9th Circuit: Alaska Right to Life’s Challenge to State Code of Judicial Conduct Not Justiciable on Current Record
A unanimous Ninth Circuit Court of Appeals panel has issued a ruling in Alaska Right to Life Political Action Committee v. Feldman, No. 0535902 (9th September 21, 2007). This case was filed by James Bopp, Jr. et. al. on behalf of AK Right to Life PAC. The opinion’s introduction is copied below.
In October 2002, the Alaska Right to Life Political Action Committee (“ARL PAC”) circulated a questionnaire to the twelve Alaska state court judges who were seeking retention votes in the then-upcoming November 2002 election. The questionnaire solicited the judges’ views on a variety of legal and political issues such as abortion and assisted suicide. Only four judges responded. None indicated a view with respect to any of the positions listed in the questionnaire but all provided explanations for their decisions not to participate, including concern that responding would require subsequent recusal, provisions of the Alaska Code of Judicial Conduct (“Code”) that prohibit judges from pledging, promising, or committing to particular conduct in judicial office, one judge’s personal code of judicial ethics, and “advice from Judicial Conduct Commission in my state.”
In October 2004, approximately one month prior to Alaska’s 2004 general election, ARL PAC and individual plaintiff-appellant Michael Miller (collectively “Plaintiffs”) brought suit against eight named members of the Alaska Commission on Judicial Conduct (“Commission”) and six named members of the Disciplinary Commission of the Alaska Bar Association (“Bar”), challenging the constitutionality of three provisions in the Alaska Code of Judicial Conduct (“Code”): (1) requiring disqualification from any proceeding in which a judge’s impartiality might reasonably be questioned; (2) prohibiting judicial candidates from making pledges or promises of particular conduct in judicial office; and (3) restricting statements that commit or appear to commit a judicial candidate to a particular view or decision regarding a case likely to come before the court. ARL PAC and Miller alleged that the two canons containing these three restrictions chilled judicial candidates from responding to their survey, in violation of the First Amendment. ARL PAC did not circulate a questionnaire to any of the ten judges who were seeking retention in the 2004 election prior to the filing of the Complaint, and neither the Commission nor the Bar ever threatened to enforce any provision of the Code against judges who might have chosen to respond to such a questionnaire.
The district court nonetheless concluded that ARL PAC and Miller’s suit was justiciable. On the merits, the court invalidated the canon that prohibits pledges and promises of conduct in judicial office and statements that commit or appear to commit a judicial candidate to a particular view or decision but rejected Plaintiffs’ challenge to the canon requiring disqualification from proceedings in which a judge’s impartiality might reasonably be questioned. The parties cross-appealed. ARL PAC and Miller also appealed the district court’s orders denying their motion for attorneys’ fees and costs against the Commission and granting Defendant-Appellee Steve Van Goor’s motion for attorneys’ fees and costs against Plaintiffs.
Because ARL PAC and Miller’s constitutional challenges were not ripe, we vacate the district court’s order and judgment and remand with instructions to dismiss. Without a more fully developed factual record, including evidence of some real threat of enforcement, and without a showing that withholding federal adjudication would impose hardship on Plaintiffs, we conclude that the district court should have declined jurisdiction for lack of a justiciable case or controversy. This conclusion renders moot Plaintiffs’ appeal from the order denying its motion for attorneys’ fees and costs against the Commission and their motion to dismiss the portion of their appeal regarding their challenge to the constitutionality of Alaska’s disqualification clause. We affirm the district court’s order granting attorney’s fees and costs to Van Goor.