WI: Judge Wins Right to Join Democratic Party

Bopp, Coleson & Bostrom
1 South 6th Street
Terre Haute, IN 47807-3510

Monday, June 14, 2010
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685

Judge Wins Right to Join Democratic Party

A Wisconsin ban on judges belonging to political parties was declared unconstitutional today by the federal appeals court in Chicago. The plaintiff in the case, Milwaukee County Circuit Judge John Siefert, had sought the right to join the Democratic party, which was prohibited by a provision of the Wisconsin Code of Judicial Conduct, a Wisconsin regulation governing the conduct of judges on and off the bench.

The party membership ban has been enjoined since last year, when a federal district court ruled that allowing voters to have “more rather than less information advances democratic values.” Writing for a unanimous panel of the Seventh Circuit Court of Appeals, Judge John Tinder agreed, noting that while Wisconsin had prohibited political party membership, it allowed judges to belong to other organizations, such as the Sierra Club or Mothers Against Drunk Driving, that take positions on political issues.

James Bopp, Jr., lead counsel for the plaintiffs, said he was pleased but not surprised that the court had invalidated the party membership ban. “The U.S. Supreme Court that said judicial candidates have full First Amendment protection for their political speech. Stating a party preference is just a shorthand for announcing your political views, and the court today rightly found that this was protected political speech.” Bopp, an expert in campaign regulations, successfully argued a case in 2007 challenging separate provisions of Wisconsin’s Code of Judicial Conduct, as well as the 2002 U.S. Supreme Court case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which forms the basis for Siefert’s suit.

The court also upheld two other judicial canons challenged by Judge Siefert. One canon, which prohibits judicial candidates from personally soliciting campaign contributions, puts today’s decision in conflict with decisions of two other federal appeals courts, which have found bans on personal solicitation by judicial candidate unconstitutional. The court was split on the third canon, which prohibits judicial candidates from making endorsements for partisan but not for non-partisan races. Two judges held this provision to be constitutional. Judge Ilana Rovner, writing in dissent, argued that the state could not legitimately allow judges to endorse in some cases but not others. “Once Wisconsin greased the slope for non-partisan endorsements,” Judge Rovner wrote, “it should not have been surprised that partisan endorsements could come sliding after.”

The case is Siefert v. Alexander, et al., 3:08-cv-126. Copies of the pleadings and the Court’s order are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Judicial Accountability Project” link.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.