commission and the other isheaded by the Vice-Chair. The Commission is dividedto insure that the panel that conducts theinvestigation is different from the panel that conductsthe hearing, if the case proceeds to the hearing stage.

The disciplinary process begins with the filing of acomplaint with the Commission. The investigatorypanel of the Commission then evaluates the complaintand determines an appropriate course of action thatcan include: dismissal, a letter of caution, informaladvice, or public or private cease and desist orders. Ifa cease and desist order is resisted by the subject of

4 (Def. Ex. 3, Canon 7B(2).)

5 Kan. S. Ct. R. 602(a).

6 R. 602(b). Carol G. Green, Secretary of the Commission, alsotestified at the hearing about the scope of the Commission’scharge, and the makeup and function of the Commission.

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the complaint, the case goes before the hearing panel.Moreover, if the investigation panel concludes thatformal proceedings should be instituted, it must issuea notice of hearing.7

If the hearing panel finds that the charges areproven by clear and convincing evidence, it “shall (1)admonish the judge, (2) issue an order of cease anddesist, or (3) recommend to the Supreme Court thediscipline or compulsory retirement of the judge.”8 Thehearing panel may also recommend temporarysuspension.9 If the hearing panel finds either that thecharges have not been proven or that norecommendation should be made to the SupremeCourt, then the proceedings are terminated.10 Thehearing panel’s findings of fact and conclusions of laware conclusive in the Supreme Court only if noexceptions are filed by the respondent under Rule 623.

In 1984, the Kansas Supreme Court instituted Rule650, which authorized the creation of the JudicialEthics Advisory Panel (“the Panel”). The Panel wascreated to “serve as an advisory committee for judgesseeking opinions concerning the compliance of anintended future course of conduct with the Code ofJudicial Conduct.” The Panel consists of three retiredjudges or justices who answer requests for judicialethics advisory opinions by those subject to the

7 See R. 611.

8 R. 620.

9 R. 621.

10 R. 620.

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Judicial Code. The Panel’s opinions may not addressissues of law nor the ethical propriety of past orpresent conduct. The advisory opinions are not bindingon the Commission or the Kansas Supreme Court,although the Commission will take into account anyadvisory opinion relied upon by a judge or judicialcandidate.11

II. The 2006 Candidate Questionnaire

In the State of Kansas, district judges are selectedby gubernatorial appointment from a nominatingcommission in seventeen districts,12 and throughpartisan election in fourteen districts, includingSedgwick County.13 Plaintiff Kansas Judicial Watch(“KJW”) is a political action committee that is notassociated with any political candidate, party, orcampaign committee. KJW gathers information andpublishes questionnaires about judicial candidates.KJW intends to publish responses to its 2006 JudicialCandidate Questionnaire (“Questionnaire”) of judicialcandidates before the primary election on August 1,2006 and would like to do so in future elections, aswell.

In February 2006, KJW mailed a cover letter and aQuestionnaire to all judicial candidates in Sedgwick

11 R. 650.

12 See Republican Party of Minnesota v. White, 536 U.S. 765,791–92 (O’Connor, J., concurring) (discussing the development ofthis type of judicial selection that became known as the MissouriPlan).

13 See Def. Ex. 11.

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County, Kansas, and to all nine of the Kansas Court ofAppeals judges. The letter explained that theQuestionnaires were due back to KJW by March 13,2006. The Questionnaire presents eight propositionsabout law and policy to judicial candidates andprovides five options for the candidate to mark: Agree,Disagree, Undecided, Decline to Respond, and Refuseto Respond. These eight propositions are:

1. The Kansas Supreme Court violated theSeparation of Powers provision of the StateConstitution in its recent series of rulings inMontoy vs. State, 279 Kan. 817 (2005),mandating specified spending levels for Kansaseducation funding.

2. Under the Kansas Constitution, the KansasState powers to tax its citizens and spend therevenues are the sole prerogative of the Kansasstate legislature and not the Kansas SupremeCourt.

3. Under the Kansas Constitution, a statutedefining marriage as between one man and onewoman is the prerogative of the Kansas StateLegislature, not the Kansas Supreme Court.

4. Marriage should only be between one manand one woman.

5. Under the United States and KansasConstitutions, local community standardsshould be the major determinant of thedefinition of pornography as a punishableoffense.

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6. The Kansas Constitution permits the statelegislature to establish or to deny the deathpenalty as a criminal punishment in the case offirst degree murder, and that such a penalty isnot to be determined, established or denied bythe Kansas Supreme Court.

7. The unborn child is biologically human andalive and that the right to life of human beingsshould be respected at every stage of theirbiological development.

8. There is no provision of our current KansasConstitution that is intended to protect a rightto assisted suicide.

The “Decline to Respond” option is accompanied by anasterisk, which reads:

This response indicates that I would answerthis question, but believe that I am or may beprohibited from doing so by Kansas Canon ofJudicial Conduct 5A(3)(i) and (ii), which forbidsjudicial candidates from making “pledges orpromises of conduct in office other than thefaithful and impartial performance of the dutiesof the office” or “statements that commit orappear to commit the candidate with respect tocases, controversies or issues that are likely tocome before the court.” This response alsoindicates that I would answer this question, butbelieve that, if I did so, then I will or may berequired to recuse myself as a judge in anyproceeding concerning this answer on account ofKansas Canon 3E(1), which requires a judge orjudicial candidate to recuse him or herself when

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“the judge’s impartiality might reasonably bequestioned . . . .”

KJW alleges in its Complaint that it received sevenresponses from judicial candidates and that all but oneof these candidates marked “Decline to Respond” on allof the eight statements in the Questionnaire. PlaintiffRobb Rumsey, a 2006 district court judicial candidatein Sedgwick County, marked “Decline to Respond” onall statements in the Questionnaire. Sedgwick CountyDistrict Judge Anthony Powell returned theQuestionnaire, marking “Decline to Respond” on eachstatement and also attached a cover letter. In thatcover letter, Judge Powell states:

Please note that I have declined to respond toevery question due to the fact that it is my beliefthat I am or may be prohibited from doing so bythe Kansas Canons of Judicial Conduct.Specifically, Canon 5A(3) forbids judicialcandidates from making pledges or promises ofconduct in office other than the faithful andimpartial performance of their duties, and alsoforbids statements that commit or appear tocommit the candidate with respect to cases,controversies or issues that are likely to comebefore the court.

In a March 10, 2006 letter, KJW asked both theCommission and the Panel whether judicial candidatescould respond to the Questionnaire without fear ofdiscipline. Carol G. Green, Secretary of theCommission, responded on March 15, 2006, statingthat the Commission does not render advisoryopinions; rather, advisory opinions sought by judges“concerning the compliance of an intended, future

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course of conduct with the Code of Judicial Conduct”are the role of the Panel. In a March 22, 2006 letter,Carol G. Green, in her capacity as Clerk of theAppellate Courts of Kansas, advised that the Panelcould not answer KJW’s question because requestsmay only be made by those subject to the Code ofJudicial Conduct.

Plaintiff Rumsey also requested an advisoryopinion from the Panel, asking if he may respond tothe Questionnaire without fear of discipline. The Panelissued Judicial Ethics Opinion JE 139 on April 17,2006. Declining to answer Rumsey’s question, theopinion states:

In effect, the candidate seeks to have us holdthat various provisions of the Code of Judicialconduct, as promulgated by the KansasSupreme Court, are unconstitutional. This wedecline to do. Questions regarding theconstitutionality of the Code of Judicial conductshould be addressed to the courts, not to thispanel. Such action is not within our limitedpower. Rule 650(d), 2005 Kan. Ct. R. Annot.603, which establishes this Panel, states:“Advisory opinions . . . shall not address issuesof law . . . .”

As the Code of Judicial Conduct now stands,it is our opinion that the candidate may notanswer the questionnaire. See Canon 5A(3)(d)(i)and (ii).

Plaintiffs assert claims under 42 U.S.C. section1983 that arise under the First and FourteenthAmendments. Plaintiffs claim that “the pledges and

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promises” and “commit” clauses of Canon5A(3)(d)(i),(ii), are unconstitutionally vague andoverbroad on their face and prohibit and chillplaintiffs’ freedom of speech and association; and theclauses unconstitutionally prohibit and chill plaintiffs’freedom of speech and association as applied to theQuestionnaire. Plaintiffs further claim that theCommission’s enforcement of the clauses as expressedin Advisory Opinions JE 10014 and JE 139unconstitutionally chills and prohibits plaintiffs’freedom of speech and association. With regard toCanon 3E(1)’s Judicial Disqualification Requirement,plaintiffs claim only that the Canon is unconstitutionalas applied to the Questionnaire.

II. Nomination Petitions

In Kansas, a person may qualify as a candidate forthe ballot by either filing nomination petitions or byfiling a declaration of intention accompanied bypayment of a filing fee.15 Plaintiff Charles M. Hart is

14 JE 100 is an August 24, 2000 Advisory Opinion, responding tothe question whether a judge up for retention may respond to aquestionnaire in a local newspaper. The editorial committee of thenewspaper planned to base its decision whether to endorse thejudge on the judge’s responses to those questions. Two of the threemembers of the Panel advised that the judge should not answerthe questionnaire because it is essentially a request for a publicendorsement, in violation of Canon 5C(2). One member of thePanel said that the judge may respond, but should be mindful ofthe Canons of Judicial Conduct, “and particularly Canon 5.”

15 K.S.A. §§ 25-205, 25-206. For a district office, the candidatemust obtain petitions by at least 3% of the total of the currentvoter registration of the party designated in the district. § 25-205(e)(3).

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a district judge in Butler County and is a candidate forre-election in 2008. Judge Hart wishes to personally godoor-to-door to ask voters to sign his nominationpetition, but he will not do so because he fearsdiscipline under the canons. Judge Hart went door-to-door in the last three elections (1996, 2000, and 2004)before the Panel issued Judicial Ethics Opinion JE 117in March 2004. This opinion states that a judicialcandidate may not seek signatures for a nominationpetition because it would constitute “publicly statedsupport,” in violation of Canon 5C(2)’s prohibition of acandidate personally soliciting publicly stated support.

Plaintiffs claim that the “solicitation” clause ofCanon 5C(2) is unconstitutionally vague and overbroadon its face and prohibits and chills plaintiffs’ freedomof speech and association. Plaintiffs further claim thatthe solicitation clause unconstitutionally prohibits andchills plaintiffs’ freedom of speech and association asapplied to the Questionnaire and as applied to theNomination Petitions. And plaintiffs claim that theCommission’s enforcement policy of this clause, asexpressed in Advisory Opinion JE 100,unconstitutionally chills and prohibits plaintiffs’freedom of speech and association; and theCommission’s enforcement policy of this clause asexpressed in JE 117 unconstitutionally chills andprohibits the freedom of speech and association ofJudge Hart.

III. Relief Sought

Plaintiffs seek a declaratory judgment that theseprovisions are unconstitutional on their face, asapplied, and as enforced. Plaintiffs also ask the Courtby way of preliminary and permanent injunction, to

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prohibit defendants from enforcing these judicialcanons and from filing or considering complaints basedon these canons against judicial candidates whorespond to the Questionnaire or solicit signatures fornominating petitions. Plaintiffs also seek costs andattorneys’ fees.

Analysis

I. Threshold Issues

A. Standing

Defendants argue that KJW lacks standing to suebecause it is not subject to the judicial canons, andbecause there is no judicial candidate or judge who iscurrently subject to discipline. Defendants urge theCourt to follow the decision in Pennsylvania FamilyInstitute v. Black,16 and dismiss this case for lack ofstanding. Article III, section 2 of the U.S. Constitutionlimits the jurisdiction of federal courts to actual“cases” or “controversies.”17 In order to satisfy theconstitutional standing requirements, KJW mustprove: (1) injury in fact; (2) a causal connectionbetween the injury and the challenged act; and (3) alikelihood that the injury will be redressed by afavorable decision.18 These are not mere pleading

16 No. Civ. 105CV2172, 2005 WL 2931825 (M.D. Penn. Nov. 4,2005)

17 Raines v. Byrd, 521 U.S. 811, 818 (1997).

18 Friends of the Earth, Inc. v. Laidlaw Env. Servs., 528 U.S. 167,180–81 (2000); see also Tandy v. City of Wichita, 380 F.3d 1277,1284 (10th Cir. 2004); Schaffer v. Clinton, 240 F.3d 878, 882 (10th

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requirements, but are an indispensable part ofplaintiffs’ case.19

“[W]hen the plaintiff is not himself the object of thegovernment action or inaction he challenges, standingis not precluded, but it is ordinarily ‘substantiallymore difficult’ to establish.”20 But when a willingspeaker exists, First Amendment protection extendsnot only to the source of a protected communication,but also to the communication itself and to therecipient.21 In Black, where a similarly situated non-profit research and education organization challengedthe judicial canons, the district court found a lack ofstanding because there was no willing speaker.22

There, the court noted: “the instant Plaintiffs, none ofwhom are judicial candidates themselves, fail toprovide any affirmative statements by candidates thatwould indicate that any of the candidates are willingspeakers.”23 As a result, the plaintiffs in Black wereunable to establish that any of the candidates wouldhave answered the questionnaire in that case but forthe threat of discipline under the judicial canons.

Cir. 2001) (citations omitted).

19 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

20 Id. at 562.

21 Va. State Bd. of Pharm. v. Virginia, 425 U.S. 748, 756–57(1976).

22 Black, 2005 WL 2931825, at *5–6.

23 Id. at *6; see also Initiative & Referendum Inst. v. Walker, 450F.3d 1082, 1089 (10th Cir. 2006).

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In this case, however, one plaintiff is a 2006 judicialcandidate and one plaintiff is a judge who anticipatesa 2008 candidacy. Additionally, plaintiff Rumsey andJudge Anthony Powell submitted letters with theirQuestionnaires to KJW, explicitly stating that theywould respond but for the belief that they could beprohibited from doing so under the canons. Judge Harthas collected nomination petitions door-to-door in thepast, but fears doing so now because of the Panel’sadvisory opinion that this would amount to solicitationof public support. Because there are clearly willingspeakers in this case, the decision in Black isinapposite. Further, standing for non-candidates hasbeen found proper in other cases where similar willingspeakers were identified.24 The Court finds that theFirst Amendment protection afforded to plaintiffsRumsey and Hart is extended to KJW as a recipient ofprotected communications.

B. Ripeness

Like standing, ripeness is a justiciability doctrine“designed to prevent the courts, through avoidance ofpremature adjudication, from entangling themselvesin abstract disagreements.”25 The issue is related to

24 See North Dakota Fam. Alliance, Inc. v. Bader, 361 F. Supp. 2d1021 (D.N.D. 2005); Family Trust Foundation of Ky. v. Wolnitzek,345 F. Supp. 2d 672 (E.D. Ky 2004), stay denied pending appeal,388 F.3d 224 (6th Cir. 2004); cf. Alaska Right to Life PoliticalAction Comm. v. Feldman, 380 F. Supp. 2d 1080 (D. Ala. 2005)(conclusory opinion stating that plaintiffs had establishedstanding with no explanation).

25 Nat’l Park Hospitality Ass’n v. Dept. of Interior, 538 U.S. 803,807 (2003).

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standing because “if a threatened injury is sufficiently‘imminent’ to establish standing, the constitutionalrequirements of the ripeness doctrine will besatisfied.”26 Ripeness generally requires the court toevaluate the fitness of the issue for judicial resolutionand the hardship to the parties of withholding judicialconsideration.27

The customary ripeness analysis is somewhatrelaxed when there is a facial challenge under theFirst Amendment.28 In such a situation, “reasonablepredictability of enforcement or threats ofenforcement, without more, have sometimes beenenough to ripen a claim.”29 The Tenth Circuit hasexplained that the ripeness framework is relaxed inthe First Amendment context because of the chillingeffect that burdens on constitutionally protectedspeech could cause.30 Because this case includes afacial challenge based on the First Amendment, theCourt employs the following flexible inquiry in thecontext of a facial challenge to the judicial canons: (1)hardship to the parties by withholding review; (2) thechilling effect the challenged law may have on First

26 ACLU v. Johnson, 194 F.3d 1149, 1165 (10th Cir. 1999) (quotingNat’l Treasury Employees Union v. United States, 101 F.3d 1423,1428 (D.C. Cir. 1996)).

27 Nat’l Park Hospitality, 538 U.S. at 808.

28 Johnson, 194 F.3d at 1165.

29 Id. (quoting New Mexicans for Bill Richardson v. Gonzales, 64F.3d 1495, 1499 (10th Cir. 1995) (internal quotation omitted)).

30 Gonzales, 64 F.3d at 1500.

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Amendment liberties; and (3) fitness of the controversyfor judicial review.31

The Court finds that withholding judicial resolutionof these matters could cause a hardship to the partiesbecause the challenged canons create a “direct andimmediate dilemma for the parties.”32 The record isclear that the plaintiffs here face a dilemma betweenspeaking and violating a judicial canon, and notspeaking and losing a First Amendment liberty. Theletters and completed Questionnaires show that bothplaintiffs Rumsey and Hart face a dilemma betweenexercising their First Amendment rights andcomplying with the judicial canons. As discussed underthe standing discussion, this dilemma extends to KJWas the recipient of the information. Additionally, it isnot necessary that the plaintiffs actually be disciplinedin order to be entitled to challenge the canons.33 Infact, “‘[t]he principle that one does not have to awaitthe consummation of threatened injury to obtainpreventive relief,’ ‘is particularly true in the electioncontext, where we [the Supreme Court] often haveallowed preenforcement challenges to restrictions on

31 Id. (citing Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir.1990)).

32 Id. (quotations omitted).

33 Id. (quoting Babbitt v. United Farm Workers Nat’l Union, 442U.S. 289, 298 (1979).

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speech.’”34 Still, there must be some credible threat ofprosecution.35

The Court finds that plaintiffs’ fears of disciplineunder the canons are reasonable. Although there is noevidence in the record that discipline for violating thecanons at issue is imminent, the advisory opinions inKansas suggest that plaintiffs Rumsey and Hart couldrisk discipline by answering the Questionnaires orpersonally soliciting nomination petitions. The Courtfinds that this is sufficient to establish a crediblethreat of prosecution to satisfy the ripenessrequirement.

The second ripeness prong requires the Court toevaluate the chilling effect of the law at issue. “It isgenerally accepted that the arguable vagueness of astatute greatly militates in favor of finding anotherwise premature controversy to be ripe.”36 Here,plaintiffs challenge on vagueness grounds, all of thecanons at issue. Plaintiffs should not be expected topursue their desired forms of speech “at their peril.”

Finally, the Court finds that the issues presentedare fit for review. To make this determination, theCourt must “focus on whether the challenged lawturns upon strictly legal issues or requires facts that

34 Id. at 1501 (quoting Babbitt, 442 U.S. at 298; Renne v. Gary, 501U.S. 312, 332 (1991) (White, J., dissenting)) (further internalquotations omitted).

35 Doe v. Bolton, 410 U.S. 179, 188 (1973).

36 Gonzales, 64 F.3d at 1503.

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may not yet be sufficiently developed.”37 Although theas-applied challenges to these canons involveapplication of the canons to specific factual scenarios,plaintiffs also make facial challenges to the canons,which are strictly legal questions.38 The Courtconcludes that the case is ripe for review.

C. Abstention

Defendants further argue that the Court shouldabstain from deciding this case under the abstentiondoctrine announced in Colorado River WaterConservation District v. United States.39 Defendantsmaintain that under Colorado River, abstention isproper where a case presents a federal constitutionalissue which could be mooted or presented in a differentposture by a determination of state law. Defendantsargue that Kansas has a strong interest in regulatingthe conduct of attorneys and judges whom it licensesto practice law.40 Also, defendants argue that the casecould be presented in a different posture by adetermination of state law. In other words, defendantsadvocate waiting for the state courts to construe thecanons at issue after a candidate or judge actually is

37 Id. at 1504.

38 Id.

39 424 U.S. 800, 814 (1976).

40 Plaintiffs have asked the Court to certify a question concerningthe pledges and promises and commit clause to the KansasSupreme Court, asking if it is to be construed in the same fashionas the announce clause in White. The Court declines to rule onthat motion at this time since it is not fully briefed.

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charged with a violation. Abstention under ColoradoRiver requires a parallel state proceeding on the sameissues with the same parties.41 Because there is nostate court proceeding pending on this matter, theCourt finds this abstention doctrine inapplicable.

Nevertheless, in Colorado River the Supreme Courtstated that one form of abstention is appropriate “incases presenting a federal constitutional issue whichmight be mooted or presented in a different posture bya state court determination of pertinent state law.”42

This doctrine is commonly referred to as Pullmanabstention.43 The Court should abstain under Pullmanwhen three conditions are met: (1) an uncertain issueof state law underlies the federal constitutional claim;(2) the state issues are amenable to interpretation andsuch interpretation obviates the need for orsubstantially narrows the scope of the constitutionalclaim; and (3) an incorrect decision of state law by thedistrict court would hinder important state lawpolicies.44 “Abstention is a narrow exception to the

41 United States v. City of Las Cruces, 289 F.3d 1170, 1182 (10thCir. 2002) (explaining that the Circuit requires a threshold findingof parallel state court proceedings to engage in Colorado Riverabstention).

42 Colorado River Water Conservation Dist. v. United States, 424U.S. 800, 813-14 (1976).

43 See R.R. Comm’n v. Pullman Co., 312 U.S. 496 (1941).Defendants acknowledged during oral argument that they seekabstention under Pullman rather than Colorado River.

44 Lehman v. City of Louisville, 967 F.2d 1474, 1478 (10th Cir.1992) (citing Vinyard v. King , 655 F.2d 1016, 1018 (10th Cir.1981)).

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duty of a district court to adjudicate a controversyproperly before it, and is used only in exceptionalcircumstances.”45

Although a state court adjudication of the canons inthis case might present the constitutional questions ina different posture, the Court rejects defendants’request for abstention. Although the case involvesstate judicial canons, the outcome of this litigationturns on an interpretation of federal constitutionallaw. Because plaintiffs are exercising their right tobring a claim under 42 U.S.C. section 1983, and thedelay from abstaining could perpetuate the allegedchilling effect on their First Amendment rights, theCourt does not find Pullman abstention appropriate inthis case.46

II. Preliminary Injunction Standard

To obtain a preliminary injunction, the movingparty must show a clear and unequivocal right torelief.47 The moving party must establish the followingelements to obtain relief: (1) a substantial likelihood ofsuccess on the merits; (2) a showing of irreparableinjury unless the injunction issues; (3) proof that the

45 S&S Pawn Shop Inc. v. City of Del City, 947 F.2d 432, 442 (10thCir. 1991) (citing County of Allegheny v. Frank Mashuda Co., 360U.S. 185, 188–89 (1959)).

46 See Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1576 (10th Cir.1995); Kansas for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 934 (D.Kan. 1999).

47 SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10thCir. 1991).

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threatened injury to the movant outweighs whateverdamage the proposed injunction may cause theopposing party; and (4) a showing that the injunction,if issued, would not be adverse to the public interest.48

In cases where the movant has prevailed on the otherfactors, the Tenth Circuit generally uses a liberalstandard for “probability of success on the merits,” sothe moving party need only raise “questions going tothe merits so serious, substantial, difficult anddoubtful as to make them a fair ground for litigationand thus for more deliberate investigation.”49

There are three types of injunctions that aredisfavored in the Tenth Circuit, and thus, aresubjected to a heightened burden. Those injunctionsare: (1) preliminary injunctions that alter the statusquo; (2) mandatory preliminary injunctions; and (3)preliminary injunctions that afford the movant all therelief that it could recover at the conclusion of a fulltrial on the merits.50 If an injunction falls into one ofthese categories, it “must be more closely scrutinizedto assure that the exigencies of the case support thegranting of a remedy that is extraordinary even in thenormal course. Furthermore . . . movants seeking suchan injunction are not entitled to rely on this Circuit’s

48 E.g., id.; Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.2005).

49 Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980) (internalquotations omitted).

