Siefert v. Alexander

608 F.3d 974, 2010 U.S. App. LEXIS 12057, 2010 WL 2346659
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 14, 2010
Docket09-1713
StatusPublished
Cited by59 cases

This text of 608 F.3d 974 (Siefert v. Alexander) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Siefert v. Alexander, 608 F.3d 974, 2010 U.S. App. LEXIS 12057, 2010 WL 2346659 (7th Cir. 2010).

Opinions

TINDER, Circuit Judge.

The plaintiff, John Siefert, is an elected Wisconsin circuit court judge in Milwaukee County. He would like to state his affiliation with the Democratic Party, endorse partisan candidates for office, and personally solicit contributions for his next election campaign, but is concerned because these activities are prohibited by the Wisconsin Code of Judicial Conduct. Rather than violate the code and face discipline, Siefert filed suit under 42 U.S.C. § 1983 for declaratory and injunctive relief against the members of the Wisconsin Judicial Commission, the body that enforces the Code of Judicial Conduct. After considering the parties’ cross-motions for summary judgment, the district court granted Siefert’s motion, declared the rules prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates, and personally soliciting contributions unconstitutional, and enjoined the defendants from enforcing these rules against Siefert. The Commission appeals. We affirm the district court’s holding on the partisan affiliation ban but reverse the district court’s ruling that the bans on endorsing partisan candidates and personally soliciting contributions are unconstitutional.

I. Background

Plaintiff John Siefert was first elected to the circuit court for Milwaukee County in 1999 and has served as a judge since. Prior to being elected a circuit court judge, he was a member of the Democratic Party and participated in a number of partisan activities. He served as a delegate to the Democratic National Convention, twice ran as a Democrat for the state legislature, twice ran as a Democrat for county treasurer (holding that office from 1990 to 1993), and served as an alternate elector for President Bill Clinton in 1992. He would like to once again join the Democratic Party and list his party membership in response to candidate questionnaires. He believes membership in the Democratic Party would communicate his desire for social justice and peace, but does not wish to appeal to partisanship as a candidate or as a judge. Siefert would also like to endorse partisan candidates for office. At the time he initiated this suit, he sought to endorse now-President Barack Obama; he expressed a desire to endorse Jim Doyle for governor of Wisconsin in 20101 and President Obama if he decides to run for reelection in 2012. Finally, Siefert would like to solicit contributions for his upcoming 2011 campaign by making phone calls to potential contributors, signing his name to fundraising letters, and by personally inviting potential donors to fundraising events. He would continue to use a campaign committee to handle the ministerial tasks of fundraising and to collect and report donations.

The defendants are the executive director and members of the Wisconsin Judicial Commission (the “Commission”). The Commission investigates and prosecutes potential violations of the Wisconsin Code of Judicial Conduct. The Commission also issues, from time to time, advisory opinions on the interpretation of the Code of Judicial Conduct.

[978]*978Wisconsin conducts two sets of elections; one set (i.e., a primary and then general election) is held in the spring for positions filled through nonpartisan elections and the other is held in the fall for the partisan elected positions. Nonpartisan officeholders include judges of the circuit courts, court of appeals, and supreme court, as well as the state superintendent of public instruction, county board members, county executives, and municipal and school district officers. The election for these positions is nonpartisan in the sense that all candidates (who meet the eligibility requirements) appear on the ballot without party identification. Similarly, political parties have no power to slate candidates in the nonpartisan election. Wis. Const, art. VII, § 9; Wis. Stat. §§ 5.58, 5.60. A spring primary is necessary if more than two candidates meet the nomination requirements for a nonpartisan position. The top two vote-getters in the primary proceed to the nonpartisan April election, which is, in essence, a runoff. Wis. Stat. § 8.11; Wis. Blue Book 884 (2009-10). If only one or two candidates meet the nomination requirements, no primary is necessary. (Practically, it appears that incumbent judges, at least recently, are rarely challenged, and if so, are challenged by one opponent only and thus subject to only one election in April. See Laurel Walker, Judicial Selections Not Quite Noiir-Partisan, Milwaukee Journal Sentinel, Dec. 25, 2009, available at http://www.jsonline.com/ news/statepolitics/80121422.html). Voting for offices filled through partisan elections, including sheriff and district attorney, takes place in the fall with a primary election to choose a single candidate for each of the two major parties, followed shortly thereafter by a head-to-head partisan general election. Wis. Blue Book 884; see Wis. Stat. §§ 5.64, 8.16.

Party affiliation has been absent from the ballot in Wisconsin’s judicial elections since 1913, and the district court found, based on the work of a historian employed by the Commission, that a tradition of nonpartisanship had taken hold among judicial candidates even earlier. However, Wisconsin did not expressly prohibit judges from joining a political party until 1968, when it adopted a comprehensive code of judicial conduct. See Charles D. Clausen, The Long and Winding Road: Political and Campaign Ethics Rules for Wisconsin Judges, 83 Marq. L.Rev. 1, 2-3 (1999). In October 2004, the supreme court amended the code to extend a number of rules to cover judicial candidates in addition to sitting judges, including the prohibitions on party membership, partisan endorsements, and personal solicitation of campaign contributions. See Wisconsin Supreme Court Order 00-07, 2004 WI134 (Oct. 29, 2004).

The plaintiff challenges three distinct provisions of the rules adopted in 2004. The challenged provisions are all contained in Wisconsin Supreme Court Rule 60.06:

SCR 60.06 A judge or judicial candidate shall refrain from inappropriate political activity.
(2) Party membership and activities.
(a) Individuals who seek election or appointment to the judiciary may have aligned themselves with a particular political party and may have engaged in partisan political activities. Wisconsin adheres to the concept of a nonpartisan judiciary. A candidate for judicial office shall not appeal to partisanship and shall avoid partisan activity in the spirit of a nonpartisan judiciary.
(b) No judge or candidate for judicial office or judge-elect may do any of the following:
1. Be a member of any political party.
2. Participate in the affairs, caucuses, promotions, platforms, endorse-[979]*979merits, conventions, or activities of a political party or of a candidate for partisan office.
3. Make or solicit financial or other contributions in support of a political party’s causes or candidates.
4. Publicly endorse or speak on behalf of its candidates or platforms.

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Bluebook (online)
608 F.3d 974, 2010 U.S. App. LEXIS 12057, 2010 WL 2346659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siefert-v-alexander-ca7-2010.