IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 100,170
KANSAS JUDICIAL REVIEW;
THE HONORABLE CHARLES M. HART;
THE HONORABLE ROBB RUMSEY,
Plaintiffs,
v.
MIKEL L. STOUT, IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE KANSAS COMMISSION ON
JUDICIAL QUALIFICATIONS, et al.,
Defendants.
SYLLABUS BY THE COURT
1. The Kansas Supreme Court has jurisdiction to answer questions certified to it by a United States Court of Appeals under K.S.A. 60-3201, which provides that the state's highest court may answer certified questions of state law that may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the Court of Appeals of this state.
2. Because certified questions must, by definition, turn on legal issues, this court's review of such questions is unlimited, subject only to the contours of the questions themselves.
3. Canon 5A(3)(d)(i) of the Kansas Code of Judicial Conduct (2007 Kan. Ct. R. Annot. 640)--the pledges clause--prohibits a candidate for judicial office from making pledges, promises, or commitments regarding a particular controversy or issue within a particular controversy or regarding certain results in a particular case that is bound to come before the candidate as judge. This interpretation is consistent with both the court's duty to construe rules in a constitutional manner, if possible, and the duty to provide a reasonable interpretation within the scope of the rule's language.
4. Canon 5A(3)(d)(ii) of the Kansas Code of Judicial Conduct--the commits clause--prohibits judicial candidates from making statements that bind them to a particular disposition with regard to a particular issue, a particular case, or a particular controversy bound to come before the candidate as judge. It does not prohibit candidates from stating a personal view on a disputed issue.
5. Announcing a judicial candidate's legal or political viewpoint is not prohibited. But a candidate who identifies a case or controversy or issue that is likely to come before him or her when on the bench and who proceeds to pledge or promise a particular result, or to commit to a particular resolution of that case, controversy, or issue, engages in behavior inherently inconsistent with the faithful and impartial performance of the duties of the judicial office.
6. Judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate's personal views on disputed legal or political issues. Canons 5A(3)(d)(i) and (ii) of the Kansas Code of Judicial Conduct do prohibit a judicial candidate from answering issue-related questions, however, when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy. In answering any questionnaire, it is advisable that a candidate who makes a public statement should emphasize the candidate's duty to uphold the law regardless of his or her personal views and to remain ever mindful of the impartiality that is essential to the judicial office.
7. By personally asking someone to sign a nomination petition, a judicial candidate is personally soliciting publicly stated support in violation of Canon 5C(2) of the Kansas Code of Judicial Conduct.
8. The "faithful . . . performance of the duties of the office," as described by the pledges clause, of Canon 5A (2007 Kan. Ct. R. Annot. 641), includes all conduct relevant to the judge's official actions--from judicial philosophy when deciding cases to work habits to education and ability.
9. In the Kansas Code of Judicial Conduct, Canon 5A(3)(d)(ii)'s prohibition against statements that "appear to commit" judicial candidates with respect to cases, controversies or issues that are likely to come before the court requires an objective analysis of the conduct in question from the perspective of a reasonable person with knowledge of all of the circumstances. 2007 Kan. Ct. R. Annot. 642.
10. Because Canon 5C(2) of the Kansas Code of Judicial Conduct--the solicitations clause--explicitly prohibits judges and judicial candidates from personally soliciting publicly stated support, the clause necessarily prohibits judicial candidates from personally soliciting endorsements. Such solicitations must be delegated to the candidate's campaign committee.
11. Under the Kansas Code of Judicial Conduct, judges and judicial candidates are not permitted under the solicitations clause of Canon 5C(2) to personally and actively seek endorsements of their judicial candidacies. 2007 Kan. Ct. R. Annot. 643-44. Judges and judicial candidates may respond, however, to requests regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons.
On certification of questions of law from the United States Court of Appeals for the Tenth Circuit, Circuit Judge Carlos F. Lucero. Opinion filed December 5, 2008. The answers to the certified questions are determined.
Anita Young Woudenberg, of Bopp Coleson & Bostrom, of Terre Haute, Indiana, argued the cause, and James Bopp, Jr., Thomas J. Marzen, Susan Lee, and Josiah Neeley, of the same firm, Austin K. Vincent, of Topeka, and Richard Peckham, of Andover, were with her on the briefs for plaintiffs.
George T. Patton, Jr., of Bose McKinney & Evans LLP, of Indianapolis, Indiana, argued the cause, and Marisol Sanchez, of the same firm, Stephen O. Phillips, assistant attorney general, and Stephen N. Six, attorney general, were with him on the brief for defendants.
Per Curiam: The United States Court of Appeals for the Tenth Circuit, pursuant to K.S.A. 60-3201, submits five certified questions regarding the interpretation of various provisions of the Kansas Code of Judicial Conduct, Rule 601A (2007 Kan. Ct. R. Annot. 617). Kansas Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008). The case from which the questions arise is on appeal from a decision of the United States District Court for the District of Kansas, which granted a preliminary injunction against enforcement of the questioned judicial canons on the basis that they violated the First Amendment to the United States Constitution. See Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209, 1239-41 (D. Kan. 2006).