50 O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389F.3d 973, 389 F.3d 973, 975 (10th Cir. 2004) (per curiam), aff’d,126 S. Ct. 1211 (2006); see also Schrier, 427 F.3d at 1258–59.

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modified-likelihood-of-success-on-the-meritsstandard.”51

Defendants argue that the injunction at issue ismandatory. The Circuit has described the differencebetween a mandatory and prohibitory injunction asfollows:

[t]he distinction between mandatory andprohibitory injunctions . . . cannot be drawnsimply by reference to whether or not the statusquo is to be maintained or upset. As suggestedby the terminology used to describe them, theseequitable cousins have been differentiated byexamining whether the non-moving party isbeing ordered to perform an act, or refrain fromperforming. In many instances, this distinctionis more semantical than substantive. For toorder a party to refrain from performing a givenact is to limit his ability to perform anyalternative act; similarly, an order to perform ina particular manner may be tantamount to aproscription against performing in any other.52

And, “[w]e characterize an injunction as mandatory ifthe requested relief ‘affirmatively require[s] thenonmovant to act in a particular way, and as a result. . . place[s] the issuing court in a position where it

51 O Centro, 389 F.3d at 975–76.

52 Id. at 1006 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015,1025-26 (2d Cir.1985), overruled on other grounds by O’Lone v.Estate of Shabazz, 482 U.S. 342, 349 n.2 (1987)).

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may have to provide ongoing supervision to assure thenonmovant is abiding by the injunction.’”53

The Court disagrees that the requested injunctionis a mandatory, or otherwise disfavored, injunction.Plaintiffs ask that the Court enjoin “Defendants, theiragents, successors from enforcing Kansas JudicialCanon 5A(3)(i) and (ii), Kansas Judicial Canon 3E(1),and Kansas Judicial Canon 5C(2), and from filing orconsidering complaints based on these Canons againstjudicial candidates who respond to 2006 CandidateQuestionnaire or solicit signatures for nominatingpetitions and all others similarly situated.”54 TheCourt finds that the requested injunction neither seeksto change the status quo, nor is mandatory in nature.Defendants admit that there is no current disciplinaryproceeding pending against a judicial candidate orjudge under the challenged canons. Therefore, there isno indication that the requested injunction would alterthe status quo. The injunction does not seek, asdefendants suggest, to change the Model Code.Instead, it asks that the status quo be preserved byprohibiting potentially unconstitutional enforcementof the canons until the case can be decided on themerits. Finally, because plaintiffs seek declaratoryrelief, the injunction would not provide all of the reliefsought at the conclusion of a trial on the merits.

Nevertheless, this Court rejects plaintiffs’argument that the modified likelihood-of-success-on-

53 Schrier, 427 F.3d at 1261 (quoting O Centro, 389 F.3d at 979)(internal quotation omitted).

54 (Doc. 1 at 27.)

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the-merits test should apply since they do not seek adisfavored injunction. The liberal definition of this testwould lessen the need for plaintiffs to show asubstantial likelihood of success when the otherrequirements for a preliminary injunction aresatisfied. But the Circuit has held that “where . . . apreliminary injunction seeks to stay governmentalaction taken in the public interest pursuant to astatutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be applied.”55

Therefore the Court applies the four-prong preliminaryinjunction scheme, but applies neither the morerigorous standard applicable to disfavored injunctions,nor the more liberal modified scheme.

III. Substantial Likelihood of Success onthe Merits

A. First Amendment Legal Standards

1. Republican Party of Minnesota v. White

Plaintiffs argue that certain judicial canons shouldbe declared unconstitutional primarily underRepublican Party of Minnesota v. White.56 Minnesotaprovides for the selection of all state judges by popularelection. In White, the Supreme Court consideredMinnesota Code of Judicial Conduct, Canon5(A)(3)(d)(i), the “announce clause,” which prohibitedjudicial candidates and incumbent judges from

55 Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir.2006).

56 536 U.S. 769 (2002).

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announcing his or her “views on disputed legal orpolitical issues.”

Under Minnesota’s announce clause, judicialcandidates, including incumbent judges, were subjectto punishment if they violated the Canon. One of thepetitioners, Gregory Wersal, ran for associate judge ofthe Minnesota Supreme Court in 1996. Wersaldistributed literature during his campaign, criticizingseveral decisions by the Minnesota Supreme Court onissues such as abortion, crime, and welfare. Adisciplinary complaint was filed against Wersal,charging that the material violated the announceclause; the complaint was dismissed. Nonetheless,Wersal withdrew from the election, fearing ethicalcomplaints could hurt his ability to practice law. In1998, Wersal ran again for the same position, but thistime sought an advisory opinion from the LawyersBoard about whether it intended to enforce theannounce clause. The Lawyers Board responded that,although it had significant doubts about theconstitutionality of the clause, it would not answer hisquestions because he had not provided them withconcrete examples of the announcements he wished tomake. Other plaintiffs in the suit, including theMinnesota Republican Party, alleged that theannounce clause meant that they were unable to learnthe candidate’s views and support or oppose thecandidacy accordingly.57

In the majority opinion, the Court described thedistinction between the announce clause and the“pledges or promises clause,” which was not before it:

57 Id. at 768–70.

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The prohibition extends to the candidate’s merestatement of his current position, even if hedoes not bind himself to maintain that positionafter election. All the parties agree this is thecase, because the Minnesota Code contains a so-called “pledges or promises” clause, whichseparately prohibits judicial candidates frommaking “pledges or promises of conduct in officeother than the faithful and impartialperformance of the duties of the office,” ibid.—aprohibition that is not challenged here and onwhich we express no view.58

The Eighth Circuit Court of Appeals applied strictscrutiny and the parties agreed that strict scrutinyapplied.59 Strict scrutiny requires the law be narrowlytailored to further a compelling government interest.60

The Supreme Court identified two compelling stateinterests argued by respondents: (1) preserving theimpartiality of the state judiciary, and (2) preservingthe appearance of the impartiality of the statejudiciary.61 The Court found that there were threealternate meanings of “impartiality,” and proceeded toapply the strict scrutiny test for each. The firstinterpretation is a lack of bias for or against eitherparty to the proceeding. The Court found that theannounce clause was not narrowly tailored to serve

58 Id. at 770.

59 Id. at 774–75.

60 Id.

61 Id. at 775.

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this type of impartiality.62 The Court found that theannounce clause did not restrict speech for or againstparties, but rather, for or against particular issues.63

Any party taking a position contrary to that of anannounced position of the judge would lose—therefore,the judge would be applying the law (as they see it)evenhandedly.64

The second interpretation of impartiality wasdescribed as lack of bias on issues, which concernsguaranteeing litigants an equal chance to persuade thecourt on the legal points in their case.65 The Courtfound that this is not a compelling state interestbecause “it is virtually impossible to find a judge whodoes not have preconceptions about the law.”66 In fact,the Court indicated that the avoidance of judicialpreconceptions on legal issues is not only not possible,but not desirable, quoting Justice Rehnquist’sobservation that “‘[p]roof that a Justice’s mind at thetime he joined the Court was a complete tabula rasa inthe area of constitutional adjudication would beevidence of lack of qualification, not lack of bias.’”67

62 Id. at 776.

63 Id. at 777.

64 Id.

65 Id.

66 Id.

67 Id. at 778 (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972)).

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The Court described the third interpretation ofimpartiality as “open-mindedness.” This meaningrequires a judge to “be willing to consider views thatoppose his preconceptions, and remain open topersuasion, when the issues arise in a pending case.”68

While not guaranteeing each litigant an equal chanceto win legal points, it assures each some chance ofdoing so. The Court concluded that although this typeof impartiality may be desirable, the MinnesotaSupreme Court did not adopt the announce clause forthis purpose.69 The clause is “woefully underinclusiveas to render belief in that purpose a challenge to thecredulous.”70 Justice Stevens’ dissent posits thatstatements made in a campaign are a special threat toopen-mindedness because the candidate, when electedjudge, will have a particular reluctance to contradictthem. The majority view was that this threat might betrue for campaign promises, but not for nonpromissorystatements, while noting that “one would be naive notto recognize that campaign promises are—by longdemocratic tradition—the least binding form of humancommitment.”71

The Court held that the announce clause inMinnesota did not pass strict scrutiny. The Courtstated that there is “obvious tension” between thestate’s constitutional provision that judges be elected

68 Id.

69 Id.

70 Id. at 780.

71 Id.

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and the announce clause.72 Justice Scalia pointed outthat “the ABA, which originated the announce clause,has been an opponent of judicial elections. . . . [B]utthe First Amendment does not permit it to achieve itsgoal by leaving the principle of elections in place whilepreventing candidates from discussing what theelections are about.”73

2. Overbreadth and Vagueness Doctrines

Overbreadth and vagueness are viewed by theSupreme Court as “logically related and similardoctrines.”74 These doctrines may even overlap when“the challenged statute is so unclear in its scope thatofficials enforce it in an overbroad manner.”75 Facialchallenges for vagueness and overbreadth involve apreliminary inquiry: the plaintiffs must show that thepotential chilling effect on protected expression is“both real and substantial.”76

In the context of overbreadth, the chilling effectmust be real and substantial, judged in relation to thelaw’s plainly legitimate sweep.77 This inquiry involves

72 Id. at 787.

73 Id. at 788.

74 Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005) (quotingKolender v. Lawson, 461 U.S. 352, 358 n.8 (1983)).

75 Id. at 828.

76 Id. (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216(1975)).

77 Id.

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an analysis of the scope of the law. The court’s firsttask is to determine “whether the enactment reachesa substantial amount of constitutionally protectedconduct.”78 For the doctrine of “[o]verbreadth is ‘strongmedicine,’ and courts ‘employ[] it with hesitation, andthen, only as a last resort.’”79 A showing of overbreadth“suffices to invalidate all enforcement of that law,‘until and unless a limiting construction or partialinvalidation so narrows it as to remove the seemingthreat or deterrence to constitutionally protectedexpression.’”80 Because an overbroad law may “chill”protected speech, suspension of all enforcement is theonly means of reducing “these social costs caused bythe withholding of protected speech.”81

A law may be challenged as vague after this initialinquiry, when the law is “‘not readily subject to anarrowing construction by the state courts.’”82

However, “speculation and ‘hypertechnical theories asto what the statute covers’ cannot create vagueness,especially when the statute is ‘surely valid in the vast

78 Id. (quoting Hoffman Estates v. Flipside, Hoffman Estates, 455U.S. 489, 494 (1982)).

79 Faustin v. City and County of Denver, Colo., 423 F.3d 1192, 1199(10th Cir. 2005) (quoting West v. Derby Unified Sch. Dist. , 206F.3d 1358, 1367 (10th Cir. 2000)).

80 Virginia v. Hicks, 539 U.S. 113, 118–19 (2003).

81 Id. at 119.

82 Id. at 1202 (quoting Young v. Am. Mini Theatres, Inc., 427 U.S.50, 60–61 (1976)).

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majority of its intended applications.’”83 Also, when aplaintiff knows that “the action in question violatedthe restriction, we have said that this ‘state of mind isinconsistent with any claim that the policy did not give. . . fair warning. . . .’ In such a case, we will notconclude that the policy is unconstitutionally vague.”84

B. The Pledges and Promises Clause and theCommit Clause

Plaintiffs assert, via section 1983 and theFourteenth Amendment, a facial and as-applied FirstAmendment challenge to Canon 5A(3)(d)(i) and (ii) ofthe Kansas Supreme Court’s Rules of JudicialConduct. Plaintiffs assert that the clauses do notsurvive strict scrutiny, are overbroad, and vague.Kansas does not currently have an announce clause,having abolished it in 1984, but instead has the“pledges and promises clause” and “commit” clause:

(3) A candidate for a judicial office:(d) shall not:

(i) make pledges or promises of conductin office other than the faithful andimpartial performance of the duties ofthe office;(ii) make statements that commit orappear to commit the candidate withrespect to cases, controversies or issuesthat are likely to come before the court.85

83 Id. (quoting Hill v. Colorado, 530 U.S. 703, 733 (2002)).

84 Id. (quoting, West, 206 F.3d at 1368).

85 Kan. S. Ct. R. 601A, Canon 5A(3)(d)(i), (ii).

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Federal lawsuits challenging the pledges andpromises clause and the commit clause were filed inSeptember 2004 in Alaska, Indiana, Kentucky, andNorth Dakota.86 The preliminary injunction wasdenied in the Indiana case and a discovery anddispositive motion deadline was set for September 6,2005.87 The Court is unaware of any other progresssince that time in that case. The district courts inAlaska and North Dakota granted summary judgmentto the plaintiffs after finding that the pledges andpromises and commit clauses in those states violatedthe First Amendment under the holding in White.88

And, the Kentucky district court granted a motion forpreliminary injunction, finding a likelihood thatplaintiffs would succeed on the merits of their FirstAmendment challenges to the pledges and promisesand commit clauses.89 A motion to stay the injunctionwas thereafter denied by the Sixth Circuit.90

86 See North Dakota Fam. Alliance, Inc. v. Bader, 361 F. Supp. 2d1021, 1030 n.1 (D.N.D. 2005).

87 (Doc. 28, Attach.)

88 Bader, 361 F. Supp. 2d at 1021–45; Alaska Right to Life PoliticalAction Comm. v. Feldman, 380 F. Supp. 2d 1080–84 (D. Ala.2005).

89 Family Trust Foundation of Ky, Inc. v. Wolnitzek, 345 F. Supp.2d 672, 695 (E.D. Ky. 2004).

90 388 F.3d 224 (6th Cir. 2004). In 2005, the Kentucky SupremeCourt amended its Canon 5(B)(1)(c) to read:

A judge or candidate for election to judicial office shallnot intentionally or recklessly make a statement that areasonable person would perceive as committing the judgeor candidate to rule a certain way on a case, controversy,or issue that is likely to come before the occur; and shall

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There have been two state court decisions on theconstitutionality of these clauses since White. The NewYork Court of Appeals upheld New York’s pledges andpromises clause;91 and the Florida Supreme Courtupheld Florida’s pledges and promises and commitsclauses on First Amendment grounds.92 Both of thosedecisions were rendered in appeals from disciplinaryactions filed against judicial candidates under thejudicial canons. Understandably, both parties spendmuch of their briefs attempting to analogize anddistinguish this case from the facts and contexts ofthese other federal and state cases.

1. Facial Analysis

Plaintiffs allege that the pledges and promisesclause and the commit clause violate the FirstAmendment because their literal meaning abridges theright to free speech. This challenge is a “heavy burden”and “‘is, manifestly strong medicine’ that ‘has beenemployed by the Court sparingly and only as a lastresort.’”93 The plaintiffs “must demonstrate asubstantial risk that application of the provision willlead to the suppression of speech.”94 Plaintiffs argue

not misrepresent a candidate’s identity, qualifications,present position, or other facts.

Ky. S. Ct. R. 4.300 (amended Sept. 15, 2005).

91 In re Watson, 794 N.E.2d 219 (N.Y. 2003).

92 In re Kinsey, 842 So.2d 77 (Fla. 2003).

93 Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998)(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).

94 Id.

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that the clauses are facially unconstitutional becausethey do not survive strict scrutiny, are overbroad, andvague.

Strict Scrutiny

As a threshold matter, defendants argue that thisCourt is not bound to apply strict scrutiny under theholding in White, explaining that the Supreme Courtonly applied strict scrutiny because the partiesstipulated that it was the appropriate test. Yetdefendants fail to identify the appropriate alternativetest or justify why it is more applicable than strictscrutiny. This Court concludes that it must apply strictscrutiny, for the speech restriction at issue here iscontent based—the type of speech regulated is definedby the fact that it is intended “to influence the votersin an elections.”95 “[T]he ability of the citizenry tomake informed choices among candidates for office isessential . . . . When a law burdens core politicalspeech, we apply ‘exacting scrutiny.’”96 Under strictscrutiny, the Court may uphold the restriction only ifit is narrowly tailored to serve a compelling stateinterest.97

95 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995);see also Republican Party of Minn. v. White, 536 U.S. 769, 774(2002) (recognizing that speech about the qualifications ofcandidates for public office is within a category of speech “at thecore of our First Amendment freedoms”).

96 McIntyre, 514 U.S. at 346–48.

97 White, 536 U.S. at 774–75.

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Defendants assert that the pledges and promisesand commit clauses serve the compelling state interestin judicial impartiality and the appearance of judicialimpartiality by assuring open-mindedness in thejudiciary. In White, the Court identified three possibleinterpretations of the meaning of “impartiality.” Theonly one of these three interpretations that the Courtexplicitly found compelling is impartiality defined aslack of bias against either party to the proceeding.98

Plaintiffs correctly argue that the Supreme Courtstopped short of declaring open-mindedness acompelling state interest. Instead, the Court statedthat “we need not pursue that inquiry, since we do notbelieve the Minnesota Supreme Court adopted theannounce clause for that purpose.”99 However, thisCourt follows the courts that have construed White,and evaluated open-mindedness as a compelling stateinterest.100

Unlike the announce clause, the pledges andpromises and commit clauses do further the interest inopen-mindedness by the judiciary. In White, the Courtrejected an open-mindedness justification because itfound that this goal contradicted a different canon thatencouraged judges to express legal views though

98 Id. at 775–76.

99 Id. at 778.

100 North Dakota Family Alliance, Inc., 361 F. Supp. 2d 1021, 1040(D.N.D. 2005); Family Trust Foundation of Ky, Inc. v. Wolnitzek,345 F. Supp. 2d 672, 695 (E.D. Ky. 2004), emergency stay denied,388 F.3d 224 (6th Cir. 2004); In re Watson, 794 N.E.2d 219 (N.Y.2003); see also Model Code of Judicial Conduct, Canon 5.01, cmt.14 (Proposed Final Draft Dec. 2005).

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speeches and books101 and because it found that theannounce clause was underinclusive since it did notregulate speech prior to and after a judicialcampaign.102 Unlike announcements, there is no canonthat encourages judicial candidates to promise orpledge or commit to rule a particular way in a case orcontroversy or issue likely to come before the court.103

Also, the underinclusiveness argument is not aspersuasive when applied to these clauses because “theonly time a promise to rule a certain way has anymeaning is in the context of a judicial campaign.”104 Bycomparison, an announcement carries the samemeaning whether made before, during, or after anelection. The Court finds that the pledges andpromises and commit clauses are narrowly tailored toserve the state interest of impartiality, meaning open-mindedness.

Defendants do not argue that the pledges andpromises or commit clauses further impartiality in thesense of lack of bias toward parties, but the Court willnevertheless proceed to analyze this compelling stateinterest. The Court finds that like the announceclause, the pledges and promises and commit clausesin this case are not narrowly tailored to serve this

101 See Minn. Code of Judicial Conduct, Canon 4(B) (2002).

102 Id. at 779–80.

103 See id. at 777–78; Wolnitzek, 345 F. Supp. 2d at 696.

104 Wolnitzek, 345 F. Supp. 2d at 696. Cf. Model Code of JudicialConduct, Canon 2.11(C) (Proposed Final Draft Dec. 2005)(prohibiting pledges and promises and commitments by sittingjudges).

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compelling state interest. The pledges and promisesclause forbids all pledges and promises of conduct byjudicial candidates, other than “the faithful andimpartial performance of the duties of the office.” Butthis clause does not simply restrict speech for oragainst a particular party. Instead, it prohibits speechthat pledges or promises any specific conduct whenelected.105 Like the announce clause in White, theCourt finds that this clause essentially seeks toregulate impartiality towards issues and not parties.As the Court explained, impartiality regarding legalviews is not a compelling state interest.106

Likewise, the commit clause is not narrowlytailored to further the compelling state interest of lackof bias toward parties. The clause prohibits acandidate from committing or appearing to commitwith respect to cases, controversies, or issues that arelikely to come before the court. The clause is notnarrowly tailored to serve the compelling state interestof avoiding bias, or the appearance of bias, againstparties because it prohibits commitments on any issuelikely to come before the court. The fact that the clauseis limited to issues that are likely to come before thecourt is of no consequence because “[t]here is almost nolegal or political issue that is unlikely to come before

105 The Court acknowledges that the commentary to the Canonstates that the Canon does not prohibit a candidate from makingpledges or promises with respect to improvements in courtadministration, nor does it prohibit a sitting judge from pledgingor promising or committing when privately speaking to otherjudges or court personnel in the course of judicial duties.

106 White, 536 U.S at 777.

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a judge of an American court, state or federal, ofgeneral jurisdiction.”107

The Court finds, with respect to impartialitymeaning bias against parties, that there is littledifference between a judicial candidate announcing hisor her views on legal or political issues and makingpromises or pledges, or committing with respect tocases, controversies, and issues that are likely to comebefore the court. The Court finds that, similar to theannounce clause in White, these clauses are notnecessary to achieve the state’s interest in judicialimpartiality. As will be discussed later in this opinion,the recusal provision in Canon 3E requires a judge torecuse whenever that judge is unable to render a fairdecision, or whenever it appears that the judge isunable to render a fair decision. The recusal provisionoperates without inhibiting protected speech becauseit is narrowly tailored to serve the interest of avoidingbias against parties.

Overbreadth

Although the Court has determined that thepledges and promises and commit clauses are narrowlytailored to further the state’s interest in judicialimpartiality, meaning “open-mindedness,” the Courtmust still evaluate the effect of the clauses on freespeech rights under the overbreadth doctrine. Toestablish overbreadth, plaintiffs must show a real andsubstantial chilling effect on free speech rights, in

107 Id. at 772 (quoting Buckley v. Illinois Judicial Inquiry Bd., 997F.2d 224, 229 (7th Cir. 1993)).

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relation to the Canon’s “plainly legitimate sweep.”108

As discussed under the strict scrutiny analysis, theplainly legitimate sweep of the clauses at issue wouldbe a prohibition of statements to rule a particular wayin a case, controversy, or issue likely to come beforethe court. “A campaign promise to rule a certain wayon a legal issue likely to come before the court is souniquely destructive of open-mindedness andconfidence in the judiciary that recusal might notsatisfactorily protect the state’s interest inmaintaining judicial open-mindedness.”109

In White, the Court distinguished the announceclause by explaining that it covered “much more thanpromising to decide an issue a particular way.”110

Nonetheless, the sweep of the promises and pledgesand commit clauses is not limited to pledges, promisesand commitments to decide an issue a particular way.The pledges and promises clause prohibits all promisesand pledges of conduct in office except for thosepromises of faithful and impartial execution of theduties of the office. Likewise, the commit clauseprohibits any commitment about any issue likely tocome before the court. The Court has alreadyacknowledged the White Court’s finding that the“likely to come before the court” restriction is not trulymuch of a restriction, as almost any non-fanciful issuecould be considered likely to come before a court ofgeneral jurisdiction. The Supreme Court also

108 Faustin v. City & County of Denver, Colo., 423 F.3d 1192 (10thCir. 2005).

109 Wolnitzek, 345 F. Supp. 2d at 702 n.12.

110 White, 536 U.S. at 770.

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commented on the “naive” assumption thatcommitments made during campaigns are in factbinding.111 The Court agrees with the Eastern Districtof Kentucky that the clause does not limit itself toprohibiting commitments to “rule a particular way onan issues [sic] likely to come before the court; rather itsimply limits any commitment about any issue likelyto come before the court.”112 The Kentucky districtcourt illustrated that the legitimate reach of the Canonis much narrower than the illegitimate reach bycomparing examples of each. Its examples of legitimatespeech targeted by the Canon are: “I promise to betough on crime,” or “I promise to uphold the FirstAmendment.” Its narrower example of illegitimatespeech targeted by the Canon is: “I promise to neverinvalidate a search on Fourth Amendment grounds.”113

111 Id. at 780.

112 Wolnitzek, 345 F. Supp. 2d at 697. See Watson and Kinsey forstate court decisions that upheld application of the Canon topledges and promises and commitments in the latter category ofspeech. In re Kinsey, 842 So.2d 77, 88–89 (Fla. 2003) (“While ourjudicial code does not prohibit a candidate from discussing his orher philosophical beliefs, in the campaign literature at issueJudge Kinsey pledged her support and promised favorabletreatment for certain parties and witnesses who would beappearing before her (i.e., police and victims of crime).); In reWatson, 794 N.E.2d 1, 7 (N.Y. 2003) (“The rule precludes onlythose statements of intention that single out a party or class oflitigants for special treatment . . . or convey that the candidatewill behave in a manner inconsistent with the faithful andimpartial performance of judicial duties if elected.”).

