Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars -  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

In reviewing the questionnaire, I am glad that I myself am not an applicant — we are asking applicants to gather and present a large quantity of information about themselves in a short period of time.  I hope that well-qualified attorneys will not be deterred by this process.  There is, of course, a delicate balance to strike: on the one hand, we do not wish to deter applicants through an unduly onerous process; but, on the other hand, it is critical for the Commission to have adequate information to assess the competence and integrity of all of the candidates for such an important position of public trust.  I hope that we have struck the balance appropriately.

The prior decision seems distinguishable to me given the statute’s explicit reference to closing for a religious purpose. It’s hard, in light of that, not to see the statute as violating current Establishment Clause doctrines.

These cases tend to turn on some ascription (often fictional) of a religious or secular purpose to the state.  FFRF will have to show that the recognition of the Good Friday holiday has a religious purpose or amounts to an endorsement of Christianity. It may well lose because a court will conjure some secular justification for recognition of the holiday, e.g, that the day also known as Good Friday has become a traditional opening to the spring vacation.

My own view is that there is no sense to this. Spinning some secular justification for what is a religious holiday is unseemly, at best, and disrespectful of the religious tradition in question, at worst. The colleges are recognizing that this is a day with religious significance for most of its employees and is responding to their desire to have that day off.

My own view is that this ought not to raise Establishment Clause concerns. While it may raise an issue regarding accommodation of the religious holidays of other faith traditions, it does not advance or endorse religion in a way that ought to be constitutionally proscribed. A non-Christian suffers some burden because a state facility is closed on a day when the majority is observing a religious holiday, e.g.,  annoyance at the unavailability of certain services or confirmation of one’s minority status.

But this seems to me to be indistinguishable from the harm that religious adherents claim when the state, for secular reasons, acts in a way that is inconsistent with their beliefs and practices. It cannot be prevented in an even handed manner and we ought not to try.

Cross posted at Prawfsblawg and Shark and Shepherd.

Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.

He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.

In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.

But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?

Steve’s counterpart in the Western District, Erik Peterson (who is also a Marquette alum), has not yet announced his plans.

District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”

As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose.

To exclude religious perspectives on content that the forum otherwise permits is impermissable viewpoint discrimination. In a forthcoming piece in the Mississippi Law Journal, I argue that there is no epistemological basis for distinguishing worship from other forms of discourse.

Judge Adelman may not agree. Although he held that the Regents had not shown that the specific activities of the RCF were outside the purpose of the forum, he suggested that the University could choose to exclude at least certain types of worship because “while worship may technically be within the forum’s broad purposes” the University might conclude that “its value to the forum is less than other forms of expression.” The UW, in his view, could “decline to fund activities involving nothing more than mechanical praise, provided that it does not simultaneously fund secular activities that lack a discussion component.”

This is where we part ways. I argue in the Mississippi piece that worship is unlikely to be devoid of assertions about temporal matters and claims about how our individual and communal lives ought to be lived. While a forum could be defined to require, as Judge Adelman would have it, “back and forth discussion of an idea,” it is unlikely to be. It seems implausible that segregated fees in the UW system are made available only to expressive activities in which all sides participate and each idea expressed is subject to critical examination.

If the point is that worship or sectarian speech is inherently less valuable or may be excluded from the “purpose” of a forum, my view is that, to exclude such speech on that basis, would be prohibited viewpoint discrimination. Judge Adelman disagrees, seeing it as content discrimination–something that the government is permitted to do in limited purpose public forums.

I don’t think so. If worship or sectarian speech provides a perspective on something on which secular perspectives are permitted, then excluding the latter is viewpoint discrimination. Judge Adelman’s suggestion that the University can decide that the latter approach is less valuable is precisely what the Constitution forbids.

The right result but some troubling dicta. It’ll be interesting to see what the next round brings and, given what seems to be ongoing tension between the UW and the RCF, there is likely to be another round.

Although the district has now changed its policy to require that all groups be charged, it has grandfathered those users for whom fees have already been waived, thus perpetuating any unconstitutional distinction between religious and nonreligious users.

There certainly may be other facts that I am not aware of, but it seems to me that the district is on awfully shaky ground. The United States Supreme Court, in one unanimous and two rather sharply divided opinions, has made clear that, if government establishes a limited purpose public forum (as Sun Prairie has done), it may not exclude religious uses that are otherwise within the scope of the forum. This, it has held, constitutes viewpoint discrimination and is unconstitutional.

The church’s use would seem to fall within the district’s very broad public use policy, and it is hard to see why waiving fees for all uses except religious ones would not constitute viewpoint discrimination.

Maybe the district can save itself by arguing that, while its discrimination against religious groups was impermissible, it can justify charging the church because it ran afoul of another district policy prohibiting the waiver of fees for groups who discriminate in membership on the basis of religious affiliation or other prohibited criteria. It might argue that the fees are justified if the use is not open to the entire community.

The problem with that approach is that the church, while it admits that it discriminates on the basis of religious affiliation in accepting members (as do virtually all churches and religious groups), alleges that the meetings in question are open to all children.

In the unlikely event that you see Sun Prairie’s prospects in this case on the prediction markets, go short.