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Kansas Judicial Review v. Stout

April 17, 2009

KANSAS JUDICIAL REVIEW; THE HONORABLE CHARLES M. HART; THE HONORABLE ROBB RUMSEY, PLAINTIFFS--APPELLEES,
v.
MIKEL 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; 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; JEFFERY 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 ADMINISTRATOR; KIMBERLY L. KNOLL, IN HER OFFICIAL CAPACITY AS DEPUTY DISCIPLINARY ADMINISTRATOR; GAYLE B. LARKIN, IN HER OFFICIAL CAPACITY AS ADMISSIONS ATTORNEY, DEFENDANTS--APPELLANTS.*FN1
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 JUSTICE AT NEW YORK UNIVERSITY LAW SCHOOL, AMICI CURIAE.



Appeal from the United States District Court for the District of Kansas (D.C. No. 5:06-CV-04056-JAR).

The opinion of the court was delivered by: Lucero, Circuit Judge.

PUBLISH

Before LUCERO, EBEL, and HOLMES, Circuit Judges.

Until March 1, 2009, the Kansas Code of Judicial Conduct ("Code") prohibited candidates for state judicial office from making certain kinds of pledges and commitments and from personally soliciting support for their campaigns. Kansas Judicial Review ("KJR"), the Honorable Charles M. Hart, and the Honorable Robb Rumsey obtained a preliminary injunction from the District Court for the District of Kansas forbidding enforcement of three clauses contained in the Code: (1) the Pledges Clause, (2) the Commits Clause, and (3) the Solicitation Clause (together "the old canons"). The Kansas Commission on Judicial Qualifications ("Commission"), a defendant below, appealed the grant of the preliminary injunction.

After hearing the matter at oral argument, we certified five questions of law to the Kansas Supreme Court. In December 2008, the Kansas Supreme Court answered our certified questions. Shortly thereafter, that court adopted a new Code of Judicial Conduct, which includes significantly revised versions of the Pledges and Commits Clauses and eliminates the Solicitation Clause (the "new canons"). The new canons went into effect and superseded the old canons on March 1, 2009.

We must now decide whether adoption of the new canons moots the plaintiffs' challenge to the old canons. We conclude that it does. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we vacate the preliminary injunction, dismiss the appeal for lack of jurisdiction, and remand to the district court for dismissal in accordance with this opinion.

I.

Our prior opinion in this case sets forth the relevant factual background, and we repeat only what is necessary to resolve the appeal. Kan. Judicial Review v. Stout ("Stout II"), 519 F.3d 1107, 1111-14 (10th Cir. 2008). Kansas provides for popular election of some judges, holding partisan political contests for judicial office in 14 of its 31 judicial districts. In 1995, the Kansas Supreme Court adopted the Code to regulate the behavior of judges and judicial candidates. Kan. Sup. Ct. R. 601A (1995). Until March 1, 2009, the Code contained the three canons at issue in this appeal.

Canon 5A(3)(d)(i) provided that judicial candidates shall not "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" ("Pledges Clause"). Canon 5A(3)(d)(ii) provided that judicial candidates shall not "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" ("Commits Clause"). Canon 5C(2) provided that "[a] candidate shall not personally . . . solicit publicly stated support," although candidates could establish committees to solicit and accept support and campaign contributions on their behalf ("Solicitation Clause").

In May 2006, KJR, Rumsey, and Hart filed a complaint against the Commission in federal district court, seeking only prospective injunctive and declaratory relief, and moved for a preliminary injunction. They requested that enforcement of the Pledges, Commits, and Solicitation Clauses be enjoined as unconstitutionally overbroad and vague. They claimed that the Clauses chilled candidates' political speech, restricting the free exchange of views between candidates and potential voters. Additionally, plaintiffs argued that the Clauses were unconstitutional as applied to them.

The district court granted a preliminary injunction as 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 found that all plaintiffs had standing to challenge the old canons and that their claims were ripe for review. It also found that plaintiffs were likely to succeed on the merits of their claims of unconstitutionality and that the other preliminary injunction factors weighed in their favor. The Commission timely appealed.*fn2

After our previous oral argument, we issued an opinion rejecting the Commission's arguments that KJR lacked standing and that the case was not ripe. Stout II, 519 F.3d at 1115-18. As noted, we also certified five questions to the Kansas Supreme Court because the plaintiffs' claims "rest[ed] on sufficiently novel and determinative questions of state law." Id. at 1119-20, 1122.*fn3

In December of last year, in a thoughtful and comprehensive opinion, the Kansas Supreme Court answered our certified questions. Kan. Judicial Review v. Stout ("Stout III"), 196 P.3d 1162 (Kan. 2008). The court advised us that it was in the process of considering proposed amendments to the Code, id. at 1171, and proceeded to interpret the old canons without speculating as to the possible content of the new, id. at 1171-72. Upon receipt of the Kansas Supreme Court's opinion, we ordered supplemental briefing. Our order specifically directed the parties to address the potential effect on this court's jurisdiction of the forthcoming amendments to the Code.

In January 2009, the Kansas Supreme Court amended the Code by adoption of Rule 601B, which went 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 canons that were extant at the time of initiation of this appeal. Rule 601B substantially alters the landscape. First, the new canons completely eliminate the challenged portion of the ...


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