113 Wolnitzek, 345 F. Supp. 2d at 697.

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The Court also looks at how the State hasinterpreted these clauses to determine facialvalidity.114 Here, the record reflects that there has onlybeen one instance of a disciplinary proceeding underthe pledges and promises clause in Kansas since itsoriginal adoption and no cases concerning the commitclause. In In re Baker,115 the Commission found aviolation of the pledges and promises clause when ajudicial candidate made a radio speech and televisionadvertisement emphasizing his pledge to be a “full-time judge” and to eliminate court delays.116 Thatjudicial candidate was running against an incumbentjudge whose health problems had resulted in a reducedworkload. The Kansas Supreme Court did not agreewith the Commission’s conclusion that thesestatements violated the pledges and promises clausebecause they were statements that related to thefaithful performance of the duties of judicial office.117

The Kansas Supreme Court stated:

A candidate for nonjudicial office is free toannounce his stand on the issues he must passupon in office, and to pledge his vote on thoseissues; the judicial candidate is forbidden toenter this customary campaign arena. Hence,

114 See Lewis v. New Orleans, 415 U.S. 130, 131–32 (1974).

115 542 P.2d 701 (Kan. 1975).

116 Id. at 704.

117 Id. at 705. The court did, however, find a violation of anotherpart of Canon 7 B(1)(c), which states that a candidate “should not. . . mispresent (sic) his identity, qualifications, present position,or other fact. Id. at 703, 706–07.

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unless the election is to be a pure popularitycontest based on name recognition alone, theonly legitimate area for debate is the relativequalifications of the candidates. In our view thehealth, work habits, experience and ability ofthe candidates are all matters of legitimateconcern to the electorate who must make thechoice.118

Despite the dearth of disciplinary complaintsconcerning the clauses, plaintiffs posit that the Panel’sadvisory opinion, JE 139, signals the State’s intentionconcerning enforcement of the Canon. In KansasAdvisory Opinion JE 139, the Panel answered plaintiffRumsey’s request for advice on whether he couldanswer the Questionnaire at issue in this case. ThePanel rejected the opportunity to rule on theconstitutionality of the clauses, but stated that “[a]sthe Code of Judicial Conduct now stands, it is ouropinion that the candidate may not answer thequestionnaire. See Canon 5A(3)(d)(i) and (ii).”119

Defendants argue that the Panel’s advisoryopinions should not be considered because they are notbinding on the Commission, nor the Kansas SupremeCourt. Although these advisory opinions are notbinding, the Court must consider the chilling effect ofthese advisory opinions on protected speech. Byinterpreting the clauses as prohibiting judicialcandidates and incumbent judges from answering theQuestionnaires, the Panel chills protected speech. The

118 Id.

119 (Doc. 1, ex. J.)

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clauses have been interpreted to operate as a de factoannounce clause. Plaintiffs have met their burden ofshowing a real and substantial threat that the pledgesand promises clause and commit clause chill the freespeech rights of third parties who fear discipline foranswering the Questionnaire, in relation to the plainlylegitimate sweep of the clauses.

Vagueness

Having already determined that the Canon has areal and substantial effect on legitimate expression,the Court must determine whether the pledges andpromises or commit clauses are impermissibly vague.The Supreme Court has explained the characteristicsof vague laws:

Vague laws may trap the innocent by notproviding fair warning. Second, if arbitrary anddiscriminatory enforcement is to be prevented,laws must provide explicit standards for thosewho apply them. A vague law impermissiblydelegates basic policy matters to policemen,judges, and juries for resolution on an ad hocand subjective basis. . . . “Uncertain meaningsinevitably lead citizens to ‘steer far wider of theunlawful zone’ . . . than if the boundaries of theforbidden areas were clearly marked.”120

Plaintiffs spend little time explaining theirvagueness challenge to the pledges and promises

120 Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972)(quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (quotingSpeiser v. Randall, 357 U.S. 514, 526 (1958))) (footnotes omitted).

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clause, failing to explain how the terms “promise” or“pledge” are vague. Instead, plaintiffs focus on the“appear to commit” language in the commit clause,arguing that it is vague because the Panel hasinterpreted it as forbidding statements on disputedlegal and political issues. The Panel has advised thatanswering the Questionnaire would be a violation ofthe Canon, without commenting on itsconstitutionality. The Court has already determinedthat the Canon is enforced in an overbroad manner.Nevertheless, candidates were placed on notice by JE139 that responding to the Questionnaire would be aviolation. Because plaintiffs were aware that theirdesired activities would constitute a violation of theseclauses, the Court declines to hold that they areunconstitutionally vague.

2. As-applied Challenge

None of the statements on the Questionnaire inthis case require the candidate to pledge, promise, orcommit to any position in contravention of the pledgesand promises and commit clauses. These statementsmerely require the candidates to announce their viewson disputed legal and political issues. Prohibitingjudicial candidates from announcing their views ondisputed legal and political issues is in contraventionof the Supreme Court’s holding in United States v.White. Accordingly, the Court finds the pledges andpromises and commit clauses unconstitutional asapplied to the Questionnaire.

C. Recusal Canon

The plaintiffs argue that Canon 3E(1) isunconstitutional as applied to the Questionnaire

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because it chills speech by subjecting judges todiscipline for announcing their views on disputed legaland political issues. The Canon states that a judgemust recuse himself or herself when his or her“impartiality might reasonably be questioned . . . .”The Rule goes on to provide four instances where ajudge’s impartiality might reasonably be questioned:personal bias concerning a party, prior personalinvolvement in a case, economic interest, andinvolvement of the judge or relative of the judge in theproceeding.121 Under this Canon, “the standard iswhether the charge of lack of impartiality is groundedon facts that would create reasonable doubt concerningthe judge’s impartiality in the mind of a reasonableperson with knowledge of all the circumstances.”122

For the same reasons as discussed under theanalysis of the promises and pledges and commitclauses, the Court applies strict scrutiny. The Courtfinds that, unlike the previously considered clauses,the recusal Canon is narrowly tailored to serve thecompelling state interest of judicial impartiality andthe appearance of impartiality. First, it is narrowlytailored to serve the interest of removing bias againstparties. The purpose of the recusal canon is toguarantee to litigants that the judge will apply the lawto them in the same way. When a judge is biased for oragainst a party, or it appears that the judge is biasedfor or against a party, the recusal statute requires thejudge to remove himself or herself from the case. Therecusal Canon is also narrowly tailored to serve the

121 Kan. S. Ct. R. 601A, Canon 3E(1).

122 State v. Logan, 689 P.2d 778, 784 (Kan. 1984).

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compelling government interest in open-mindedness.The recusal Canon requires a judge to recuse if he orshe is unable to maintain an open mind about theresults of a particular case until all of the evidence andarguments have been presented.123 The standard ofimpartiality required to warrant recusal has been wellestablished in Kansas. The Court finds that plaintiffsare not substantially likely to succeed on the merits oftheir as-applied challenge to the recusal Canon.

D. Solicitation Clause

Canon 5(C)(2) states:

A candidate* shall not personally solicitor accept campaign contributions or solicitpublicly stated support nor shall a candidateserve as his or her own campaign treasurer.A candidate subject to public election* may,however, establish committees of responsiblepersons to solicit and accept reasonablecampaign contributions, to manage theexpenditure of funds for the candidate’scampaign and to obtain public statements ofsupport for his or her candidacy. Such

123 Accord North Dakota Fam. Alliance, Inc. v. Bader, 361 F. Supp.2d 1021, 1043–44 (D.N.D. 2005); Alaska Right to Life Pol. ActionComm. v. Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005);Family Trust Foundation of Ky, Inc. v. Wolnitzek, 345 F. Supp. 2d672, 696 (E.D. Ky. 2004), emergency stay denied, 388 F.3d 224 (6thCir. 2004). Plaintiffs argue that these cases were all based onfacial challenges to the recusal canons. The Court disagrees.These courts specifically recited plaintiffs’ challenge in that caseas including as-applied challenges to the surveys at issue.Wolnitzek, 345 F. Supp. at 705; Bader, 361 F. Supp. 2d at 1043.

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committees may solicit and acceptreasonable campaign contributions andpublic support from lawyers. A candidate’scommittees may solicit contributions andpublic support . . . no earlier than one yearbefore an elections and no later than 90 daysafter the last elections in which thecandidate participates during the electionyear.124

Plaintiffs claim that the solicitation clause does notsurvive a strict scrutiny analysis, is vague andoverbroad and that it is unconstitutional as applied toboth the Questionnaire and nomination petitions.

The Eighth and Eleventh Circuits have both struckdown similar solicitation clauses as unconstitutionalprohibitions on free speech under White.125 The EighthCircuit addressed the solicitation clause in White onremand from the Supreme Court. There, the plaintiffwished to personally sign fundraising letters toconstituents. The Eighth Circuit found the solicitationclause was not narrowly tailored to serve thecompelling state interest of judicial independence orimpartiality under either interpretation provided bythe Supreme Court. The court found that it was notnarrowly tailored to serve the interest in lack of bias

124 Kan. S. Ct. R. 601A, Canon 5C(2); (Ex. 7). The asterisksindicates terms that are defined separately in the Code of JudicialConduct.

125 Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir.2005) (en banc), cert. denied, 125 S. Ct. 1165 (2006), opinion onremand after grant of rehearing.

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against a party because the ability of a candidate tosign a contribution letter would not

magically endow him or her with the power todivine, first, to whom that letter was sent, andsecond, whether that person contributed to thecampaign or balked at the request. . . . [A]candidate would be even less able to trace thesource of funds contributed in response to arequest transmitted to large assemblies ofvoters.126

The court additionally found that the clause was notnarrowly tailored to serve the state interest in open-mindedness because it specifically disallows thecandidate from even knowing the identity ofcontributors. Under either interpretation, the courtfound that the clause did not pass strict scrutiny.

In Weaver v. Bonnor,127 the Eleventh Circuit alsostruck down a solicitation clause under the rationaleprovided in White. The court held that the provisionfailed strict scrutiny because candidates werecompletely chilled from speaking to potentialcontributors and from speaking about endorsements.128

The court explained that the fact that judicialcandidates require financial support and publicendorsements does not suggest that they will bepartial if they are elected and the provision for a

126 Id. at 765–66.

127 309 F.3d 1312 (11th Cir. 2002), reh’g & reh’g en banc denied, 57Fed. App’x 416 (11th Cir. 2003).

128 Id. at 1322–23.

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committee solicitation alternative does not reduce therisk of impartiality. “Successful candidates will feelbeholden to the people who helped them get electedregardless of who did the soliciting of support.”129

1. Facial Challenge

Strict Scrutiny

The Court applies strict scrutiny to determine theconstitutionality of the solicitation clause for largelythe same reasons it has applied strict scrutiny to thepreviously discussed canons. The solicitation clauseprohibits discussion by the judicial candidate or judgeand his or her constituents for the purpose of solicitingpublic support or contributions. Plaintiffs focus only onthe public support portion of the clause, whiledefendants emphasize the contributions portion of theclause, arguing that this provision demands a lowerstandard of scrutiny. The Canon at issue here is muchdifferent than the laws considered under the line ofcases cited by defendants that use a lower standard ofscrutiny. Those cases deal with campaign contributionlimits, and have been found to “entail only a marginalrestriction upon the contributor’s ability to engage infree communication.”130 In contrast, the solicitationCanon at issue here restricts the candidate’s speech,not the contributor’s speech, and unlike thecontribution cases, is not tied to amounts ofcontributions. The Court finds that this clause

129 Id. at 1323.

130 E.g., McConnell v. FEC, 540 U.S. 93, 134–35 (2003) (discussingthe communicative value of contributions and their ability to“facilitate the speech of their recipients.”).

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prohibits an entire class of speech relating tocampaigns, which is intended to influence voters in theelection.131 As already discussed, this type of content-based prohibition involves “core political speech” andrequires that the regulation be narrowly tailored toserve a compelling government interest.132

Along with judicial impartiality, defendants arguethat the solicitation clause serves the compelling stateinterest of “protecting the judiciary from thecorrupting effects of personal solicitation of funds byjudicial candidates.” Short of arguing that they do notfocus on the contribution portion of the solicitationclause, plaintiffs do not discuss this particularexplanation of the state’s compelling state interest inthe solicitation clause. The Court finds that thisrecitation of the compelling interest at stake is one andthe same as judicial impartiality, meaning bias againstparties and open-mindedness. Corruption of thejudiciary is only a state interest because suchcorruption could lead to preferential treatment oflitigants who contribute funds to the judge’s electioncampaign. Further, “‘[o]pen-mindedness,’ in JusticeScalia’s terminology, is in reality simply a facet of theanti-corruption interest that was recognized in Buckleyv. Valeo and subsequent campaign finance cases.”133

Plaintiffs challenge only the portion of thesolicitation clause that prohibits candidates from

131 See White, 416 F.3d at 764; Weaver, 309 F.3d at 1322.

132 See White, 536 U.S. at 774.

133 White, 416 F.3d at 769 (Gibson, J., dissenting) (citing Buckleyv. Valeo, 424 U.S. 1, 26–27 (1976)).

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soliciting publicly stated support. They do notchallenge the prohibition on solicitation of campaigncontributions. Yet, plaintiffs ask the Court to faciallyinvalidate the entire judicial Canon, so the Courtconsiders the strict scrutiny test as it relates to theentire provision. In her concurrence in White, JusticeO’Connor commented as follows on the necessity ofcampaign contributions and endorsements in contestedjudicial elections:

[C]ontested elections generally entailcampaigning. . . . Unless the pool of judicialcandidates is limited to those wealthy enough toindependently fund their campaigns, alimitation unrelated to judicial skill, the cost ofcampaigning requires judicial candidates toengage in fundraising. Yet relying on campaigndonations may leave judges feeling indebted tocertain parties or interest groups. . . . Even ifjudges were able to refrain from favoringdonors, the mere possibility that judges’decisions may be motivated by the desire torepay campaign contributors is likely toundermine the public confidence in thejudiciary.134

Justice O’Connor concurred to express her view that ifa state chooses to select its judges through the processof judicial elections, it has “voluntarily taken on the

134 Republican Party of Minn. v. White, 536 U.S. 769, 791 (2002)(O’Connor, J., concurring).

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risks to judicial bias” due to the very nature of electioncampaigns.135

The Court finds that the solicitation clause is notnarrowly tailored to serve the compelling state interestin impartiality, either meaning bias against parties oropen-mindedness. The fact that judicial campaigningrequires candidates to garner public support andcampaign contributions does not, in itself, suggest thatthey will be partial to their endorsers or contributorsonce elected. The solicitation clause in Kansas createsa barrier to personal solicitation by requiring it beconducted by a committee. But the committeeprovision only bolsters the argument that thesolicitation clause is an underinclusive regulation toserve the state interest of impartiality. The Canondoes not prohibit all solicitations, only those made inperson. Like the pledges and promises and commitclauses, the recusal canon is narrowly tailored to cureany impartiality that may result from a candidatepersonally soliciting support or contributions. If suchsolicitation prevents a successful candidate from beingimpartial in any specific case or controversy, thatcandidate has an obligation to recuse himself orherself. The Court finds that the solicitation clausefails strict scrutiny because it is not narrowly tailoredto serve the compelling government interest in judicialimpartiality.

Like the clauses in Canon 5A, Canon 5C(2) is alsoimpermissibly overbroad because it chills protectedspeech even if only enforced against those engaged inunprotected activities. Even if the Court accepts the

135 Id. at 792.

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argument that the Panel’s interpretation of the canonsis not binding on the Commission or the KansasSupreme Court, they still have the effect of chillingprotected speech. There is a real and substantialamount of protected speech that is chilled by thesolicitation clause. The clause affects speech by alljudicial candidates during election campaigns. Thestate’s effort to limit the inherent effects of elections onthe public’s confidence in judicial impartiality, chillsprotected political speech.

Plaintiffs were on notice that personally solicitingnomination petition signatures or answering theQuestionnaires could violate Canon 5C(2) based on thePanel’s advisory opinions in JE 117 and 100. Becausethey were on notice, the Court finds that their state ofmind was inconsistent with a vagueness challenge.

2. As-Applied Challenges

Plaintiffs challenge the application of thesolicitation clause to both the Questionnaire and thenomination petition. The enforcement of thesolicitation clause as applied to the Questionnaire is indispute. The Panel issued JE 100 in 2000, a split paneldecision that advised a judge against responding to anewspaper questionnaire that posed certain questionsabout the judge’s legal and political views, because itwould constitute a request for public endorsement, inviolation of Canon 5(C)(2). The minority argued thatthe newspaper not only used the responses todetermine endorsements, but also to provideinformation to its readers about the candidates—a“vital service.” But, the Commission rejected themajority view of this advisory opinion, adopting the

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minority view that the judge may respond but bemindful of the canons “and particularly Canon 5.”

The Court finds that application of the solicitationclause to the Questionnaire fails strict scrutiny and isoverbroad. Allowing a judicial candidate or judge toanswer the Questionnaire would not damage thestate’s interest in an impartial judiciary. First, unlikethe newspaper endorsement in the 2000 JE opinion,KJW does not send out its Questionnaire for the solepurpose of determining which candidate to endorse.Instead, KJW intends to publish the answers to theseQuestionnaire in order to provide information to votersabout the candidates. The Court fails to see howanswering the Questionnaire, for the purpose ofeducating voters as a whole, would contribute towardimpartiality for or against certain parties or thwartopen-mindedness. There is no way that the judicialcandidate could glean which voters respondedfavorably or unfavorably to his or her responses to theQuestionnaire. Further, although answering theQuestionnaire may inform voters of judicialcandidates’ views, there is no evidence that a judgewould not be able to remain open to persuasion, for thesame reasons described under the Court’s analysis ofthe pledges and promises and commit clauses. Again,the recusal Canon serves as a safeguard against anythreat to judicial open-mindedness based on acandidate’s answers to the Questionnaire.

The Panel also issued JE 117 in March 2004, whichfound that Canon 5(C)(2) does prohibit a candidatefrom soliciting signatures on nomination petitions. TheCourt finds that this too is an unconstitutionalapplication of the solicitation clause because theprohibition is not narrowly tailored to serve either

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compelling state interest in impartiality. A candidateis required to obtain signatures of at least 3% of thetotal of the current voter registration of the partydesignated in the district.136 A signature on anomination petition falls far short of an endorsementby a citizen and does not necessarily mean that thesignatory will vote for the candidate. It is difficult tounderstand how the prohibition serves the interest inpreventing bias for or against parties given the largenumber of signatures the judicial candidate mustcollect for the nomination petition. Further, there is noindication of how collecting signatures on thenomination petitions would in some way hurt thesuccessful candidate’s “willing[ness] to consider viewsthat oppose his preconceptions, and remain open topersuasion, when the issues arise in a pending case.”137

IV. Remaining Preliminary Injunction Factors

A. Irreparable Injury

Having determined that plaintiffs have met thefirst prong of the preliminary injunction test on two ofthe three challenged canons, the Court now turns tothe second prong and determines whether they willsuffer irreparable harm if the preliminary injunctionis not imposed. “The loss of First Amendmentfreedoms, for even minimal periods of time,

136 K.S.A. § 25-205(e)(3).

137 See White, 536 U.S. at 778.

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unquestionably constitutes irreparable injury.”138

Plaintiffs have met their burden of demonstrating thattheir protected speech will be curtailed if thepreliminary injunction is not granted because, at aminimum, Canons 5A(d)(i) and (ii) and 5C(2) chillplaintiffs from answering the Questionnaires andcollecting nomination petition signatures.

Furthermore, plaintiffs will suffer irreparableinjury if the Questionnaire responses are not allowedto be published prior to the election. Although it isunclear if KJW will be able to publish the answers tothe Questionnaire prior to the August 1 primary, theywill certainly be able to publish the results prior to theNovember election if the injunction is granted.

B. Harm to Others

The Court also agrees that the threatened injury toplaintiffs outweighs any injury to defendants if apreliminary injunction is issued. Defendants arguethat they will suffer harm if judicial candidates areable to engage in unprotected speech during theelection campaign. But the Court has alreadydetermined that plaintiffs are likely to succeed on themerits of their claim that two of these three canons arenot narrowly tailored to serve a state interest inprohibiting truly unprotected speech. The recusalCanon will still be an available mechanism for judgeswho make statements during the campaign that

138 Elrod v. Burns, 427 U.S. 347, 373 (1976); see also PacificFrontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir.2005).

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render them impartial in a particular case orcontroversy.

C. Public Interest

The Court also finds that issuing a preliminaryinjunction is not adverse to the public interest becauseit preserves voters’ ability to learn vital informationabout the judicial candidates and because it protectsboth the candidates’ and judges’ free speech and KJWand the public’s right to receive such speech.

V. Motion to Consolidate

Plaintiffs ask that the Court consolidate thepreliminary injunction hearing with a trial on themerits under Fed. R. Civ. P. 65(a)(2). Plaintiffs arguethat there are no factual issues present and that the“case will not change as a result of a hearing on themerits.”

Both the Supreme Court and the Tenth Circuitcaution that the parties receive clear andunambiguous notice of the court’s intent to consolidate“either before the hearing commences or at a timewhich will still afford the parties a full opportunity topresent their respective cases.”139 The Tenth Circuithas explained that this is primarily because there aresuch different procedures that accompany preliminary

139 Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); N.Arapahoe Tribe v. Hodel, 808 F.2d 741, 753 (10th Cir. 1987).

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and permanent injunctions.140 Additionally, theinjunction standard of probability on the merits is notthe same as actual success on the merits.141

The Court denies the motion to consolidate. First,the relief sought in this case is more than theinjunctive relief sought in the preliminary andpermanent injunctions because plaintiffs additionallyseek declaratory relief. Further, the Court did not givethe parties notice of an intent to consolidate before thepreliminary injunction hearing or at a time that wouldstill afford them a full opportunity to present theircases.

VI. Conclusion

In sum, the Court finds that the plaintiffs havesustained their burden of proving each of the fourelements necessary to obtain a preliminary injunction.The Court finds that plaintiffs are substantially likelyto succeed on the merits of their claims concerning thepledges and promises, commits, and solicitationclauses under Republican Party of Minnesota v. White.Although the pledges and promises and commitclauses may be narrowly tailored to further the state’scompelling interest in judicial impartiality and theappearance of judicial impartiality, meaning “open-mindedness,” the overbreadth of these clausesunconstitutionally chills a real and substantial amountof protected speech. While these clauses may be

140 See N. Arapahoe Tribe, 808 F.2d at 753 (citing Thornburgh v.Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986);Camenisch, 451 U.S. at 395).

141 Id.

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narrowly tailored in terms of their purpose, the scopeof their sweep renders them unconstitutional.

The Court finds that plaintiffs are substantiallylikely to show that the solicitation clause, on the otherhand, is not narrowly tailored to serve the compellingstate interest in judicial impartiality under eithermeaning of impartiality. The Canon is underinclusiveand fails to address problems of partiality that areinherent in a system of judicial elections.

The Court takes this opportunity to point out thatalthough the preliminary injunction in this case willallow judicial candidates the opportunity to makecertain statements in the context of their campaigns,they are by no means compelled to do so.142 “[T]hepractice of voluntarily demurring does not establishthe legitimacy of legal compulsion to demur.”143

Further, the recusal Canon operates as a check againstany statements made that could later render a judgeimpartial in a particular case or controversy.

This Court follows the Supreme Court’s opinion inWhite and finds certain Kansas judicial canonsunconstitutional. As the Supreme Court explained, the“disparity” between the practice of popular electionsfor judges, and the model judicial canons, which aredrafted by the ABA, is not surprising given the ABA’sopposition to judicial elections.144 The Court furtherstated that although this

142 See White, 536 U.S. at 783 n.11.

143 Id.

144 Id. at 787.

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opposition may be well taken (it certainly hadthe support of the Founders of the FederalGovernment), . . . ‘[T]he greater power todispense with elections altogether does notinclude the lesser power to conduct electionsunder conditions of state-imposed voterignorance. If the State chooses to tap the energyand the legitimizing power of the democraticprocess, it must accord the participants in thatprocess . . . the First Amendment rights thatattach to their roles.’145

The purpose of the judicial canons is not only toregulate the behavior of the judiciary, but also toinstill public confidence in the judiciary. Yet, asJustice O’Connor observed in her concurrence inWhite, necessary corollaries to the electoral processsuch as the potentially political consequences of legaldecisions and fundraising, undermine publicconfidence in the judiciary. Despite the existence ofcompelling arguments against the practice of judicialelections, the State of Kansas has opted to allow forjudicial elections on a district by district basis.Because the State has voluntarily allowed for thismethod of judicial selection, the candidates should beallowed to educate the voters about themselveswithout fear of discipline.

IT IS THEREFORE ORDERED BY THECOURT THAT:

145 Id. at 787–88 (emphasis added) (quoting Renne v. Geary, 501U.S. 312, 349 (1991)).

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1. Plaintiffs’ Motion for Preliminary Injunction(Doc. 5) is granted in part, with respect toKan. S. Ct. R. 601A, Canon 5A(3)(d)(i) and (ii)and 5C(2), and denied in part with respect toCanon 3E(1);

2. Plaintiffs’ Motion to Consolidate (Doc. 2) isdenied; and

3. Defendants are enjoined and prohibited fromenforcing Kan. S. Ct. R. 601A, Canon 5A(3)(d)(i)and (ii) and Canon 5C(2) against any candidatefor judicial office, including an incumbent judge.The injunction does not in any way limit orprevent the recusal of a candidate who is electedbased on any statement he or she may makeduring the election.

IT IS SO ORDERED.

Dated this 19th day of July 2006.

S/ Julie A. Robinson Julie A. RobinsonUnited States District Judge

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APPENDIX D

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

No. 09-3356

[Filed September 30, 2011]_________________________________________KANSAS JUDICIAL WATCH, et al., ) ) Plaintiffs - Appellants, )

)v. )

)MIKE L. STOUT, in his official capacity )as a Member of the Kansas Commission )on Judicial Qualifications, et al., )

)Defendants - Appellees. )

_________________________________________ )

ORDER_________________

Before KELLY, EBEL, and HOLMES, CircuitJudges.

_________________

Appellees’ petition for rehearing is denied.

The petition for rehearing en banc was transmittedto all of the judges of the court who are in regular

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active service. As no member of the panel and no judgein regular active service on the court requested thatthe court be polled, that petition is also denied.

Entered for the Court,

/s/ Elisabeth A. Shumaker

ELISABETH A. SHUMAKER, Clerk

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APPENDIX E

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

No. 06-3290

[Filed March 12, 2008]_________________________________________KANSAS JUDICIAL REVIEW; )THE HONORABLE CHARLES M. HART; )THE HONORABLE ROBB RUMSEY, )

)Plaintiffs-Appellees, )

)v. )

)MIKE L. STOUT, in his official capacity as )a Member of the Kansas Commission on )Judicial Qualifications; JENNIFER L. )JONES, in her official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; NANCY )ANSTAETT, in her official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; PATRICK BRAZIL, )in his official capacity as a Member of the )Kansas Commission on Judicial )Qualifications; THEODORE B. ICE, in his )official capacity as a Member of the Kansas )Commission on Judicial Qualifications; )

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CHRISTINA PANNBACKER, in her )official capacity as a Member of the Kansas )Commission on Judicial Qualifications; )WILLIAM B. SWEARER, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )CAROLYN TILLOTSON, in her official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )ROBERT FLEMING, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )BRUCE BUCHANAN, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )MARY DAVIDSON COHEN, in her official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )ROBERT A. CREIGHTON, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )DAVID J. KING, in his official capacity as )a Member of the Kansas Commission on )Judicial Qualifications; LAWRENCE E. )SHEPPARD, in his official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; EDWARD G. )COLLISTER, JR., in his official capacity as )Commission Examiner for the Kansas )Commission on Judicial Qualifications; )STANTON A. HAZLETT, in his official )capacity as Disciplinary Administrator; )FRANK D. DIEHL, in his official capacity )as Deputy Disciplinary Administrator; )ALEXANDER M. WALCZAK, in his )official capacity as Deputy Disciplinary )

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Administrator; JANITH A. DAVIS, in her )official capacity as Deputy Disciplinary )Administrator; GAYLE B. LARKIN, in her )official capacity as Admissions Attorney, )

)Defendants-Appellants. )

------------------------- ))

ASSOCIATION OF JUDICIAL )DISCIPLINARY COUNSEL; NATIONAL )AD HOC ADVISORY COMMITTEE ON )JUDICIAL CAMPAIGN CONDUCT; )COLUMBUS BAR ASSOCIATION; DADE )COUNTY BAR ASSOCIATION; KING )COUNTY BAR ASSOCIATION; )GEORGIA COMMITTEE FOR ETHICAL )JUDICIAL CAMPAIGNS; SOUTH )DAKOTA’S SPECIAL COMMITTEE ON )JUDICIAL ELECTION CAMPAIGN )INTERVENTION; CONOCOPHILLIPS, )EMERSON; GENERAL ELECTRIC )COMPANY; GENERAL MILLS, INC.; )GENERAL MOTORS CORPORATION; )HALLIBURTON COMPANY; JP )MORGAN CHASE & CO.; MOTOROLA, )INC; PEPSICO; PHELPS DODGE )CORPORATION; TEXAS INSTRUMENTS )INCORPORATED; TIME WARNER INC.; )WYETH; THE BRENNAN CENTER FOR )JUSTICE AT NEW YORK UNIVERSITY )LAW SCHOOL; CONFERENCE OF CHIEF )JUSTICES, )

)Amici Curiae. )

_________________________________________ )

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_________________________________

CERTIFICATION OF QUESTION OF STATE LAW

_________________________________

Before LUCERO, EBEL, and HOLMES, CircuitJudges.

_________________________________

Kansas Code of Judicial Conduct Canons 5A(3)(d)(i)and (ii) and 5C(2) (“Canons”) prohibit candidates forstate judicial office from making certain kinds ofpledges and commitments, and from personallysoliciting support for their campaigns. Plaintiffs-Appellees Kansas Judicial Review (“KJR”), theHonorable Charles M. Hart, and Robb Rumsey filedproceedings in the United States District Court ofKansas, claiming that the Canons are unconstitutionalboth on their face and as applied because they infringeon First Amendment rights of political expression. Onthe basis that plaintiffs had standing, that their claimswere ripe, and that they were likely to succeed on themerits, the district court granted the preliminaryinjunction shortly before the 2006 state election. TheKansas Commission on Judicial Qualifications (the“Commission”) appeals the grant of the preliminaryinjunction preventing enforcement of these Canons.

Exercising jurisdiction pursuant to 28 U.S.C.§ 1292(a)(1), we hold that plaintiffs have standing tochallenge the Canons and that their claims are ripe.Because there are important and unsettled questionsof state law underlying plaintiffs’ claims, weCERTIFY questions to the Kansas Supreme Court.Accordingly, we reserve judgment on the grant of

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preliminary injunction pending the decision of thestate court on these issues, and we retain jurisdictionover any federal constitutional questions remainingthereafter. We VACATE the preliminary injunctionwith respect to the unchallenged portion of Canon5C(2) regarding judicial candidates’ solicitation ofcampaign contributions.

I

A

Kansas provides for popular election of somejudges, holding partisan political contests for judicialoffice in 14 of its 31 judicial districts. The KansasSupreme Court has adopted a Code of JudicialConduct (“Code”) regulating the behavior of judges andjudicial candidates. See Kan. Sup. Ct. R. 601A. Threebodies are involved in the interpretation andenforcement of the Code: the Judicial Ethics AdvisoryPanel (“JEAP”), the Commission, and the KansasSupreme Court.

JEAP was created by the Kansas Supreme Court toprovide nonbinding ethical “guidance” to personssubject to the Code. See Kan. Sup. Ct. R. 650. Thepanel is comprised of three retired judges, one of whomis usually a retired state Supreme Court justice, andpanel members are appointed by the Kansas SupremeCourt. Judges and judicial candidates may requestadvisory opinions interpreting the Code from JEAP.Id. Although these advisory opinions are not bindingon the Commission or the Kansas Supreme Court, theCommission must take into account a judge orcandidate’s reliance upon an advisory opinion in itsinvestigation of an alleged violation of the Code. Kan.

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Sup. Ct. R. 650(f). According to Justice Robert Six, aformer Commission member and a retired KansasSupreme Court justice, judges in the state rely uponthese opinions and consider them “authoritative.”

The Commission, also established by the KansasSupreme Court, is charged with investigatingallegations against judges and candidates, andrecommending disciplinary action when necessary. SeeKan. Sup. Ct. R. 602-21. Its 14 members are appointedby the Supreme Court and consist of a mix of judges,lawyers, and nonlawyers. Anyone may submit acomplaint regarding the conduct of a judge orcandidate to the Commission, with the majority ofcomplaints coming from the general public. Eachcomplaint received by the Commission is assigned to aseven-member panel for investigation. If theinvestigatory panel finds probable cause of a violationof the Code, it refers the matter to a seven-memberhearing panel for a trial-like proceeding. There is nodirect appeal of the investigatory panel’s decision.

Upon finding clear and convincing evidence of anethics violation, the hearing panel may take severalactions, ranging from an admonishment by the panelto a recommendation that the Kansas Supreme Courtremove the judge from the bench. Although thehearing panel may rely on clearly establishedconstitutional law, it may not consider novelconstitutional arguments. Disciplinary recommen-dations made by the panel are automatically reviewedby the Kansas Supreme Court. Factual findings of thehearing panel are subject to substantial evidencereview.

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This case involves challenges to three Code clauses.Canon 5A(3)(d) provides that judicial candidates “shallnot make pledges or promises of conduct in office otherthan the faithful and impartial performance of theduties of the office” (“Pledges Clause”) or “makestatements that commit or appear to commit thecandidate with respect to cases, controversies or issuesthat are likely to come before the court” (“CommitsClause”). Canon 5C(2) provides that “a candidate shallnot personally . . . solicit publicly stated support,”although candidates may establish committees tosolicit support and campaign contributions on theirbehalf (“Solicitation Clause”). These clauses apply toall judicial candidates. See Kan. Sup. Ct. R. 601Apmbl. (defining “candidate”); 601A (containing Canon5).

B

In February 2006, plaintiff KJR mailed aquestionnaire and explanatory cover letter to alldeclared judicial candidates in Sedgwick County,Kansas. Candidates were asked to answer thequestionnaire, designed to elicit views on a variety oflegal and political issues.1 The cover letter asked thatcandidates answer the questionnaire, consistent withtheir ethical obligations under the Code. An option ofdeclining to respond if candidates believed the Codeprohibited answering was offered. KJR received seven

1 Candidates were presented with eight propositions, ranging fromwhether a recent Kansas Supreme Court case violated theseparation of powers to their personal views on marriage andwhen life begins. Next to each proposition, they were asked tomark one of the following statements: Agree, Disagree, Undecided,Decline to Respond, and Refuse to Respond.

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responses, only one of which included substantiveanswers to the questionnaire. All other candidatesmarked the “Decline to Respond” option.2

JEAP has issued two opinions addressing candidatequestionnaires.3 In 2000, JEAP published advisoryopinion JE 100, which states that a judicial candidatemay not answer questionnaires sent by newspapers forthe purpose of deciding whether to make anendorsement. The majority of the panel viewed theanswering of such questionnaires as requests forpublic endorsement and concluded that a responsewould violate the Solicitation Clause. One panelmember dissented and advanced the view that acandidate may answer such questionnaires but “mustbe ever mindful of the Canons of Judicial Conduct,particularly Canon 5.” After JE 100 was published, theCommission attached a “Note” to the opinion, statingthat it was not bound by JEAP advisory opinions andadopted the minority view.

2 The questionnaire included a footnote to the “Decline toRespond” option, which states:

This response indicates that I would answer this question,but believe that I am or may be prohibited from doing soby [the Pledges and Commits Clauses]. This response alsoindicates that I would answer this question, but believethat, if I did so, then I will or may be required to recusemyself as judge in any proceeding concerning this answeron account of Kansas Canon 3E(1) . . . .

3 KJR sought an advisory opinion from JEAP on whether judicialcandidates could answer its questionnaire consistent with theCanons. JEAP refused to issue an opinion because, under theKansas Supreme Court Rules, only persons subject to the Codemay request an advisory opinion. Kan. Sup. Ct. R. 650(b).

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In 2006, plaintiff Robb Rumsey, at the time acandidate for judicial office, asked JEAP whether hecould respond to KJR’s questionnaire. In advisoryopinion JE 139, citing the Pledges and CommitsClauses, JEAP determined that because he was anannounced candidate, Rumsey could not answer thequestionnaire. Again, the Commission attached a“Note” to the advisory opinion, rejecting JEAP’sapproach.4 Citing Republican Party of Minnesota v.White, 536 U.S. 765 (2002), the Commission adoptedthe principle that judicial candidates may publiclyannounce their views on legal and political issues.

Since adoption of the Canons, the Kansas SupremeCourt has spoken to the Pledges Clause on oneoccasion, but has yet to address the other two clausesat issue. In re Baker, 542 P.2d 701 (Kan. 1975),involved a candidate who was subjected to disciplinaryproceedings after publicly pledging to be a “full-timejudge” and eliminate court delay. Id. at 704. Rejectingthe Commission’s disciplinary recommendation, thecourt held that these statements relate to the faithfulperformance of official duties and did not violate thePledges Clause.5 Id. at 705.

4 This note was added on August 2, 2006, after the district courthad issued a preliminary injunction in the present case.

5 In 1975, the Pledges Clause was contained in Canon 7B(1)(c) andstated that a candidate for judicial office “should not make pledgesor promise of conduct in office other than the faithful andimpartial performance of the duties of the office.” Id. at 703(emphasis added).

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C

Plaintiff Charles M. Hart, a state district courtjudge in Butler County, seeks to be a candidate for re-election in 2008. In order to qualify as a candidate, herequires a sufficient number of voters sign anomination petition. In 2004, JEAP issued advisoryopinion JE 117, declaring that a judicial candidatemay not seek signatures for a nomination petitionunder the Solicitation Clause. Neither the Commissionnor the Kansas Supreme Court has addressed JE 117or the Solicitation Clause. Hart proposes to go door-to-door to collect these signatures, but will not do sobecause he fears discipline pursuant to the SolicitationClause.

D

On May 24, 2006, KJR, Rumsey, and Hart filed acomplaint against the Commission in federal districtcourt, seeking injunctive and declaratory relief, and amotion for preliminary injunction. They requested thatenforcement of the Pledges, Commits, and SolicitationClauses be enjoined as being unconstitutionallyoverbroad and vague, and chilling candidates’ politicalspeech, thereby restricting the free exchange of viewsbetween candidates and potential voters. Additionally,plaintiffs argued that the Clauses wereunconstitutional as applied to them. In response, theCommission asserted that KJR lacked standing to sue,this preenforcement challenge was not ripe, and theclauses were constitutional. It also requestedcertification of a question of state law to the KansasSupreme Court, namely whether the Pledges andCommits Clauses function as the kind of prohibition on

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announcements struck down by the United StatesSupreme Court in White, 536 U.S. 765.

After a hearing, the district court granted apreliminary injunction as to the Pledges, Commits,and Solicitation Clauses, and denied the remainingrequests.6 The district court found that, despite notbeing subject to the Canons, KJR had standing tochallenge them and that plaintiffs’ claims were ripe forreview. It also found that plaintiffs were likely tosucceed on the merits of their claims that the Clauseswere unconstitutional and that the other preliminaryinjunction factors weighed in their favor. TheCommission filed a timely notice of appeal.

On October 6, 2006, the district court denied bothof the Commission’s motions, for a stay of theinjunction pending appeal and for certification of aquestion of state law to the Kansas Supreme Court. OnNovember 3, 2006, a panel of this court granted theCommission’s motion for a stay with respect to theportion of the Solicitation Clause concerning a judicialcandidate’s personal solicitation of campaigncontributions.

II

At the threshold, we must determine whetherplaintiffs’ claims are justiciable—that is, whetherplaintiffs have standing to sue and whether their

6 Plaintiffs also challenged Canon 3E, which requires recusal incases where a judge’s “impartiality might reasonably bequestioned,” but the district court denied a preliminary injunctionwith respect to that canon. Plaintiffs do not appeal that decision.

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claims are ripe for judicial review. We reviewquestions of justiciability de novo. Brereton v.Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir.2006) (standing); Skull Valley Band of GoshuteIndians v. Nielson, 376 F.3d 1223, 1238 (10th Cir.2004) (ripeness).

We must also decide if, as the Commissionsuggests, we should refrain from hearing this caseunder Pullman abstention. See R.R. Comm’n v.Pullman Co., 312 U.S. 496, 501 (1941). We review denovo whether the requirements for Pullman abstentionhave been met. See Spoklie v. Montana, 411 F.3d 1051,1055 (9th Cir. 2005); see also Taylor v. Jaquez, 126F.3d 1294, 1296 (10th Cir. 1997) (reviewing questionof Younger abstention de novo).

A

As for standing, under Article III of theConstitution our jurisdiction is limited to actual casesor controversies. Raines v. Byrd, 521 U.S. 811, 818(1997). In order to establish that standing exists, KJRmust show: (1) an injury in fact; (2) a causalconnection between the injury and the challenged act;and (3) a likelihood that the injury will be redressed bya favorable decision. Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61 (1992).

According to the Commission, KJR lacks an injuryin fact because KJR is not directly subject to theCanons; the Canons do not limit KJR’s speech and the

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organization cannot be disciplined under the Canons.7

In the First Amendment context, however, a plaintiffneed not be subject to a speech restriction in order tohave standing to advance a challenge. FirstAmendment protections extend to both speakers andlisteners, the latter having a right to receiveinformation and ideas. Va. State Bd. of Pharmacy v.Va. Citizens Consumer Council, Inc., 425 U.S. 748,756-57 (1976); U.S. West, Inc. v. FCC, 182 F.3d 1224,1232 (10th Cir. 1999). Thus, provided there is a willingspeaker, KJR has standing to challenge the Canons.Va. State Bd. of Pharmacy, 425 U.S. at 756. Rumsey,who was subject to the Canons during his 2006candidacy, claims to be a “willing speaker.” He tells usthat but for the limitations imposed by the Canons, hewould have answered KJR’s questionnaire.8

7 Because both Hart and Rumsey were candidates subject to theCanons, they clearly demonstrated standing to bring suit, and theCommission does not contend otherwise.

8 The Commission points to recent cases involving challenges tosimilar judicial canons in which plaintiffs’ claims were dismissedfor lack of standing. Pa. Family Inst., Inc. v. Black, 489 F.3d 156(3d Cir. 2007); Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545(7th Cir. Oct. 26, 2007). In those cases, however, plaintiffs failedto show that there were any judicial candidates who would bewilling to answer the questionnaire, and no candidates wereparties. See Pa. Family Inst., 489 F.3d at 166-69; Ind. Right toLife, Inc., 507 F.3d at 649-50. By contrast, recipient standingexists when judicial candidates themselves are parties and attestto a willingness to answer the questionnaires. See, e.g., Pa.Family Inst., Inc. v. Celluci, No. 07-1707, 2007 WL 3010523, at *8(E.D. Pa. Oct. 16, 2007).

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Accordingly, KJR had standing to challenge theCanons at the time the action commenced.9

B

As to ripeness, the Commission argues that KJR’sclaims are not prime for adjudication because there isno clear threat that the Canons will ever be enforcedagainst the candidates involved in the present case. Inorder for a claim to be justiciable under Article III, itmust present a live controversy, ripe fordetermination, advanced in a “clean-cut and concreteform.” Renne v. Geary, 501 U.S. 312, 322 (1991). Ourripeness inquiry “focuses not on whether the plaintiffwas in fact harmed, but rather whether the harmasserted has matured sufficiently to warrant judicialintervention.” Morgan v. McCotter, 365 F.3d 882, 890(10th Cir. 2004) (quotation omitted). In short,“[r]ipeness doctrine addresses a timing question: whenin time is it appropriate for a court to take up theasserted claim.” ACORN v. City of Tulsa, 835 F.2d 735,738 (10th Cir. 1987) (quotation omitted).

9 Although neither the parties nor amici have raised the questionof mootness, we are obligated to conduct “an independent de novoreview to determine whether a case is moot before proceeding tothe merits.” Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir. 2006)(quotation omitted). Because Rumsey is no longer a candidate foroffice, and KJR has not alleged the existence of another candidatewilling to answer the questionnaire, their claims are now moot.We conclude, however, that this case falls under the exception tothe mootness doctrine for cases “capable of repetition, yet evadingreview.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quotationomitted); see also, e.g., FEC v. Wis. Right to Life, Inc., 127 S. Ct.2652, 2663 (2007); Babbitt v. United Farm Workers Nat’l Union,442 U.S. 289, 301 n.12 (1979); Homans v. City of Albuquerque,366 F.3d 900, 903 n.3 (10th Cir. 2004).

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Generally, we apply a two-factor test to determinewhether an issue is ripe. We evaluate “the fitness ofthe issue for judicial resolution and the hardship to theparties of withholding judicial consideration.” SierraClub v. Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990)(quotation omitted). Our ripeness analysis is “relaxedsomewhat” in the context of a First Amendment facialchallenge, however, because an unconstitutional lawmay chill free speech. New Mexicans for BillRichardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (“Richardson”). In such cases, we look at threefactors to evaluate the ripeness of a claim: “(1)hardship to the parties by withholding review; (2) thechilling effect the challenged law may have on FirstAmendment liberties; and (3) fitness of the controversyfor judicial review.” Id. at 1499-1500.

Richardson proves highly informative to ourresolution of the present question. In that case, NewMexico passed a statute preventing candidates forstate office from using contributions raised in a federalelection campaign. Richardson, at the time a UnitedStates Congressperson, brought a facial challengeagainst the statute, claiming that it infringed on hisright to political expression and association. BecauseRichardson was not currently running for state office,New Mexico argued that his claims were not ripe.Richardson, 64 F.3d at 1502.

In holding that his claims were ripe, weemphasized the special concerns raised in the contextof political speech. We acknowledged that, as a generalmatter, “First Amendment rights of free expressionand association are particularly apt to be found ripefor immediate protection, because of the fear ofirretrievable loss.” Id. at 1500 (quotation omitted). In

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addition, we recognized that “[t]he principle that ‘onedoes not have to await the consummation ofthreatened injury to obtain preventive relief’ ‘isparticularly true in the election context.’” Id. at 1501(quoting Babbitt v. United Farm Workers Nat’l Union,442 U.S. 289, 298 (1979) and Renne, 501 U.S. at 332(White, J., dissenting)).

Regarding the first ripeness factor, hardship to theparties, we concluded that Richardson had presentedevidence indicating a “direct and immediate dilemma”for his campaign as a result of the statute. Id. at 1500(quotation omitted). In response to the state’sargument that there was no immediate threat ofprosecution, we held that such a threat was notnecessary to ripen the claim. Id. at 1502. Given thatthe government had “not affirmatively disavowed anyintention of bringing a criminal prosecution againstCongressman Richardson,” and there was a reasonablelikelihood that he may well have violated the statute,we found a credible risk of prosecution. Id. Regardingthe second ripeness factor, we noted that the statute’svagueness likely increased its chilling effect on speech,and that “[i]t is generally accepted that the arguablevagueness of a statute greatly militates in favor offinding an otherwise premature controversy to beripe.” Id. at 1503. Finally, we concluded that thepurely legal nature of the questions presented weighedin favor of finding the case fit for review. Id.

Turning to the present case, we must first considerthe hardship to the parties were we to withholdjudicial review. In evaluating this hardship, we askwhether the Canons create “a direct and immediatedilemma for the parties.” Id. at 1500. The judicialcandidates assert that they face such a dilemma,

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because they must choose not to speak, and therebysacrifice their First Amendment rights, or do so andpotentially run afoul of the judicial canons. They claimthat both the plain language of the Canons and theinterpretations of those Canons by JEAP create achilling effect on candidate speech. In response, theCommission contends that the Canons do not prohibitrelevant speech activities of the candidates, and thusthe candidates cannot reasonably fear that they will besubject to Canonic discipline. Moreover, theCommission argues, there has been no actual threat ofdisciplinary action, as neither the Commission nor theKansas Supreme Court have indicated that they willenforce the Canons in this case.

We assume for the purposes of our ripeness inquirythat the candidates’ legal argument is correct, seeInitiative and Referendum Institute v. Walker, 450F.3d 1082, 1098 (10th Cir. 2006), and that the Canonsdo apply to the conduct in question. This assumptionis not entirely unfounded. At least one body chargedwith interpreting the Canons, the JEAP, has readthem to bar candidates from answering questionnairesor personally soliciting signatures.10 In addition,plaintiffs presented evidence that they have alteredtheir behavior in response to the Canons. At the timethis action was initiated below, Rumsey averred that

10 We note that the Ninth Circuit has dismissed a similar case forlack of ripeness. Alaska Right to Life Political Action Comm. v.Feldman, 504 F.3d 840 (9th Cir. 2007). In that case, however,there were no advisory opinions regarding the interpretation ofthe challenged canon, and no judge had requested one. Id. at 849-50. Because the record in the present case is more developed thanthat in Feldman, we conclude that the cases are readily factuallydistinguishable.

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he “would like to express his views on various legalissues” but would not do so because of the threat ofdiscipline under the Canons. According to Rumsey, theCanons have actually prevented him from speaking inthe past, as evidenced by his response to KJR’squestionnaire to that effect.

Hart asserted that he personally solicitedsignatures for his prior judicial campaigns, butstopped this practice after JEAP issued JE 117, whichstated that he would violate the Solicitation Clause bydoing so. Hart’s position is similar to that of theplaintiff in Richardson, in which we held thatRichardson established an immediate dilemma in partbecause the New Mexico statute at issue “causedCongressman Richardson to engage in the activity offund raising differently than he has in the past.” 64F.3d at 1501. Hart’s nomination petition is due in June2008. Thus he faces a direct and immediate dilemmaregarding how he will conduct his campaign.

The Commission argues that plaintiffs’ fears ofprosecution are illusory. It contends that JEAP’sopinions are merely advisory and not binding upon theCommission or the Kansas Supreme Court. Moreover,it claims that it has renounced JEAP’s interpretationsof the Canons in the “Notes” attached to the relevantopinions. We need not decide the effect of theseopinions and notes on Kansas judicial ethics at thisstage of our analysis. We merely recognize that theexistence of these opinions lends credibility toplaintiffs’ fears that their speech will violate theCanons; thus their concerns are not merely “imaginaryor wholly speculative.” Babbitt, 442 U.S. at 302.Having created a system whereby judges andcandidates may seek such advisory opinions before

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taking potentially risky actions, the state should notbe surprised when parties rely on such opinions.Although the Notes apparently distance theCommission from the opinions of JEAP, they fall shortof an affirmative disavowal of an intention toprosecute. See id.; see also Richardson, 64 F.3d at1502.

The Commission also notes that no disciplinaryaction is pending against judicial candidates. We donot find the lack of disciplinary actions to bedispositive. So long as the Canons remain in effect intheir current form, the state is free to initiate suchaction against candidates. See Grant v. Meyer, 828F.2d 1446, 1449 (10th Cir. 1987) (when fear of sanction“is not imaginary or wholly speculative, a plaintiffneed not ‘first expose himself to actual arrest orprosecution to be entitled to challenge [the] statute’”(quoting Babbitt, 442 U.S. at 302)).

With respect to the chilling effect on speech,plaintiffs claim that the Canons are unconstitutionallyvague and overbroad. As previously discussed, “thearguable vagueness of a statute greatly militates infavor of finding an otherwise premature controversy tobe ripe.” Richardson, 64 F.3d at 1503. In light of thesechilling concerns, we have stated that a plaintiff“should not have to risk prosecution, under a statutewhose scope is unclear, before his challenge to theconstitutionality of that statute is ripe.” Id.; see alsoBabbitt, 442 U.S. at 303 (“If the provision were trulyvague, appellees should not be expected to pursue theircollective activities at their peril.”). Given that thepotential vagueness and overbreadth of the Canonsmay increase both the hardship to the plaintiffs and

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the chilling effect on speech, the presence of theseclaims weighs in favor of ripeness.

Finally, we consider whether the issues are fit forjudicial review, focusing on “whether determination ofthe merits turns upon strictly legal issues or requiresfacts that may not yet be sufficiently developed.”Richardson, 64 F.3d at 1499. Plaintiffs bring bothfacial and as applied challenges to the Canons. Wehave previously held that “a first amendmentchallenge to the facial validity of a statute is a strictlylegal question; it does not involve the application of thestatute in a specific factual setting.” ACORN, 835 F.2dat 740. Accordingly, the facial challenges are fit forreview. In addition, we conclude that the as appliedchallenges are fit, because the facts of this case arerelatively uncontested. The Commission’s primaryobjection to plaintiffs’ claims is that the Commissionand the Kansas Supreme Court have not ruled directlyon the legal issues at stake.

In conclusion, KJR and the candidates havesufficiently demonstrated a credible, contemporaryinjury to their First Amendment rights. Delay inreview of their claims would not materially assist thiscourt in its legal analysis. Thus these claims are ripefor review.

C

The Commission claims that we should abstainfrom hearing this case because the federalconstitutional issues at stake could be mooted orpresented in a different posture by a determination ofstate law. See Pullman Co., 312 U.S. at 501. Pullmanabstention is appropriate when: “(1) an uncertain issue

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of state law underlies the federal constitutional claim;(2) the state issues are amenable to interpretation andsuch an interpretation obviates the need for orsubstantially narrows the scope of the constitutionalclaim; and (3) an incorrect decision of state law . . .would hinder important state law policies.” Lehman v.City of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992)(citation omitted). Such abstention is “a narrowexception” to the duty of federal courts to adjudicatecases properly before them and “is used only inexceptional circumstances.” S & S Pawn Shop, Inc. v.City of Del City, 947 F.2d 432, 442 (10th Cir. 1991).Courts have been particularly reluctant to abstain incases involving facial challenges on First Amendmentgrounds, see City of Houston v. Hill, 482 U.S. 451, 467(1987), in part because the delay caused by decliningto adjudicate the issues could prolong the chillingeffect on speech. Id. at 467-68 (noting that “[t]o forcethe plaintiff who has commenced a federal action tosuffer the delay of state-court proceedings might itselfeffect the impermissible chilling of the veryconstitutional right he seeks to protect” (quotationomitted)); see also Clajon Prod. Corp. v. Petera, 70F.3d 1566, 1576 (10th Cir. 1995).

Recognizing these problems with Pullmanabstention, the Supreme Court has expressed apreference for certifying questions to a state’s supremecourt. Certification “allows a federal court faced witha novel state-law question to put the question directlyto the State’s highest court,” and has the advantagesof “reducing the delay, cutting the cost, and increasingthe assurance of gaining an authoritative response”from the state court. Arizonans for Official English v.Arizona, 520 U.S. 43, 76 (1997). In addition, theprocedure promotes “cooperative judicial federalism,”

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Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974),particularly in circumstances where a state court “hasnot yet had the opportunity to interpret the pertinentstatutory language,” Dorman v. Satti, 862 F.2d 432,435 (2d Cir. 1988) (citing Virginia v. Am. BooksellersAss’n, Inc., 484 U.S. 383, 397 (1988)). The procedure isconsistent with our duties to avoid passing on theconstitutionality of a statute where possible, Crowellv. Benson, 285 U.S. 22, 62 (1932), and, in particular, toavoid considering “the Constitutionality of a statestatute in the absence of a controlling interpretation ofits meaning and effect by the state courts.” Arizonans,520 U.S. at 75 (quoting Poe v. Ullman, 367 U.S. 497,526 (1961) (Harlan, J., dissenting)).

Yet “[c]ertification is not to be routinely invokedwhenever a federal court is presented with anunsettled question of state law.” Armijo v. Ex Cam,Inc., 843 F.2d 406, 407 (10th Cir. 1988). Absent “somerecognized public policy or defined principle guidingthe exercise of the jurisdiction conferred,” federalcourts bear a duty to decide questions of state lawwhen necessary to render a judgment. Copier ex rel.Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 838(10th Cir. 1998) (quoting Meredith v. City of WinterHaven, 320 U.S. 228, 234 (1943)). Thus we have heldthat we will certify only questions of state law that areboth “unsettled and dispositive.” Anaconda MineralsCo. v. Stoller Chem. Co., 990 F.2d 1175, 1177 (10thCir. 1993) (citation omitted). Moreover, wherestatutory interpretation is at issue, the touchstone ofour certification inquiry is whether the state statute isreadily susceptible of an interpretation that “wouldavoid or substantially modify the federal constitutionalchallenge to the statute.” Bellotti v. Baird, 428 U.S.

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132, 148 (1976); see also Am. Booksellers Ass’n, Inc.,484 U.S. at 397.

The decision to certify “rests in the sound discretionof the federal court,” Lehman Bros., 416 U.S. at 391,and a federal court may certify a state-law issue suasponte. Elkins v. Moreno, 435 U.S. 647, 662 (1978); seealso Kan. Stat. Ann. § 60-3202 (permitting certificationon the federal court’s own motion).11 Under our rules,“[w]hen state law permits, this court may . . . certify aquestion arising under state law to that state’s highestcourt according to that court’s rules.” 10th Cir. R.27.1(A). Kansas law provides that

[t]he Kansas supreme court may answerquestions of law certified to it by . . . a court ofappeals of the United States . . . if there areinvolved in any proceeding before it questions oflaw of this state which may be determinative ofthe cause then pending in the certifying courtand as to which it appears to the certifyingcourt there is no controlling precedent in the

11 The Commission requests certification of whether the Pledgesand Commits Clauses are de facto announce clauses. See White,536 U.S. at 765. Because this question is not dispositive in thiscase, we decline to certify it and likewise hold that the districtcourt did not abuse its discretion in denying the motion to certify.If the Kansas Supreme Court held that these clauses functionedas announce clauses, they would be unconstitutional under White.If, however, the Kansas Supreme Court held that the clauses werenot announce clauses, we would need to determine how theymight otherwise be interpreted under state law. TheCommission’s failure to ask the right question, however, does notdeprive this court of the power to certify dispositive questions tothe Kansas Supreme Court. See Elkins, 435 U.S. at 662.

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decisions of the supreme court and the court ofappeals of this state.

Kan. Stat. Ann. § 60-3201.

This leads us to conclude that plaintiffs’ claims reston sufficiently novel and determinative questions ofstate law that certification is warranted. In order toadjudicate plaintiffs’ constitutional claims, we mustdetermine the scope and meaning of the three statecanons at issue. The Canons are promulgated by thestate supreme court to regulate the conduct of statejudges and judicial candidates, and thus theirinterpretation falls squarely within the scope of statelaw. In addition, we recognize important state policyinterests at play in this case. Having chosen to electtheir judges, the people of Kansas have an interest indetermining how those elections operate. Given thatour failure to certify could “prevent the informedevolution of state policy by state tribunals,” Moore v.Sims, 442 U.S. 415, 430 (1979), certification under thecircumstances is particularly appropriate.

The novelty of the question of the Canons’interpretation is clear. As both parties concede, theKansas Supreme Court has never ruled directly on thequestions presented in this case. In the only KansasSupreme Court case to address the Canons, the courtruled on the narrow issue of whether a judge’sparticular conduct violated the Pledges Clause, andthe opinion provides no authoritative construction ofthe terms of the Clause. See Baker, 542 P.2d 701; seealso Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir.2003) (finding certification particularly appropriatewhen state courts had not been presented with aconstitutional challenge to the statute because the

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federal court “cannot know . . . whether [the statecourts] would have concluded that there exists a lessnatural, but still permissible, reading of the statutesthat avoids the constitutional issues we address here”).As for JEAP’s advisory opinions, they are not bindinglegal precedent and fall far short of constituting settledstate law.

A state court ruling on the meaning of the Canonsis also likely to moot or substantially modify theconstitutional issues at stake. Belotti, 428 U.S. at 148.Plaintiffs contend that the Canons are faciallyoverbroad, vague, and not narrowly tailored, and thatthe Canons are unconstitutional as applied to them.The Kansas Supreme Court may determine thatplaintiffs’ conduct does not fall under the scope of theCanons, thereby negating their as-applied challenges.This possibility is particularly likely in light of theCommission’s interpretations of the Canons in theNotes, determining that candidates may answerquestionnaires and collect signatures without violatingthe Canons.

As for the facial challenges, a limiting constructioncould eliminate any overbreadth or vagueness, as wellas support the state’s contention that the Canons arenarrowly tailored to serve its interests. Like this court,the Kansas Supreme Court has a duty to construestatutes in a constitutional manner, and to save astatute, if possible, rather than strike it down. State v.Durrant, 769 P.2d 1174, 1183 (Kan. 1989). Althoughthe terms “pledges,” “promises,” “commits,” and“solicits” have clear meanings, each of these terms ismodified by a phrase that is susceptible to multipleinterpretations.

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Under the Pledges Clause, candidates may notmake pledges or promises except for those related to“the faithful and impartial performance of the dutiesof the office.” Depending on the breadth of thisexception, the Pledges Clause may only prohibit anarrow set of statements. The Kansas Supreme Courtis in the best position to define what falls within thescope of the duties of state judicial office and whatdoes not.

In addition to actual commitments, the CommitsClause prevents candidates from making statementsthat “appear to commit” them on issues likely to comebefore the court.12 Plaintiffs’ argument that theCommits Clause is vague rests primarily on theambiguous meaning of this phrase. As plaintiffscontend, the term could refer either to a subjective orobjective appearance of making a commitment.Content-based restrictions on protected speech thatdepend upon subjective impressions raise seriousconstitutional questions. See, e.g., Forsyth County v.Nationalist Movement, 505 U.S. 123, 134 (1992)(“Listeners’ reaction to speech is not a content neutralbasis for regulation.”). An objective test, however,might survive constitutional scrutiny, and a statecourt ruling on the meaning of this phrase couldeliminate unconstitutional vagueness. It is for theKansas Supreme Court to make such a determination.

12 As the Supreme Court recognized in White, limiting the scopeof the Commits Clause to issues likely to come before the court “isnot much of a limitation at all,” 536 U.S. at 772, because “there isalmost no legal or political issue that is unlikely to come before ajudge of an American court,” id. (quoting Buckley v. Ill. JudicialInquiry Bd., 997 F.2d 224, 229 (7th Cir. 1993)). Accordingly, wefocus our inquiry on the phrase “appears to commit.”

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Finally, with respect to the Solicitation Clause,plaintiffs argue that the term “publicly stated support”makes the clause overbroad and not narrowly tailored.Striking down a statute as overbroad is “strongmedicine,” and we should only do so “as a last resort.”Faustin v. City and County of Denver, 423 F.3d 1192,1199 (10th Cir. 2005) (quotations omitted). To beoverbroad, a law must cover a “substantial amount” ofconstitutionally protected speech, Village of HoffmanEstates v. The Flipside, Hoffman Estates, Inc., 455U.S. 489, 494 (1982), as “judged in relation to thestatute’s plainly legitimate sweep,” Broadrick v.Oklahoma, 413 U.S. 601, 615 (1973). We conclude thatthe phrase “publicly stated support” is susceptible to anarrowing construction that could preserve theconstitutionality of the Clause by reducing the amountof protected speech under its ambit.

We are presented with several novel and unsettledquestions of state law, the resolution of which couldsubstantially alter our determination of the federalconstitutional issues at stake. Accordingly, we certifythe following questions to the Kansas Supreme Court:

1. Does a judicial candidate violate Canon5A(3)(d)(i) and (ii) by answering a questionnaireasking for his views on disputed legal andpolitical issues?

2. Does a judicial candidate solicit “publiclystated support” in violation of Canon 5C bypersonally collecting signatures for hisnomination petition?

3. Does the definition of “the faithful andimpartial performance of the duties of the

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office” in Canon 5A(3)(d)(i) include all conductrelevant to the candidate’s performance inoffice?

4. Is the definition of “appear to commit” inCanon 5A(3)(d)(ii) limited to an objectiveappearance of a candidate’s intent to commithimself?

5. Does the definition of “publicly statedsupport” in Canon 5C(2) include endorsementsof a candidate?

III

Both parties concede that the district court’s orderwent beyond the scope of the challenge to Canon 5C(2).Hart claims only that the “publicly stated support”portion of the Solicitation Clause infringes on his FirstAmendment rights. He does not challenge theremainder of Canon 5C concerning solicitation ofcampaign contributions. As the Supreme Court hasnoted, “when confronting a constitutional flaw in astatute, we try to limit the solution to the problem.”Ayotte v. Planned Parenthood of N. New England, 546U.S. 320, 328 (2006). Accordingly, when only one partof a statute is deemed unconstitutional, theappropriate remedy is “to sever its problematicportions while leaving the remainder intact.” Id. at 329(citing United States v. Booker, 543 U.S. 220, 227-29(2005)). Consequently, we limit application of thepreliminary injunction to the personal solicitation ofpublicly stated support.

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V

For the foregoing reasons, we CERTIFY questionsof state law to the Kansas Supreme Court. We reservejudgment on the preliminary injunction againstenforcement of the Pledges and Commits Clauses andthe “publicly stated support” portion of the SolicitationClause pending the response from the KansasSupreme Court. This panel retains jurisdiction overthe appeal. We VACATE the preliminary injunctionwith respect to the campaign contribution aspect of theSolicitation Clause.

Entered for the Court,

/s/Carlos F. LuceroCarlos F. LuceroCircuit Judge

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APPENDIX F

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,170

[Filed December 8, 2008]_________________________________________KANSAS JUDICIAL REVIEW; )THE HONORABLE CHARLES M. HART; )THE HONORABLE ROBB RUMSEY, )

Plaintiffs, ))

v. ))

MIKEL L. STOUT, IN HIS OFFICIAL )CAPACITY AS A MEMBER OF THE )KANSAS COMMISSION ON )JUDICIAL QUALIFICATIONS, et al., )

Defendants. )_________________________________________ )

SYLLABUS BY THE COURT

1.

The Kansas Supreme Court has jurisdiction toanswer questions certified to it by a United StatesCourt of Appeals under K.S.A. 60-3201, which providesthat the state’s highest court may answer certifiedquestions of state law that may be determinative of thecause then pending in the certifying court and as to

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which it appears to the certifying court there is nocontrolling precedent in the decisions of the SupremeCourt and the Court of Appeals of this state.

2.

Because certified questions must, by definition,turn on legal issues, this court’s review of suchquestions is unlimited, subject only to the contours ofthe questions themselves.

3.

Canon 5A(3)(d)(i) of the Kansas Code of JudicialConduct (2007 Kan. Ct. R. Annot. 640)—the pledgesclause—prohibits a candidate for judicial office frommaking pledges, promises, or commitments regardinga particular controversy or issue within a particularcontroversy or regarding certain results in a particularcase that is bound to come before the candidate asjudge. This interpretation is consistent with both thecourt’s duty to construe rules in a constitutionalmanner, if possible, and the duty to provide areasonable interpretation within the scope of the rule’slanguage.

4.

Canon 5A(3)(d)(ii) of the Kansas Code of JudicialConduct—the commits clause—prohibits judicialcandidates from making statements that bind them toa particular disposition with regard to a particularissue, a particular case, or a particular controversybound to come before the candidate as judge. It doesnot prohibit candidates from stating a personal viewon a disputed issue.

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5.

Announcing a judicial candidate’s legal or politicalviewpoint is not prohibited. But a candidate whoidentifies a case or controversy or issue that is likely tocome before him or her when on the bench and whoproceeds to pledge or promise a particular result, or tocommit to a particular resolution of that case,controversy, or issue, engages in behavior inherentlyinconsistent with the faithful and impartialperformance of the duties of the judicial office.

6.

Judges and candidates for judicial office may chooseto answer issue-related questionnaires (though theyare not in any way required to do so) to the extent thatthe questionnaires call for the candidate’s personalviews on disputed legal or political issues. Canons5A(3)(d)(i) and (ii) of the Kansas Code of JudicialConduct do prohibit a judicial candidate fromanswering issue-related questions, however, whengiving responses would bind the candidate as a judgeto a resolution of a particular case, controversy, orissue within a particular controversy. In answeringany questionnaire, it is advisable that a candidate whomakes a public statement should emphasize thecandidate’s duty to uphold the law regardless of his orher personal views and to remain ever mindful of theimpartiality that is essential to the judicial office.

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7.

By personally asking someone to sign a nominationpetition, a judicial candidate is personally solicitingpublicly stated support in violation of Canon 5C(2) ofthe Kansas Code of Judicial Conduct.

8.

The “faithful . . . performance of the duties of theoffice,” as described by the pledges clause, of Canon 5A(2007 Kan. Ct. R. Annot. 641), includes all conductrelevant to the judge’s official actions—from judicialphilosophy when deciding cases to work habits toeducation and ability. 9.

In the Kansas Code of Judicial Conduct, Canon5A(3)(d)(ii)’s prohibition against statements that“appear to commit” judicial candidates with respect tocases, controversies or issues that are likely to comebefore the court requires an objective analysis of theconduct in question from the perspective of areasonable person with knowledge of all of thecircumstances. 2007 Kan. Ct. R. Annot. 642.

10.

Because Canon 5C(2) of the Kansas Code ofJudicial Conduct—the solicitations clause—explicitlyprohibits judges and judicial candidates frompersonally soliciting publicly stated support, the clausenecessarily prohibits judicial candidates frompersonally soliciting endorsements. Such solicitations

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must be delegated to the candidate’s campaigncommittee.

11.

Under the Kansas Code of Judicial Conduct, judgesand judicial candidates are not permitted under thesolicitations clause of Canon 5C(2) to personally andactively seek endorsements of their judicialcandidacies. 2007 Kan. Ct. R. Annot. 643-44. Judgesand judicial candidates may respond, however, torequests regarding their viewpoints on disputedissues, as long as such responses do not otherwiseviolate the canons.

On certification of questions of law from the UnitedStates Court of Appeals for the Tenth Circuit, CircuitJudge Carlos F. Lucero. Opinion filed December 5,2008. The answers to the certified questions aredetermined.

Anita Young Woudenberg, of Bopp Coleson &Bostrom, of Terre Haute, Indiana, argued the cause,and James Bopp, Jr., Thomas J. Marzen, Susan Lee,and Josiah Neeley, of the same firm, Austin K. Vincent,of Topeka, and Richard Peckham, of Andover, werewith her on the briefs for plaintiffs.

George T. Patton, Jr., of Bose McKinney & EvansLLP, of Indianapolis, Indiana, argued the cause, andMarisol Sanchez, of the same firm, Stephen O.Phillips, assistant attorney general, and Stephen N.Six, attorney general, were with him on the brief fordefendants.

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Per Curiam: The United States Court of Appeals forthe Tenth Circuit, pursuant to K.S.A. 60-3201, submitsfive certified questions regarding the interpretation ofvarious provisions of the Kansas Code of JudicialConduct, Rule 601A (2007 Kan. Ct. R. Annot. 617).Kansas Judicial Review v. Stout, 519 F.3d 1107 (10thCir. 2008). The case from which the questions arise ison appeal from a decision of the United States DistrictCourt for the District of Kansas, which granted apreliminary injunction against enforcement of thequestioned judicial canons on the basis that theyviolated the First Amendment to the United StatesConstitution. See Kansas Judicial Watch v. Stout, 440F. Supp. 2d 1209, 1239-41 (D. Kan. 2006).

These certified questions require this court tointerpret three sections of the Kansas Code of JudicialConduct (2007 Kan. Ct. R. Annot. 640): Canon5A(3)(d)(i), Canon 5A(3)(d)(ii), and Canon 5C(2). Canon5A(3)(d)(i)—the “pledges clause”—states that acandidate for judicial office “shall not . . . make pledgesor promises of conduct in office other than the faithfuland impartial performance of the duties of the office.”(2007 Kan. Ct. R. Annot. 641.) Canon 5A(3)(d)(ii)—the“commits clause”—states that a candidate for judicialoffice “shall not . . . make statements that commit orappear to commit the candidate with respect to cases,controversies or issues that are likely to come beforethe court.” (2007 Kan. Ct. R. Annot. 642.) Canon5C(2)—the “solicitations clause”—states in relevantpart that a candidate for judicial office “shall notpersonally . . . solicit publicly stated support . . . . Acandidate subject to public election may, however,establish committees of responsible persons . . . toobtain public statements of support for his or hercandidacy.” (2007 Kan. Ct. R. Annot. 643-44.)

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The five questions certified by the Tenth Circuit,and our respective answers to those questions, are asfollows:

1. Does a judicial candidate violate Canon5A(3)(d)(i) and (ii) by answering a questionnaireasking for his or her views on disputed legal andpolitical issues?

Answer: Perhaps, depending on the questionsasked.

2. Does a judicial candidate solicit “publicly statedsupport” in violation of Canon 5C by personallycollecting signatures for his or her nominationpetition?

Answer: Yes.

3. Does the definition of “the faithful andimpartial performance of the duties of theoffice” in Canon 5A(3)(d)(i) include all conductrelevant to the candidate’s performance inoffice?

Answer: Yes.

4. Is the definition of “appear to commit” in Canon5A(3)(d)(ii) limited to an objective appearance ofa candidate’s intent to commit himself orherself?

Answer: Yes.

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5. Does the definition of “publicly stated support”in Canon 5C(2) include endorsements of acandidate?

Answer: Yes.

FACTUAL BACKGROUND

Plaintiffs Kansas Judicial Review, a political actioncommittee, Robb Rumsey, previously a judicialcandidate and now a state district court judge, andCharles Hart, a state district court judge, filed anaction in the United States District Court for theDistrict of Kansas against members of the KansasCommission on Judicial Qualifications and the office ofthe Disciplinary Administrator, seeking injunctive anddeclaratory relief under 42 U.S.C. § 1983 (2000). Theplaintiffs claimed that the three aforementionedprovisions of the Kansas Code of Judicial Conductviolated their rights to freedom of speech and freedomof assembly under the First Amendment to the UnitedStates Constitution. See Kansas Judicial Watch v.Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006). Thefederal district court granted a preliminary injunctionagainst enforcement of the judicial canons in question.440 F. Supp. 2d at 1240-41.

The defendants appealed. The United States Courtof Appeals for the Tenth Circuit determined that theplaintiffs’ First Amendment claims “rest[ed] onsufficiently novel and determinative questions of statelaw” regarding the canons and that there were“important state policy interests at play” regarding theregulation of judicial conduct and the judicial process.Kansas Judicial Review, 519 F.3d at 1120. The TenthCircuit decided not to reach the merits of the plaintiffs’

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claims before the Kansas Supreme Court had anopportunity to resolve the underlying questions ofstate law. 519 F.3d at 1120. The Tenth Circuit notedthat if the Kansas Supreme Court were to interpretthe provisions of our judicial code in such a way thatthe questionable conduct was permissible, the issuesrelating to the constitutionality of these provisions,which were reserved by the Tenth Circuit, might beeliminated. 519 F.3d 1120-22.

This court has jurisdiction to answer questionscertified to it by a United States Court of Appealsunder K.S.A. 60-3201, which provides that the KansasSupreme Court may answer certified “questions of lawof this state which may be determinative of the causethen pending in the certifying court and as to which itappears to the certifying court there is no controllingprecedent in the decisions of the supreme court andthe court of appeals of this state.” Because certifiedquestions must, by definition, turn on legal issues, thiscourt’s review of such questions is unlimited, subjectonly to the contours of the questions themselves.Danisco Ingredients USA, Inc. v. Kansas City Power &Light Co., 267 Kan. 760, 764-65, 986 P.2d 377 (1999).The underlying facts are not in dispute. The TenthCircuit Court of Appeals provided the following factualbackground:

“A

“Kansas provides for popular election ofsome judges, holding partisan political contestsfor judicial office in 14 of its 31 judicial districts.The Kansas Supreme Court has adopted a Codeof Judicial Conduct (‘Code’) regulating thebehavior of judges and judicial candidates. See

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Kan. Sup. Ct. R. 601A [2007 Kan. Ct. R. Annot.617]. Three bodies are involved in theinterpretation and enforcement of the Code: theJudicial Ethics Advisory Panel (‘JEAP’), theCommission, and the Kansas Supreme Court.

“JEAP was created by the Kansas SupremeCourt to provide nonbinding ethical ‘guidance’to persons subject to the Code. See Kan. Sup.Ct. R. 650 [2007 Kan. Ct. R. Annot. 665]. Thepanel is comprised of three retired judges, oneof whom is usually a retired state SupremeCourt justice, and panel members are appointedby the Kansas Supreme Court. Judges andjudicial candidates may request advisoryopinions interpreting the Code from JEAP.[Rule 650(b).] Although these advisory opinionsare not binding on the Commission or theKansas Supreme Court, the Commission musttake into account a judge or candidate’s relianceupon an advisory opinion in its investigation ofan alleged violation of the Code. Kan. Sup. Ct.R. 650(f) [2007 Kan. Ct. R. Annot. 666].According to Justice [Fred] Six, a formerCommission member and a retired KansasSupreme Court justice, judges in the state relyupon these opinions and consider them‘authoritative.’

“The Commission, also established by theKansas Supreme Court, is charged withinvestigating allegations against judges andcandidates, and recommending disciplinaryaction when necessary. See Kan. Sup. Ct. R.602-21 [2007 Kan. Ct. R. Annot. 647-59]. Its 14members are appointed by the Supreme Court

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and consist of a mix of judges, lawyers, andnonlawyers. Anyone may submit a complaintregarding the conduct of a judge or candidate tothe Commission, with the majority ofcomplaints coming from the general public.Each complaint received by the Commission isassigned to a seven-member panel forinvestigation. If the investigatory panel findsprobable cause of a violation of the Code, itrefers the matter to a seven-member hearingpanel for a trial-like proceeding. There is nodirect appeal of the investigatory panel’sdecision.

“Upon finding clear and convincing evidenceof an ethics violation, the hearing panel maytake several actions, ranging from anadmonishment by the panel to arecommendation that the Kansas SupremeCourt remove the judge from the bench.Although the hearing panel may rely on clearlyestablished constitutional law, it may notconsider novel constitutional arguments.Disciplinary recommendations made by thepanel are automatically reviewed by the KansasSupreme Court. Factual findings of the hearingpanel are subject to substantial evidencereview.

“This case involves challenges to three Codeclauses. Canon 5A(3)(d) provides that judicialcandidates ‘shall not make pledges or promisesof conduct in office other than the faithful andimpartial performance of the duties of the office’(‘Pledges Clause’) or ‘make statements thatcommit or appear to commit the candidate with

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respect to cases, controversies or issues that arelikely to come before the court’ (‘CommitsClause’). Canon 5C(2) provides that ‘a candidateshall not personally . . . solicit publicly statedsupport,’ although candidates may establishcommittees to solicit support and campaigncontributions on their behalf (‘SolicitationClause’). These clauses apply to all judicialcandidates. See Kan. Sup. Ct. R. 601A [Terminology] (defining ‘candidate’) [2007 Kan.Ct. R. Annot. 619]; 601A (containing Canon 5)[2007 Kan. Ct. R. Annot. 640-45].

“B

“In February 2006, plaintiff [Kansas JudicialReview] KJR mailed a questionnaire andexplanatory cover letter to all declared judicialcandidates in Sedgwick County, Kansas.Candidates were asked to answer thequestionnaire, designed to elicit views on avariety of legal and political issues. The coverletter asked that candidates answer thequestionnaire, consistent with their ethicalobligations under the Code. An option ofdeclining to respond if candidates believed theCode prohibited answering was offered. KJRreceived seven responses, only one of whichincluded substantive answers to thequestionnaire. All other candidates marked the‘Decline to Respond’ option.

“JEAP has issued two opinions addressingcandidate questionnaires. In 2000, JEAPpublished advisory opinion JE 100, which statesthat a judicial candidate may not answer

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questionnaires sent by newspapers for thepurpose of deciding whether to make anendorsement. The majority of the panel viewedthe answering of such questionnaires asrequests for public endorsement and concludedthat a response would violate the SolicitationClause. One panel member dissented andadvanced the view that a candidate may answersuch questionnaires but ‘must be ever mindfulof the Canons of Judicial Conduct, particularlyCanon 5.’ After JE 100 was published, theCommission attached a ‘Note’ to the opinion,stating that it was not bound by JEAP advisoryopinions and adopted the minority view.

“In 2006, plaintiff Robb Rumsey, at the timea candidate for judicial office, asked JEAPwhether he could respond to KJR’squestionnaire. In advisory opinion JE 139,citing the Pledges and Commits Clauses, JEAPdetermined that because he was an announcedcandidate, Rumsey could not answer thequestionnaire. Again, the Commission attacheda ‘Note’ to the advisory opinion, rejectingJEAP’s approach. Citing Republican Party ofMinnesota v. White, 536 U.S. 765, [153 L. Ed. 2d694, 122 S. Ct. 2528] (2002), the Commissionadopted the principle that judicial candidatesmay publicly announce their views on legal andpolitical issues. [This note was added on August2, 2006, after the district court had issued apreliminary injunction in the present case.]

“Since adoption of the Canons, the KansasSupreme Court has spoken to the PledgesClause on one occasion, but has yet to address

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the other two clauses at issue. In re Baker, 218Kan. 209, 542 P.2d 701 (1975), involved acandidate who was subjected to disciplinaryproceedings after publicly pledging to be a ‘full-time judge’ and eliminate court delay. [218 Kan.at 212.] Rejecting the Commission’s disciplinaryrecommendation, the court held that thesestatements relate to the faithful performance ofofficial duties and did not violate the PledgesClause. [218 Kan. at 212.]

“C

“Plaintiff Charles M. Hart, a state districtcourt judge in Butler County, seeks to be acandidate for re-election in 2008. In order toqualify as a candidate, he requires a sufficientnumber of voters sign a nomination petition. In2004, JEAP issued advisory opinion JE 117,declaring that a judicial candidate may not seeksignatures for a nomination petition under theSolicitation Clause. Neither the Commission northe Kansas Supreme Court has addressed JE117 or the Solicitation Clause. Hart proposes togo door-to-door to collect these signatures, butwill not do so because he fears disciplinepursuant to the Solicitation Clause.

“D

“On May 24, 2006, KJR, Rumsey, and Hartfiled a complaint against the Commission infederal district court, seeking injunctive anddeclaratory relief, and a motion for preliminaryinjunction. They requested that enforcement ofthe Pledges, Commits, and Solicitation Clauses

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be enjoined as being unconstitutionallyoverbroad and vague, and chilling candidates’political speech, thereby restricting the freeexchange of views between candidates andpotential voters. Additionally, plaintiffs arguedthat the Clauses were unconstitutional asapplied to them. In response, the Commissionasserted that KJR lacked standing to sue, thispreenforcement challenge was not ripe, and theclauses were constitutional. It also requestedcertification of a question of state law to theKansas Supreme Court, namely whether thePledges and Commits Clauses function as thekind of prohibition on announcements struckdown by the United States Supreme Court inWhite, 536 U.S. 765 . . . .

“After a hearing, the district court granted apreliminary injunction as to the Pledges,Commits, and Solicitation Clauses, and deniedthe remaining requests. The district court foundthat, despite not being subject to the Canons,KJR had standing to challenge them and thatplaintiffs’ claims were ripe for review. It alsofound that plaintiffs were likely to succeed onthe merits of their claims that the Clauses wereunconstitutional and that the other preliminaryinjunction factors weighed in their favor. TheCommission filed a timely notice of appeal.

“On October 6, 2006, the district courtdenied both of the Commission’s motions, for astay of the injunction pending appeal and forcertification of a question of state law to theKansas Supreme Court. On November 3, 2006,a panel of this court granted the Commission’s

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motion for a stay with respect to the portion ofthe Solicitation Clause concerning a judicialcandidate’s personal solicitation of campaigncontributions.” Kansas Judicial Review v. Stout,519 F.3d at 1111-14.

DISCUSSION

The federal case underlying this certificationrequest is the latest in a series of actions beingbrought throughout the United States in the wake ofthe United States Supreme Court’s decision inRepublican Party of Minnesota v. White, 536 U.S. 765,153 L. Ed. 2d 694, 122 S. Ct. 2528 (2002). In that case,the Court held that the “announce clause” ofMinnesota’s Code of Judicial Conduct violated theFirst Amendment to the United States Constitution.536 U.S. at 788.

In White, the canon stated that a “‘candidate for ajudicial office, including an incumbent judge,’ shall not‘announce his or her views on disputed legal orpolitical issues.’” 536 U.S. at 768 (quoting Minn. Codeof Judicial Conduct, Canon 5[A][3][d][i] [2000]). TheCourt held that this canon was an impermissible,content-based regulation of speech because itprohibited “a judicial candidate from stating his viewson any specific nonfanciful legal question within theprovince of the court for which he is running.” 536 U.S.at 773.

Notably, the White Court recognized that there wasa difference between the announce clause at issue inthat case and another section of the Minnesota codethat prohibited “‘pledges or promises of conduct inoffice other than the faithful and impartial

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performance of the duties of the office.’” 536 U.S. at770,812 (quoting Minn. Code of Judicial Conduct,Canon 5[A][3][d][i] [2002]). The Court indicated that itwas expressing no view on this latter clause,explaining that “‘announc[ing] . . . views’ on an issuecovers much more than promising to decide an issue aparticular way.” 536 U.S. at 770. The Court furthernoted that the announce clause “extends to thecandidate’s mere statement of his current position,even if he does not bind himself to maintain thatposition after election.” 536 U.S. at 770.

Since the 2002 White decision, several actions havebeen initiated to challenge provisions of variousjudicial codes. Most of these cases involve either“pledges clauses”—like that discussed briefly inWhite—or “commits clauses”—where the canonsgenerally prohibit candidates from committing to aposition on cases, controversies, or issues that mightcome before them if they were to ascend to the bench.Jurisdictions have split as to whether the pledges andcommits clauses are constitutional restrictions onjudicial speech. See Family Trust Foundation ofKentucky, Inc. v. Kentucky Judicial Conduct Comm’n,388 F.3d 224, 227-28 (6th Cir. 2004) (pledges andcommits clauses are similar in scope to announceclause, unconstitutional); Pennsylvania FamilyInstitute, Inc. v. Celluci, 521 F. Supp. 2d 351, 387 (E.D.Pa. 2007) (pledges and commits clauses narrowlyconstrued, constitutional); North Dakota FamilyAlliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1044(D.N.D. 2005) (pledges and commits clauses aresimilar in scope to announce clause, unconstitutional);In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (pledges andcommits clauses are different from announce clause,constitutional); In re Watson, 100 N.Y.2d 290, 301, 763

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N.Y.S. 2d 219, 794 N.E.2d 1 (2003) (pledges clausedifferent from announce clause, constitutional).

The Kansas Code of Judicial Conduct does notcurrently contain an announce clause—the clause atissue in White—as that clause was removed by thiscourt in 1984. See Kansas Judicial Watch, 440 F.Supp. 2d at 1228. ‘The case before us involves achallenge to Kansas’ pledges and commits clauses, aswell as a provision in the solicitations clause. SeeKansas Judicial Review, 519 F.3d at 1112. Theconstitutionality of these clauses is not before us, asjurisdiction over the constitutional questions has beenreserved by the Tenth Circuit. See 519 F.3d at 1122.Instead, the certified questions request this court toprovide authoritative interpretations of the threecanons of judicial conduct at issue in this case.

Maxims of Interpretation and Scope of Review

The Kansas canons of judicial conduct arecontained in Supreme Court Rule 601A (2007 Kan. Ct.R. Annot. 617). The interpretation of a Supreme Courtrule, like the interpretation of a statute, is a questionof law. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934P.2d 976 (1997). For this reason, this court hasemphasized on numerous occasions that it is not boundby the Commission’s interpretation of the judicialcanons.

The most fundamental rule governing statutoryinterpretation is that “the intent of the legislaturegoverns if that intent can be ascertained. Thelegislature is presumed to have expressed its intentthrough the language of the statutory scheme itenacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355,

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378, 22 P.3d 124 (2001). Thus, when the language of astatute is plain and unambiguous, courts “need notresort to statutory construction.” In re K.M.H., 285Kan. 53, 79-80, 169 P.3d 1025 (2007). Instead, “[w]henthe language is plain and unambiguous, an appellatecourt is bound to implement the expressed intent.”State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190(2004). Only where “the face of the statute leaves itsconstruction uncertain” may the court look to “thehistorical background of the enactment thecircumstances attending its passage, the purpose to beaccomplished, and the effect the statute may haveunder the various constructions suggested. [Citationomitted.]” Robinett v. The Haskell Co., 270 Kan. 95,100-01, 12 P.3d 411 (2000).

This court has also explained that “a statute ispresumed constitutional and all doubts must beresolved in favor of its validity. If there is anyreasonable way to construe a statute asconstitutionally valid, the court must do so. A statutemust clearly violate the constitution before it may bestruck down. [Citation omitted.]” Boatright v. KansasRacing Comm’n, 251 Kan. 240, 243, 834 P.2d 368(1992). This court “not only has the authority, but alsothe duty, to construe a statute in such a manner thatit is constitutional if the same can be done within theapparent intent of the legislature in passing thestatute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d1174, cert. denied 492 U.S. 923 (1989).

These same principles apply where this court iscalled on to interpret its own rules. Jarvis v. Drake,250 Kan. 645, 651-53, 830 P.2d 23 (1992). In thesecircumstances, this court is in the unique position ofarticulating its own intention for adopting particular

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provisions. If the language of a particular court rule isclear, this court is bound by that language. But if thelanguage of a Supreme Court rule is subject to morethan one reasonable interpretation, we mayauthoritatively state which interpretation is mostconsistent with our intent in adopting the rule inquestion. See 250 Kan. at 651 (“If Rule 223 wereambiguous, then our intent in adopting the rule andamendment would be controlling.”). For this reason,even though the questions certified in this case arelegal questions in the sense that they require theinterpretation of Supreme Court rules, we have aconsiderable amount of discretion in interpretingambiguous language.

Recommended Revisions to the Code of JudicialConduct

During oral argument before this court, the partiesacknowledged—as the Commission indicated in aseries of letters submitted to the court under SupremeCourt Rule 6.09 (2007 Kan. Ct. R. Annot. 45)—that theCommission is in the process of recommendingsubstantial amendments to the Kansas Code ofJudicial Conduct based on the American BarAssociation 2007 Model Code of Judicial Conduct. TheCommission has presented its recommendations tothis court. We have not considered theserecommendations and have decided not to review theserecommended revisions during the pendency of thiscase. The decision we file today is based upon ourpresent Code of Judicial Conduct, the same that wasconsidered by the United States District Court and theTenth Circuit. By putting off consideration of anyamendments until this case has been decided, we avoidcomplicating the task of answering the Tenth Circuit’s

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questions by changing the rules midstream. We alsoavoid any suggestion that the Commission’ssubmission of new rules while this case is in progressmight be an improper ex parte communication with aparty in the case before us. Thus, although we areaware of the proposed revisions to Kansas’ judicialcode, we choose to decide the matter before us on thebasis of the code in its present form.

I. DOES A JUDICIAL CANDIDATE VIOLATE CANON5A(3)(d)(i) AND (ii) BY ANSWERING A QUESTIONNAIREASKING FOR HIS OR HER VIEWS ON DISPUTED LEGALAND POLITICAL ISSUES?

ANSWER: PERHAPS, DEPENDING ON THE QUESTIONSASKED.

We are not asked whether the particularquestionnaire proposed by the Kansas Judicial Review(KJR) violated Canons 5A(3)(d)(i) and (ii). Instead, asthe question suggests, we are called on to considerwhether, in the abstract, a judicial candidate’sresponse to an issue-related questionnaire ispermissible under these sections.

Canon 5A(3)(d)(i) states that a candidate forjudicial office “shall not . . . make pledges or promisesof conduct in office other than the faithful andimpartial performance of the duties of the office.” 2007Kan. Ct. R. Annot. 641. Canon 5A(3)(d)(ii) similarlyprovides that a candidate for judicial office “shall not. . . make statements that commit or appear to committhe candidate with respect to cases, controversies orissues that are likely to come before the court.” 2007Kan. Ct. R. Annot. 642.

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The comments to section 5A(3)(d) explain:

“Section 5A(3)(d) prohibits a candidate forjudicial office from making statements thatappear to commit the candidate regardingcases, controversies or issues likely to comebefore the court. As a corollary, a candidateshould emphasize in any public statement thecandidate’s duty to uphold the law regardless ofhis or her personal views. . . . Section 5A(3)(d)does not prohibit a candidate from makingpledges or promises respecting improvements incourt administration. Nor does this Sectionprohibit an incumbent judge from makingprivate statements to other judges or courtpersonnel in the performance of judicial duties.This Section applies to any statement made inthe process of securing judicial office, such asstatements to commissions charged withjudicial selection and tenure and legislativebodies confirming appointment.” 2007 Kan. Ct.R. Annot. 642.

The determination as to whether answering anissue-related questionnaire violates either Canon5A(3)(d)(i) or (ii) turns on our interpretation of theterms “pledges,” “promises,” and “commit.” Thedecisions of other courts that have considered similarlanguage to this state’s pledges and commits clausesillustrate the ambiguity of these provisions. Thesecases vary widely in their conclusions as to whetherthe clauses cover all statements regarding disputedissues or are limited to statements that bindcandidates’ later decisions.

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For example, a federal district court in the Districtof North Dakota found that “there is little, if any,distinction between the ‘announce clause’ which wasstruck down by the United States Supreme Court inWhite, and the ‘commitment clause’ and ‘pledges andpromises clause’ contained in Canon 5A(3)(d)(i) and (ii)of the North Dakota Code of Judicial Conduct.” NorthDakota Family Alliance v. Bader, 361 F. Supp. 2d at1041. The court explained that each of theseclauses—North Dakota’s pledges clause and commitsclause, and the announce clause in White—“forbid[s]. . . speech announcing a judicial candidate’s views ondisputed legal, political, or social issues.” 361 F. Supp.2d at 1041. The federal court thus found that “[t]hereis no real distinction between announcing one’s viewson legal or political issues and making statements thatcommit, or ‘appear to commit,’ a judicial candidatewith respect to cases, controversies, and issues thatare likely to come before the court.” 361 F. Supp. 2d at1041; see also Family Trust Foundation of Kentucky,Inc. v. Kentucky Judicial Conduct Comm’n, 388 F.3d at227-28 (explaining that the state of Kentucky hadtreated its pledges and commits clauses to bar mereannouncing of particular viewpoints); Buckley v.Illinois Judicial Inquiry Board, 997 F.2d 224, 229 (7thCir. 1993) (stating that Illinois’ “‘pledges or promises’clause . . . is as overbroad as the ‘announce’ clause”).

State courts reviewing these clauses have come tothe opposite conclusion, finding clear distinctionsbetween pledges and commits clauses, on the onehand, and White’s announce clause (which barred themere expression of disputed viewpoints), on the other.This interpretation has been adopted by the highestcourts of both New York and Florida. The New YorkCourt of Appeals explained that

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“statements that merely express a viewpoint donot amount to promises of future conduct. Onthe other hand, candidates need not prefacecampaign statements with the phrase ‘Ipromise’ before their remarks may reasonablybe interpreted by the public as a pledge to act orrule in a particular way if elected. A candidate’sstatements must be reviewed in their totalityand in the context of the campaign as a whole todetermine whether the candidate hasunequivocally articulated a pledge or promise offuture conduct or decisionmaking thatcompromises the faithful and impartialperformance of judicial duties.” In re Watson,100 N.Y.2d at 298.

The Florida Supreme Court came to a similarconclusion in In re Kinsey, 842 So. 2d at 87, where thecourt held that under the state’s pledges and commitsclauses,

“a candidate may state his or her personalviews, even on disputed issues. However, toensure that the voters understand a judge’sduty to uphold the constitution and laws of thestate where the law differs from his or herpersonal belief the commentary encouragescandidates to stress that as judges, they willuphold the law.”

The most recent court to adopt this view was afederal district court in the Eastern District ofPennsylvania, which explained that the purpose ofPennsylvania’s pledges clause ‘’becomes clear whenone realizes that a judge’s job consists primarily ofdeciding cases or controversies in a particular way.”

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Pennsylvania Family Institute, Inc. v. Celluci, 521 F.Supp. 2d at 376. The court found that the pledgesclause barred judicial candidates from pledging “torule a particular way on an issue, case, or controversy”but permitted more general promises that thecandidates would “perform their judicial dutiesfaithfully and impartially.” 521 F. Supp. 2d at 376. ThePennsylvania Family Institute court similarly foundthat Pennsylvania’s commits clause was drafted “withthe goal of prohibiting judicial candidates from makingstatements that commit them to particular results.”521 F. Supp. 2d at 379.

This court has never interpreted the Kansasjudicial code’s commits clause and has considered thepledges clause on only one previous occasion. Thatcase, In re Baker, 218 Kan. 209, 211-12, 542 P.2d 701(1975), involved a challenge to the Commission’sfinding that a district judge had violated the pledgesclause by making statements during his campaign forjudicial office that he would be a “‘full time judge’” andthat he would increase judicial efficiency. This courtdisagreed with the Commission’s conclusion that thejudge’s statements violated the pledges clause,explaining:

“While the present Canon may appear broaderin its prohibition against pledges and promises,its thrust was intended to be . . . pledges andpromises which appeal to prejudices or specialinterest which are prohibited. . . . [A] pledge ofincreased efficiency such as was made here isaimed at the legitimate interests of the entireelectorate; it is one of those pledges permittedas being for the ‘faithful performance’ of ajudge’s duties.” 218 Kan. at 212-13.

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The Baker court further opined that while a “candidatefor nonjudicial office is free to announce his stand onthe issues he must pass upon in office, and to pledgehis vote on those issues[,] the judicial candidate isforbidden to enter this customary campaign arena.”218 Kan. at 213. The court noted that “the onlylegitimate area for debate is the relative qualificationsof the candidates.” 218 Kan. at 213.

As the facts underlying the case before usdemonstrate, the Commission has altered itsinterpretation of the pledges clause over the course ofthe past 33 years. When the Judicial Ethics AdvisoryPanel (the Panel) issued its advisory opinion in JE 139that the plaintiff judicial candidate in this case shouldnot answer the KJR’s questionnaire in 2006, theCommission disagreed. Citing the United StatesSupreme Court’s decision in White, 536 U.S. 765, theCommission explained in a note added about 3 ½months after the advisory opinion was issued that“judges and judicial candidates are allowed to publiclyannounce their views on legal, political, or otherissues.” 2007 Kan. Ct. R. Annot. at 673-74. Thisstatement, while consistent with White, is notnecessarily in keeping with this court’s decision inBaker, where the court explained that “promises [that]appeal to prejudices or special interest . . . areprohibited.” 218 Kan. at 212-13.

This court’s opinion in Baker was decided almostthree decades before the United States Supreme Courtissued its opinion in White, which significantlychanged the landscape of permissible judicial conductthroughout the country. Furthermore, the Bakerdecision is silent as to the scope of the commits clause.In light of this time span and of this court’s duty to

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interpret rules and statutes in a constitutional manneras long as that interpretation is not inconsistent withthe intent of the enacting authority, we find that thiscourt’s statements in Baker are not controlling as tothe proper interpretation of the clauses before ustoday.

The conclusion that our prior case law does notresolve the issue before us fails to answer the question,however, as to whether a judge or judicial candidatemay answer an issue-centered questionnaire withoutviolating Canon 5A(3)(d)(i) or (ii). The answer to thisquestion turns on what conduct is encompassed by theterms “pledge” and “promise” in the pledges clause and“commit” in the commits clause.

Webster’s Third New International Dictionary 1739(1976), defines “to pledge” as “to assure or promise theperformance of” or “to promise seriously.” “Promise”connotes similar meanings: “to engage to do or bring[something] about” or “to give ground for expectation.”Webster’s Third New International Dictionary 1815.Webster’s explains that “promise indicates the givingof a stated assurance about some future act or action.”Webster’s Third New International Dictionary 1815.

It appears from these definitions that there is aqualitative difference between stating or announcingone’s views on one hand and pledging or promising aparticular course of conduct with respect to thoseviews on the other. As the New York Court of Appealsindicated in In re Watson, “statements that merelyexpress a viewpoint do not amount to promises offuture conduct.” 100 N.Y.2d at 298. The New Yorkcourt’s interpretation of its pledges clause emphasizedthat a “candidate’s statements must be reviewed in

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their totality and in the context of the campaign as awhole to determine whether the candidate hasunequivocally articulated a pledge or promise of futureconduct or decisionrnaking that compromises thefaithful and impartial performance of judicial duties.”100 N.Y.2d at 298.

Other cases interpreting pledges clauses similar tothat in our own canons have recognized that it ispermissible under the Constitution to prohibit acandidate from making pledges or promises of certainresults in a particular case but that prohibiting awider range of conduct may fail strict scrutiny. SeePennsylvania Family Institute, Inc., 521 F. Supp. 2d at376-77; In re Kinsey, 842 So. 2d at 87; In re Watson,100 N.Y.2d at 298. These clauses—interpretednarrowly to prohibit a candidate from making pledgesand promises of certain results in particular cases, ascontrasted to statements of viewpoints accompanied byassurances that the judicial candidate will conduct hisor her judicial duties fairly and impartially—have beenheld to meet constitutional standards under the FirstAmendment. While there certainly is contraryauthority, the ambiguity in the pledges clause permitsthis court to interpret the provision in accordance withour authority and duty to construe the canonconstitutionally.

We hold that Canon 5A(3)(d)(i) prohibits acandidate for judicial office from making pledges orpromises regarding a particular controversy orregarding certain results in a particular case that isbound to come before the candidate as judge. Thisinterpretation is consistent with both this court’s dutyto construe rules in a constitutional manner, ifpossible, and this court’s duty to provide a reasonable

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interpretation within the scope of the rule’s language.The plaintiffs have not convinced this court that thelanguage used in Canon 5A(3)(d)(i) somehow limits orprevents us from narrowly interpreting the pledgesclause to pass constitutional muster.

The plaintiffs direct their primary argumentregarding the constitutionality of Canons 5A(3)(d)(i)and (ii) to the commits clause (subsection [d][ii]),contending that this clause is not ambiguous and doesnot permit a judicial candidate to answer an issue-related questionnaire without doing violence to theintent of this court in adopting the canon in question.This argument is based upon a claim that the commitsclause reaches speech broader than a pledge or apromise, barring not only statements that commit acandidate to a particular position but also statementsthat “appear to commit” the candidate to such aposition. The plaintiffs argue that narrowinterpretations of the commits clause only addconfusion because such interpretations render thecommits clause identical to the pledges clause.

In particular, the plaintiffs point to the commitsclause’s prohibition of statements committingcandidates regarding “issues,” arguing that this termindicates an intent of the drafters to reach more thatpledges or promises of certain results in a particularcase. According to the plaintiffs, the effect of the term“issues” is to essentially transform the commits clauseinto an announce clause, which was struck down bythe United States Supreme Court in White. Theplaintiffs argue that in order to narrowly interpret theclause so as to pass constitutional muster, this courtwould be required to strike the word “issues” from thelanguage of Canon 5A(3)(d)(ii).

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We are not convinced by these arguments.“Commit” connotes a similar meaning to “pledge” or“promise.” “To commit” means to “obligate or bind totake some moral or intellectual position or course ofaction” or “to pledge to some particular course or use:contract or bind by obligation to a particulardisposition.” Webster’s Third New InternationalDictionary 457. If the term is construed in accordancewith its common definition, it becomes clear that theterm invokes more than the mere announcement of anopinion. Narrowly construed, the commits clauseprohibits judicial candidates from making statementsthat bind them to a particular disposition with regardto a particular issue, a particular case, or a particularcontroversy bound to come before the candidate asjudge. It does not prohibit candidates from stating apersonal view on a disputed issue.

This interpretation is consistent not only with thecommon definition of “commit,” but also with the otherprovisions in the Kansas Code of Judicial Conduct.Canon 4 of the code, for example, states that a “judgemay speak, write, lecture, teach and participate inother extra-judicial activities concerning the law, thelegal system, the administration of justice and non-legal subjects” as long as this behavior does not “castreasonable doubt on the judge’s capacity to actimpartially as a judge.” Canon 4B and 4A(1) (2007Kan. Ct. R. Annot. 631). The commentary to thisprovision explains that judges are “encouraged” to“contribute to the improvement of the law, the legalsystem, and the administration of justice, includingrevision of substantive and procedural law andimprovement of criminal and juvenile justice.”Commentary, Canon 4B (2007 Kan. Ct. R. Annot. 631-32). We find it difficult to reconcile this provision of the

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code—which encourages debate on substantive legalissues—with the plaintiffs’ position that the commitsclause prevents judges and judicial candidates fromcommenting on any disputed legal or political issues.The fact that we abandoned this state’s announceclause in 1984, see Kansas Judicial Watch, 440 F.Supp. 2d at 1228, but continue to encourage judges’participation in extra-judicial activities furthersupports the narrow interpretation of the commitsclause that we adopt in this case.

Our interpretation of the pledges and commitsclauses strikes a balance between the canons’encouragement of judges’ engagement andparticipation in important legal discussions with thejudges’ primary responsibility of fair and impartialadjudication of disputes coming before them.Announcing a judicial candidate’s legal or politicalviewpoints is not prohibited. But a candidate whoidentifies a case or controversy or issue that is likely tocome before him or her when on the bench and whoproceeds to pledge or promise a particular result, or tocommit to a particular resolution of that case,controversy, or issue, engages in behavior inherentlyinconsistent with the faithful and impartialperformance of the duties of the judicial office.Interpreting the pledges and commits clauses in thismanner is also consistent with our obligation toconstrue court rules in a constitutional manner andwith our authority to adopt reasonable interpretationsof ambiguous court rules.

It is clear from this discussion that merelyanswering an issue-related questionnaire does notnecessarily violate Kansas’ pledges or commits clauses.At the same time, it is virtually impossible to answer

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this first certified question in a definitive mannerbecause questionnaires ask issue-related questionswith various degrees of specificity and require variousdegrees of commitment from those who respond. Forexample, it would seem that a candidate’s decision torespond to a questionnaire asking, “What is yourstance on abortion?” is qualitatively different underthe code from a candidate’s decision to respond to aquestion, “Do you vow to overturn Roe v. Wade?” Whilean answer to the first of these questions would likelybe a permissible announcement of a personal view ona disputed legal issue, an affirmative response to thesecond question would impermissibly bind a candidateto a particular legal action.

A second, perhaps less contentious example—though of equal importance when considering a judge’sduties to decide cases fairly and impartially—mightinvolve a survey that asks whether a judicial candidatewould ever grant a downward departure sentence in acriminal conviction for abuse of a child. If a candidatechose to respond to this question substantively—andparticularly if the candidate answered in thenegative—the candidate’s response would violate evenour narrow interpretations of the pledges and commitsclauses.

In summary, judges and candidates for judicialoffice may choose to answer issue-relatedquestionnaires (though they are not in any wayrequired to do so) to the extent that the questionnairescall for the candidate’s personal views on disputedlegal or political issues. Canons 5A(3)(d)(i) and (ii) doprohibit a judicial candidate from answering issue-related questions, however, when giving responseswould bind the candidate as a judge to a resolution of

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a particular case, controversy, or issue within aparticular controversy. We stress that in answeringany questionnaire, it is advisable—as the code’scomments explain—that a candidate who makes apublic statement “should emphasize . . . thecandidate’s duty to uphold the law regardless of his orher personal views” and to remain ever mindful of theimpartiality that is essential to the judicial office.Commentary, Canon 5A(3)(d) (2007 Kan. Ct. R. Annot.642).

II. DOES A JUDICIAL CANDIDATE SOLICIT “PUBLICLYSTATED SUPPORT” IN VIOLATION OF CANON 5C BYPERSONALLY COLLECTING SIGNATURES FOR HIS ORHER NOMINATION PETITION?

ANSWER: YES.

Canon 5C(2), the “solicitations clause,” states thata candidate for judicial office “shall not personally . . .solicit publicly stated support . . . . A candidate subjectto public election may, however, establish committeesof responsible persons . . . to obtain public statementsof support for his or her candidacy.” (2007 Kan. Ct. R.Annot. 643-44.)

It does not appear that this court or any other courthas interpreted this provision of the judicial canons.The ambiguity in this statement centers on what isintended by “publicly stated support” and—specificallyrelating to the certified question now beforeus—whether a judicial candidate violates thisprovision by personally collecting signatures for his orher nominating commission.

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In March 2004, the Panel issued an advisoryopinion, JE 117, which states that “Canon 5C(2) . . .prohibits a candidate for a judgeship from personallysoliciting publicly stated support. A signature on apublic document would be ‘publicly stated support.’”Neither the Commission nor the Kansas SupremeCourt have been called on to review JE 117. Advisoryopinions issued by the Panel are not binding on thiscourt. Supreme Court Rule 650(f) (2007 Kan. Ct. R.Annot. 666).

Webster’s Third New International Dictionarydefines the noun “support” in terms of its verbequivalent. “To support” means “to uphold by aid,countenance, or adherence: actively promote theinterests or cause of,” “to uphold or defend as valid,right, just, or authoritative: advocate,” or “to pay thecosts of: maintain.” Webster’s Third New InternationalDictionary 2297 (1976). These definitions illustrate“support” is generally taken to mean the promotion ofa particular person or position or the provision ofmonetary aid.

We note that in the abstract, it may theoretically bepossible that signatures on a nominating petitionwould not fall under either of these definitions. Whilea signature on a nominating petition could be intendedto demonstrate that the signor supports the particularcandidate for office, it may also mean that the signorgenerally supports people participating in the politicalprocess or running for a judicial office.

The statutory requirements of nominating petitionsin Kansas eliminate this potential ambiguity, however,and require us to answer that a judicial candidate’spersonal collection signatures for that candidate’s

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nominating petition violates Kansas’ solicitationsclause. K.S.A. 2007 Supp. 25-205(b) provides that “[n]osignature shall be counted unless it is upon a sheet”having the content of Form PP. Form PP contains thefollowing language applying to all signors: “I furtherdeclare that I intend to support the candidate hereinnamed and that I have not signed and will not signany nomination petition for any other person, for suchoffice at such primary election.” K.S.A. 2007 Supp. 25-205(c) further provides that “[e]ach signer of anomination petition shall sign but one such petition forthe same office, and shall declare that such personintends to support the candidate therein named.”

When read in conjunction with the solicitationsclause, the plain language of K.S.A. 2007 Supp. 25-205makes it clear that by personally asking someone tosign a nomination petition, a judicial candidate is“personally solicit[ing] . . . publicly stated support” inviolation of Canon 5C(2).

III. DOES THE DEFINITION OF “THE FAITHFUL ANDIMPARTIAL PERFORMANCE OF THE DUTIES OF THEOFFICE” IN CANON 5A(3)(d)(i) INCLUDE ALLCONDUCT RELEVANT TO THE CANDIDATE’SPERFORMANCE IN OFFICE?

ANSWER: YES.

The plaintiffs argue that the provision of thepledges clause that states that a candidate for judicialoffice shall not make pledges or promises “of conductin office other than the faithful and impartialperformance of the duties of the office” does notinclude all judicial conduct and is therefore too narrowto survive strict scrutiny under the First Amendment.

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See Canon 5A(3)(d)(i) (2007 Kan. Ct. R. Annot. 641).According to the plaintiffs, the pledges clause prohibitsjudicial candidates from making any pledges orpromises relating to judicial philosophy or anythingelse that would influence their actions as a judge.

This argument is not consistent with the previousconclusion that general statements relating to acandidate’s opinions as to disputed issues arepermissible under the pledges clause, nor can it bereconciled with this court’s previous interpretation ofthat clause in In re Baker, 218 Kan. 209,542 P.2d 701(1975).

In Baker, this court explained that candidates couldmake statements regarding their “health, work habits,experience and ability” because such matters were “oflegitimate concern to the electorate who must makethe choice.” Baker, 218 Kan. at 213. These topics wouldbe outside the realm of acceptable discussion under theplaintiffs’ proposed interpretation, yet this court haspermitted such topics to be discussed for more than 30years. Under our interpretation of the pledges clausearticulated in response to the first certified question inthis opinion, it is clear that such topics involvequestions as to the judge’s faithful performance of hisor her judicial duties.

We emphasize that the types of statements that theplaintiffs claim to be barred by the pledgesclause—statements regarding judicial philosophy orstatements that a particular candidate would be toughon crime—are not inconsistent with a judge’s duty tofaithfully and impartially perform the duties of judicialoffice. A judge’s identification of himself or herself asa strict constructionist does not mean that the judge

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cannot be impartial and does not guarantee aparticular result in a case any more than any otherjudicial philosophy might. A statement that a judgewill be tough on crime does not mean that the judgewill not or cannot apply the law fairly and impartially.It is only when a judge’s or judicial candidate’sstatements bind that person’s resolution of the casesthat would come before him or her that the conductbecomes impermissible under the pledges clause.

Finally, Canon 3A of the Code of Judicial Conductexplains that a judge’s “judicial duties include all theduties of the judge’s office prescribed by law.” (2007Kan. Ct. R. Annot. 624.) We interpret the “faithful . . .performance of the duties of the office,” as described bythe pledges clause (2007 Kan. Ct. R. Annot. 641), toinclude all conduct relevant to the judge’s officialactions—from judicial philosophy when deciding casesto work habits to education and ability.

IV. IS THE DEFINITION OF “APPEAR TO COMMIT” INCANON 5A(3)(d)(ii) LIMITED TO AN OBJECTIVEAPPEARANCE OF A CANDIDATE’S INTENT TOCOMMIT HIMSELF OR HERSELF?

ANSWER: YES.

The plaintiffs in this case argue that the languagein the commits clause prohibiting statements that“commit or appear to commit the candidate withrespect to cases, controversies or issues that are likelyto come before the court” involves a subjective analysisand is therefore unconstitutionally vague. See Canon5A(3)(d)(ii) (2007 Kan. Ct. R. Annot. 642). TheCommission argues that the “appear to commit”

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language indicates that an objective, reasonable-person standard is appropriate.

The Commission’s objective interpretation isconsistent with this court’s previous case law. In Statev. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984), thiscourt explained under a different provision of theKansas Judicial Code:

“The standard which federal courts use iswhether the charge of lack of impartiality isgrounded on facts that would create reasonabledoubt concerning the judge’s impartiality, not inthe mind of the judge himself, or even,necessarily, in the mind of the litigant filing themotion, but rather in the mind of a reasonableperson with knowledge of all the circumstances.[Citations omitted.]” (Emphasis added.)

During oral argument, counsel for the plaintiffsacknowledged that the “appear to commit” language inCanon 5A(3)(d)(ii) requires a similar objective analysisof the judge’s or judicial candidate’s conduct to thatdescribed in Logan.

It became clear during the parties’ argumentsbefore this court that the plaintiffs’ claim regardingobjectivity is not actually a textual argument that thecommits clause requires a subjective standard forinterpreting judicial conduct—which is contrary to theplain language of the canon and to our previousopinions interpreting such language as objective innature—but rather is a constitutional claim as to thechilling effect of regulating judicial speech. We will notconsider the merits of this argument in detail, as theconstitutionality of the commits clause is not before us

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at this time. The question over which we havejurisdiction is whether the “appear to commit”language in Canon 5A(3)(d)(ii) involves an objective orsubjective standard.

We do note, however, that taken to its logical end,the plaintiffs’ argument would imply that anyregulation of judicial speech would violate the FirstAmendment, as a listener could always understand thespeech in the wrong way. Not only is this extreme viewunsupported by the case law, but we believe that thisstate’s objective standard for reviewing judicial speechprotects against such fears, as the reasonable-personstandard involves an analysis of the conduct from theperspective of a person with knowledge of theapplicable rules and surrounding circumstances. SeeLogan, 236 Kan. at 86.

We conclude therefore that Canon 5A(3)(d)(ii)’sprohibition against statements that “appear tocommit” judicial candidates “with respect to cases,controversies or issues that are likely to come beforethe court” requires an objective analysis of the conductin question from the perspective of a reasonable personwith knowledge of all of the circumstances. See 2007Kan. Ct. R. Annot. 642.

V. DOES THE DEFINITION OF “PUBLICLY STATEDSUPPORT” IN CANON 5C(2) INCLUDE ENDORSEMENTSOF A CANDIDATE?

ANSWER: YES.

Finally, this court is called on to determine whetherthe solicitations clause of Canon 5C(2)—which statesthat a judicial candidate “shall not personally . . .

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solicit publicly stated support”—permits candidates torespond to questionnaires requested by newspapers orother media for the purpose of providing anendorsement for the upcoming election or to otherwiseseek endorsements for judicial office. See 2007 Kan.Ct. R. Annot. 643-44.

The parties in this case focus on the definitionaldifferences between “support” and “endorsements.” Wefind these terms to be synonymous. See Webster’sThird New International Dictionary 2297 (“support”),749 (“endorsement”). If there is any actual differencebetween the two terms, endorsements are a particularsubset of public support. Because the solicitationsclause explicitly prohibits judges and judicialcandidates from personally soliciting “publicly statedsupport,” the clause necessarily prohibits judicialcandidates from personally soliciting endorsements.Such solicitations must be delegated to the candidate’scampaign committee. See Canon 5C(2) (2007 Kan. Ct.R. Annot. 643-44).

Because Canon 5C(2) explicitly prohibits judgesand judicial candidates from soliciting endorsements,the answer to this certified question turns on whetherthe judge or candidate is soliciting the endorsement ormerely responding to a public questionnaire. Webster’sdefines “to solicit” as “to endeavor to obtain by askingor pleading” or “to seek eagerly or actively.” Webster’sThird New International Dictionary 2169.

The underlying facts in this case illustrate theimportance of determining whether a judicialcandidate’s conduct amounts to a solicitation of publicsupport. When a judicial candidate engages in conductdiscussed previously by personally seeking signatures

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on a nominating petition (rather than having his orher campaign solicit such signatures), such conduct isimpermissible in this state, as it amounts to a personalrequest for the signor’s endorsement of the judicialcandidate. But when a newspaper or other mediasource submits questions to a judicial candidate andthe candidate responds, and this exchange results inan endorsement, we conclude that the candidate is notactively seeking support or endorsement in violation ofthe canons. In the first example, the judicial candidateis actively seeking an endorsement. In the second, therequest originated from the media source, not thecandidate.

Judges and judicial candidates are not permittedunder the solicitations clause to personally andactively seek endorsements of their judicialcandidacies. Judges and judicial candidates mayrespond, however, to requests regarding theirviewpoints on disputed issues, as long as suchresponses do not otherwise violate the canons.

LUCKERT, J. recused.

LEBEN, J., assigned.

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APPENDIX G

PUBLISH

UNITED STATES COURT OF APPEALSTENTH CIRCUIT

No. 06-3290

[Filed April 17, 2009]_________________________________________KANSAS JUDICIAL REVIEW; )THE HONORABLE CHARLES M. HART; )THE HONORABLE ROBB RUMSEY, )

)Plaintiffs–Appellees, )

)v. )

)MIKE L. STOUT, in his official capacity as )a Member of the Kansas Commission on )Judicial Qualifications; JENNIFER L. )JONES, in her official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; NANCY )ANSTAETT, in her official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; PATRICK BRAZIL, )in his official capacity as a Member of the )Kansas Commission on Judicial )Qualifications; THEODORE B. ICE, in his )official capacity as a Member of the Kansas )Commission on Judicial Qualifications; )

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CHRISTINA PANNBACKER, in her )official capacity as a Member of the Kansas )Commission on Judicial Qualifications; )WILLIAM B. SWEARER, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )CAROLYN TILLOTSON, in her official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )ROBERT FLEMING, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )BRUCE BUCHANAN, in his official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )MARY DAVIDSON COHEN, in her official )capacity as a Member of the Kansas )Commission on Judicial Qualifications; )DAVID J. KING, in his official capacity as )a Member of the Kansas Commission on )Judicial Qualifications; JEFFREY A. )MASON, in his official capacity as )a Member of the Kansas Commission on )Judicial Qualifications; THOMAS L. )TOEPFER, in his official capacity as a )Member of the Kansas Commission on )Judicial Qualifications; EDWARD G. )COLLISTER, JR., in his official capacity as )Commission Examiner for the Kansas )Commission on Judicial Qualifications; )STANTON A. HAZLETT, in his official )capacity as Disciplinary Administrator; )FRANK D. DIEHL, in his official capacity )as Deputy Disciplinary Administrator; )ALEXANDER M. WALCZAK, in his )official capacity as Deputy Disciplinary )

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Administrator; KIMBERLY L. KNOLL, in )HER official capacity as Deputy Disciplinary )Administrator; GAYLE B. LARKIN, in her )official capacity as Admissions Attorney, )

)Defendants–Appellants.* )

------------------------- ))

ASSOCIATION OF JUDICIAL )DISCIPLINARY COUNSEL; NATIONAL )AD HOC ADVISORY COMMITTEE ON )JUDICIAL CAMPAIGN CONDUCT; )COLUMBUS BAR ASSOCIATION; DADE )COUNTY BAR ASSOCIATION; KING )COUNTY BAR ASSOCIATION; )GEORGIA COMMITTEE FOR ETHICAL )JUDICIAL CAMPAIGNS; SOUTH )DAKOTA’S SPECIAL COMMITTEE ON )JUDICIAL ELECTION CAMPAIGN )INTERVENTION; CONFERENCE OF )CHIEF JUSTICES; CONOCOPHILLIPS, )EMERSON; GENERAL ELECTRIC )COMPANY; GENERAL MILLS, INC.; )GENERAL MOTORS CORPORATION; )HALLIBURTON COMPANY; JP )MORGAN CHASE & CO.; MOTOROLA, )INC; PEPSICO; PHELPS DODGE )CORPORATION; TEXAS INSTRUMENTS )INCORPORATED; TIME WARNER INC.; )WYETH; THE BRENNAN CENTER FOR )

* Pursuant to Fed. R. App. P. 43(c)(2), we substitute Jeffery A.Mason for Robert A. Creighton, Thomas L. Toepfer for LawrenceE. Sheppard, and Kimberly L. Knoll for Gayle B. Larkin.

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JUSTICE AT NEW YORK UNIVERSITY )LAW SCHOOL, )

)Amici Curiae. )

_________________________________________ )_________________________________

Appeal from the United States District Courtfor the District of Kansas

(D.C. No. 5:06-CV-04056-JAR)_________________________________

George T. Patton, Jr. (Marisol Sanchez, Washington,D.C.; and Stephen O. Phillips, Assistant AttorneyGeneral, Topeka, Kansas, with him on the briefs), BoseMcKinney & Evans LLP, Washington, D.C., for theDefendants-Appellants.

James Bopp, Jr. (Thomas J. Marzen, Anita Y.Wondenberg, and Josiah Neeley, with him on thebriefs), Bopp, Coleson & Bostrom, Terre Haute,Indiana, for the Plaintiffs-Appellees.

_________________________________

Before LUCERO, EBEL, and HOLMES, CircuitJudges.

_________________________________

LUCERO, Circuit Judge._________________________________

Until March 1, 2009, the Kansas Code of JudicialConduct (“Code”) prohibited candidates for statejudicial office from making certain kinds of pledgesand commitments and from personally solicitingsupport for their campaigns. Kansas Judicial Review

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(“KJR”), the Honorable Charles M. Hart, and theHonorable Robb Rumsey obtained a preliminaryinjunction from the District Court for the District ofKansas forbidding enforcement of three clausescontained in the Code: (1) the Pledges Clause, (2) theCommits Clause, and (3) the Solicitation Clause(together “the old canons”). The Kansas Commissionon Judicial Qualifications (“Commission”), a defendantbelow, appealed the grant of the preliminaryinjunction.

After hearing the matter at oral argument, wecertified five questions of law to the Kansas SupremeCourt. In December 2008, the Kansas Supreme Courtanswered our certified questions. Shortly thereafter,that court adopted a new Code of Judicial Conduct,which includes significantly revised versions of thePledges and Commits Clauses and eliminates theSolicitation Clause (the “new canons”). The new canonswent into effect and superseded the old canons onMarch 1, 2009.

We must now decide whether adoption of the newcanons moots the plaintiffs’ challenge to the oldcanons. We conclude that it does. Exercisingjurisdiction pursuant to 28 U.S.C. § 1292(a)(1), wevacate the preliminary injunction, dismiss the appealfor lack of jurisdiction, and remand to the district courtfor dismissal in accordance with this opinion.

I

Our prior opinion in this case sets forth therelevant factual background, and we repeat only whatis necessary to resolve the appeal. Kan. JudicialReview v. Stout (“Stout II”), 519 F.3d 1107, 1111-14

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(10th Cir. 2008). Kansas provides for popular electionof some judges, holding partisan political contests forjudicial office in 14 of its 31 judicial districts. In 1995,the Kansas Supreme Court adopted the Code toregulate the behavior of judges and judicialcandidates. Kan. Sup. Ct. R. 601A (1995). Until March1, 2009, the Code contained the three canons at issuein this appeal.

Canon 5A(3)(d)(i) provided that judicial candidatesshall not “make pledges or promises of conduct in officeother than the faithful and impartial performance ofthe duties of the office” (“Pledges Clause”). Canon5A(3)(d)(ii) provided that judicial candidates shall not“make statements that commit or appear to committhe candidate with respect to cases, controversies orissues that are likely to come before the court”(“Commits Clause”). Canon 5C(2) provided that “[a]candidate shall not personally . . . solicit publiclystated support,” although candidates could establishcommittees to solicit and accept support and campaigncontributions on their behalf (“Solicitation Clause”).

In May 2006, KJR, Rumsey, and Hart filed acomplaint against the Commission in federal districtcourt, seeking only prospective injunctive anddeclaratory relief, and moved for a preliminaryinjunction. They requested that enforcement of thePledges, Commits, and Solicitation Clauses beenjoined as unconstitutionally overbroad and vague.They claimed that the Clauses chilled candidates’political speech, restricting the free exchange of viewsbetween candidates and potential voters. Additionally,plaintiffs argued that the Clauses wereunconstitutional as applied to them.

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The district court granted a preliminary injunctionas to the Pledges, Commits, and Solicitation Clauses.Kan. Judicial Watch v. Stout (“Stout I”), 440 F. Supp.2d 1209, 1241 (D. Kan. 2006). The district court foundthat all plaintiffs had standing to challenge the oldcanons and that their claims were ripe for review. Italso found that plaintiffs were likely to succeed on themerits of their claims of unconstitutionality and thatthe other preliminary injunction factors weighed intheir favor. The Commission timely appealed.1

After our previous oral argument, we issued anopinion rejecting the Commission’s arguments thatKJR lacked standing and that the case was not ripe.Stout II, 519 F.3d at 1115-18. As noted, we alsocertified five questions to the Kansas Supreme Courtbecause the plaintiffs’ claims “rest[ed] on sufficientlynovel and determinative questions of state law.” Id. at1119-20, 1122.2

In December of last year, in a thoughtful andcomprehensive opinion, the Kansas Supreme Courtanswered our certified questions. Kan. Judicial Review

1 Before the district court, the plaintiffs also challenged Canon 3E,which requires recusal in cases where a judge’s “impartialitymight reasonably be questioned.” The district court denied apreliminary injunction with respect to that canon, and theplaintiffs do not appeal that decision. Accordingly, we express noopinion as to whether the challenge to Canon 3E is moot. Thatquestion will be before the district court on remand.

2 As acknowledged by all parties, the preliminary injunctionissued by the district court erroneously enjoined enforcement of anunchallenged portion of the Solicitation Clause. Accordingly, wevacated that aspect of the preliminary injunction. Stout II, 519F.3d at 1122.

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v. Stout (“Stout III”), 196 P.3d 1162 (Kan. 2008). Thecourt advised us that it was in the process ofconsidering proposed amendments to the Code, id. at1171, and proceeded to interpret the old canonswithout speculating as to the possible content of thenew, id. at 1171-72. Upon receipt of the KansasSupreme Court’s opinion, we ordered supplementalbriefing. Our order specifically directed the parties toaddress the potential effect on this court’s jurisdictionof the forthcoming amendments to the Code.

In January 2009, the Kansas Supreme Courtamended the Code by adoption of Rule 601B, whichwent into effect on March 1, 2009. Kan. Sup. Ct. R.601B (2009) (superseding Kan. Sup. Ct. R. 601A(1995)). That Rule supersedes and replaces the canonsthat were extant at the time of initiation of thisappeal. Rule 601B substantially alters the landscape.First, the new canons completely eliminate thechallenged portion of the Solicitation Clause. Second,they materially narrow the language and scope of thePledges and the Commits Clauses.

II

Article III delimits the jurisdiction of federal courts,allowing us to consider only actual cases orcontroversies. U.S. Const. art. III, § 2, cl. 1.Accordingly, a plaintiff must possess a personalinterest in the outcome of a case at all stages of theproceedings. Arizonans for Official English v. Arizona,520 U.S. 43, 67 (1997) (“[A]n actual controversy mustbe extant at all stages of review, not merely at thetime the complaint is filed.” (quotation omitted)). If,during the pendency of the case, circumstances changesuch that the plaintiff’s legally cognizable interest in

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a case is extinguished, the case is moot, and dismissalmay be required. See Citizens for Responsible Gov’tState Political Action Comm. v. Davidson, 236 F.3d1174, 1182-83 (10th Cir. 2000). A party claiming thatthere is no longer a live case or controversy bears theburden of demonstrating mootness. ChihuahuanGrasslands Alliance v. Kempthorne, 545 F.3d 884, 891(10th Cir. 2008) (“If a party to an appeal suggests thatthe controversy has, since the rendering of judgmentbelow, become moot, that party bears the burden ofcoming forward with the subsequent events that haveproduced that alleged result.” (quotation omitted)).

In deciding whether a case is moot, “[t]he crucialquestion is whether granting a present determinationof the issues offered . . . will have some effect in thereal world.” Davidson, 236 F.3d at 1182 (quotationomitted). When it becomes impossible for a court togrant effective relief, a live controversy ceases to exist,and the case becomes moot. United States v. Hahn,359 F.3d 1315, 1323 (10th Cir. 2004) (en banc).

Generally, repeal of a challenged statute causes acase to become moot because it extinguishes theplaintiff’s legally cognizable interest in the outcome,rendering any remedial action by the court ineffectual.Davidson, 236 F.3d at 1182 (“The parties have nolegally cognizable interest in the constitutional validityof an obsolete statute.”); see Nat’l Adver. Co. v. City &County of Denver, 912 F.2d 405, 412 (10th Cir. 1990)(“A declaratory judgment on the validity of a repealedordinance is a textbook example of advising what thelaw would be upon a hypothetical state of facts.”(quotation omitted)). There is, however, an exceptionto that rule in cases where the evidence “indicate[s]that the legislature intends to reenact the prior

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version of the disputed statute.” Camfield v. City ofOklahoma City, 248 F.3d 1214, 1223-24 (10th Cir.2001).

Applied to the facts of this case, there can be nodoubt that the plaintiffs’ challenge to the SolicitationClause is moot. As plaintiffs readily concede, inadopting the new canons, the Kansas Supreme Courtcompletely eliminated the challenged portion of theClause. Appellee Supplemental Resp. Br. at 6 (“Therevised Code of Judicial Conduct appears to eliminateentirely the challenged portions of the [SolicitationClause].”); see Davidson, 236 F.3d at 1182. And thereis no suggestion whatsoever that the court intends toreadopt the portion of the Clause at issue.

Although the new canons do not entirely eliminatethe Pledges and Commits Clauses, compare Canon5A(3)(d) (1995), with Canon 4.1(A)(6) (2009), weultimately conclude that plaintiffs’ challenges to theseclauses are moot as well. First, any injury caused bythe old Pledges and Commits Clauses has ceasedbecause they are no longer in effect—the old canonsthus cannot possibly chill the future speech of theplaintiffs. See Compl. ¶¶ 3, 28, 38, & 95 (claiming thatthe Pledges and Commits Clauses “chill” protectedspeech). Second, a prospective injunction could noteffectively redress the claimed injury because, asnoted, the old canons can no longer chill the plaintiffs’speech. See Compl. ¶ 95 (seeking a prospectiveinjunction forbidding enforcement of the Pledges andCommits Clauses); see also Hahn, 359 F.3d at 1323;Davidson, 236 F.3d at 1182.

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Plaintiffs attempt to persuade us that theirchallenges remain live. For the following reasons, wedisagree.

A

First, regarding the Pledges and Commits Clauses,the plaintiffs contend that the new canons arematerially the same as the old. See Ne. Fla. Chapter ofAssociated Gen. Contractors of Am. v. City ofJacksonville, 508 U.S. 656, 662 n.3 (1993) (providingthat a case is not moot when a new ordinance “issufficiently similar to the repealed ordinance that it ispermissible to say that the challenged conductcontinues”); Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d1515, 1520 (11th Cir. 1992) (“[A] superseding statuteor regulation moots a case only to the extent that itremoves challenged features of the prior law. To theextent that those features remain in place, andchanges in the law have not so fundamentally alteredthe statutory framework as to render the originalcontroversy a mere abstraction, the case is not moot.”).We cannot agree. The new canons contain significantnarrowing language not present in the old canons.This change is fundamental to a degree that impactsour jurisdiction over the plaintiffs’ challenges to theold Pledges and Commits Clauses. Compare Canon4.1(A)(6) (2009) (providing that judicial candidatesshall not, “in connection with cases, controversies, orissues that are likely to come before the court, makepledges, promises, or commitments that areinconsistent with the impartial performance of theadjudicative duties of judicial office” (first emphasisadded)), with Canon 5A(3)(d) (1995) (providing thatjudicial candidates shall not “(i) make pledges orpromises of conduct in office other than the faithful

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and impartial performance of the duties of office; or(ii) make statements that commit or appear to committhe candidate with respect to cases, controversies orissues that are likely to come before the court . . . .”(emphases added)).

This narrowing language takes on particularsignificance in the context of a pre-enforcement facialchallenge because the plaintiffs’ alleged injury is, byits nature, inchoate. We require such an injury to bedefined with precision. See Initiative & ReferendumInst. v. Walker, 450 F.3d 1082, 1088 (10th Cir. 2006)(en banc) (“By definition, the injury [in chilling cases]is inchoate: because speech is chilled, it has not yetoccurred and might never occur, yet the governmentmay have taken no formal enforcement action.”). In therelated context of standing, we have held that mereallegations of a subjective “chill” are inadequate toestablish an injury in fact justifying prospective relief.Id. (citing Laird v. Tatum, 408 U.S. 1, 13-14 (1972)). “Ifall it took to summon the jurisdiction of the federalcourts were a bare assertion that, as a result ofgovernment action, one is discouraged from speaking,there would be little left of the Article III threshold inFirst Amendment cases.” Id. at 1089. For that reason,we have observed that when “the plaintiff’s allegedinjury is a chilling effect on the freedom of speech, thestanding inquiry is particularly delicate.” Id. at 1088.This inquiry is no less refined when the issue is one ofmootness rather than standing. See U.S. ParoleComm’n v. Geraghty, 445 U.S. 388, 397 (1980)(“[M]ootness [is] the doctrine of standing set in a timeframe: The requisite personal interest that must existat the commencement of the litigation (standing) mustcontinue throughout its existence (mootness).”(quotation omitted)). But see Friends of the Earth, Inc.

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v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000)(noting that “the description of mootness as ‘standingset in a time frame’ is not comprehensive”).

While we do not prejudge the issue, the narrowinglanguage of the new canons appears to substantiallyreduce the potential that new Canon 4.1(A)(6) will chillthe plaintiffs’ future speech. Consequently, theinchoate injury alleged prior to adoption of the newcanons has changed. Upon comparison of the newcanons to the old, we are inescapably driven toconclude that the differences are “too fundamental topreserve our jurisdiction over the” plaintiffs’challenges to the old Pledges and Commits Clauses.See Davidson, 236 F.3d at 1182.

B

The plaintiffs advance a second argument inseeking to avoid a mootness determination: They willsuffer collateral consequences should we vacate thepreliminary injunction. See In re Hancock, 192 F.3d1083, 1084 (7th Cir. 1999); Dailey v. Vought AircraftCo., 141 F.3d 224, 228 (5th Cir. 1998); Kirkland v.Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1370(11th Cir. 1989). Specifically, plaintiffs contend thatthey may be subject to judicial discipline for speechmade under the protection of the preliminaryinjunction. We disagree with this hypothesis as well.3

3 In their argument, plaintiffs do not distinguish between KJRand Hart and Rumsey. Unlike Hart and Rumsey, KJR is notdirectly subject to the Code. Stout II, 519 F.3d at 1115. Becauseof our ultimate conclusion that the possibility of collateralconsequences is too speculative and remote to continue ourjurisdiction, we do not consider whether the threat of judicial

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Under the collateral consequence doctrine, a case isnot moot if there remains a secondary or collateralinjury despite the resolution of a plaintiff’s primaryclaim. See Sibron v. New York, 392 U.S. 40, 57 (1968).“[M]ootness [remains] if no consequences can beforeseen or if foreseeable possible consequences seemremote.” 13C Charles Alan Wright, Arthur R. Miller &Edward H. Cooper, Federal Practice and Procedure:Jurisdiction and Related Matters § 3533.3.1 at 124 (3ded. 2008) (emphasis added); see Davidson, 236 F.3d at1184 (rejecting application of collateral consequencesdoctrine even though “the State may, at someindefinite point in the future, begin prosecutingpersons or organizations for pre-repeal violations”). Weconsider plaintiffs’ allegations of collateralconsequences as so imbued with speculation andremoteness that they cannot serve as a foundation forour circumspect jurisdictional inquiry. The prospectthat the Commission might initiate disciplinaryproceedings at some point in the future regardingspeech engaged in under the protection of thepreliminary injunction is inherently unlikely and thusnot foreseeable. An attempt to discipline Hart orRumsey for such speech would raise such immediateand serious due process concerns that such aprobability is less than remote. We are confident thaton that front, the Commission will let sleeping dogs lie.

Classically, the collateral consequences doctrine isapplicable as to official government sanctions oradjudications that have already occurred. See, e.g.,Sibron, 392 U.S. at 57-58 (criminal conviction);

discipline against Hart and Rumsey would suffice to create apresent controversy as to KJR.

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Mingkid v. U.S. Atty. Gen., 468 F.3d 763, 768-69 (11thCir. 2006) (immigration judge’s determination thatasylum application was frivolous). In the cases reliedupon by the plaintiffs, the collateral consequenceswere caused by an official sanction already in place.See In re Hancock, 192 F.3d at 1084 (suspension oflicense to practice before bankruptcy court); Dailey,141 F.3d at 229 (disbarment); Kirkland, 884 F.2d at1370 (revocation of pro hac vice status). By contrast,we do not have before us any official adjudication thatHart or Rumsey violated the old canons; quite to thecontrary, enforcement of the Clauses was enjoinedbefore they were applied against the plaintiffs.Because there has been no official sanction andnothing in the record suggests that disciplinaryproceedings are threatened, we reject plaintiffs’request that we keep this case going.

III

When a case becomes moot on appeal, the ordinarycourse is to vacate the judgment below and remandwith directions to dismiss. Chihuahuan GrasslandsAlliance, 545 F.3d at 894. Even so, the plaintiffs argue,only the appeal should be dismissed, not theunderlying challenge to the old canons. Plaintiffsreason that they “must and will pursue a permanentinjunction to prevent the collateral consequence ofjudicial discipline for the speech engaged in under theprotection” of the preliminary injunction. Because wehave rejected the likelihood of collateral consequences,we perceive no reason to deviate from our generalpractice of vacatur in this case. Were the remote andunlikely to happen and Hart or Rumsey be chargedwith violating the old canons while acting under theprotection of the preliminary injunction, they remain

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free to challenge such a proceeding. But, if theplaintiffs wish to challenge the new canons, they mustfile a new complaint.

IV

For the reasons stated, we VACATE thepreliminary injunction, DISMISS the appeal for lackof jurisdiction, and REMAND to the district court forDISMISSAL in accordance with this opinion.