These certified questions require this court to interpret three sections of the Kansas Code of Judicial Conduct (2007 Kan. Ct. R. Annot. 640): Canon 5A(3)(d)(i), Canon 5A(3)(d)(ii), and Canon 5C(2). Canon 5A(3)(d)(i)--the "pledges clause"--states that a candidate for judicial office "shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." (2007 Kan. Ct. R. Annot. 641.) Canon 5A(3)(d)(ii)--the "commits clause"--states that a candidate for judicial office "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." (2007 Kan. Ct. R. Annot. 642.) Canon 5C(2)--the "solicitations clause"--states in relevant part that a candidate for judicial office "shall not personally . . . solicit publicly stated support . . . . A candidate subject to public election may, however, establish committees of responsible persons . . . to obtain public statements of support for his or her candidacy." (2007 Kan. Ct. R. Annot. 643-44.)
The five questions certified by the Tenth Circuit, and our respective answers to those questions, are as follows:
1. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues?
Answer: Perhaps, depending on the questions asked.
2. Does a judicial candidate solicit "publicly stated support" in violation of Canon 5C by personally collecting signatures for his or her nomination petition?
Answer: Yes.
3. Does the definition of "the faithful and impartial performance of the duties of the office" in Canon 5A(3)(d)(i) include all conduct relevant to the candidate's performance in office?
Answer: Yes.
4. Is the definition of "appear to commit" in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate's intent to commit himself or herself?
Answer: Yes.
5. Does the definition of "publicly stated support" in Canon 5C(2) include endorsements of a candidate?
Answer: Yes.
Factual Background
Plaintiffs Kansas Judicial Review, a political action committee, Robb Rumsey, previously a judicial candidate and now a state district court judge, and Charles Hart, a state district court judge, filed an action in the United States District Court for the District of Kansas against members of the Kansas Commission on Judicial Qualifications and the office of the Disciplinary Administrator, seeking injunctive and declaratory relief under 42 U.S.C. § 1983 (2000). The plaintiffs claimed that the three aforementioned provisions of the Kansas Code of Judicial Conduct violated their rights to freedom of speech and freedom of assembly under the First Amendment to the United States Constitution. See Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006). The federal district court granted a preliminary injunction against enforcement of the judicial canons in question. 440 F. Supp. 2d at 1240-41.
The defendants appealed. The United States Court of Appeals for the Tenth Circuit determined that the plaintiffs' First Amendment claims "rest[ed] on sufficiently novel and determinative questions of state law" regarding the canons and that there were "important state policy interests at play" regarding the regulation of judicial conduct and the judicial process. Kansas Judicial Review, 519 F.3d at 1120. The Tenth Circuit decided not to reach the merits of the plaintiffs' claims before the Kansas Supreme Court had an opportunity to resolve the underlying questions of state law. 519 F.3d at 1120. The Tenth Circuit noted that if the Kansas Supreme Court were to interpret the provisions of our judicial code in such a way that the questionable conduct was permissible, the issues relating to the constitutionality of these provisions, which were reserved by the Tenth Circuit, might be eliminated. 519 F.3d 1120-22.
This court has jurisdiction to answer questions certified to it by a United States Court of Appeals under K.S.A. 60-3201, which provides that the Kansas Supreme Court may answer certified "questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state." Because certified questions must, by definition, turn on legal issues, this court's review of such questions is unlimited, subject only to the contours of the questions themselves. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 764-65, 986 P.2d 377 (1999). The underlying facts are not in dispute. The Tenth Circuit Court of Appeals provided the following factual background:
"A
"Kansas provides for popular election of some judges, holding partisan political contests for judicial office in 14 of its 31 judicial districts. The Kansas Supreme Court has adopted a Code of Judicial Conduct ('Code') regulating the behavior of judges and judicial candidates. See Kan. Sup. Ct. R. 601A [2007 Kan. Ct. R. Annot. 617]. Three bodies are involved in the interpretation and enforcement of the Code: the Judicial Ethics Advisory Panel ('JEAP'), the Commission, and the Kansas Supreme Court.
"JEAP was created by the Kansas Supreme Court to provide nonbinding ethical 'guidance' to persons subject to the Code. See Kan. Sup. Ct. R. 650 [2007 Kan. Ct. R. Annot. 665]. The panel is comprised of three retired judges, one of whom is usually a retired state Supreme Court justice, and panel members are appointed by the Kansas Supreme Court. Judges and judicial candidates may request advisory opinions interpreting the Code from JEAP. [Rule 650(b).] Although these advisory opinions are not binding on the Commission or the Kansas Supreme Court, the Commission must take into account a judge or candidate's reliance upon an advisory opinion in its investigation of an alleged violation of the Code. Kan. Sup. Ct. R. 650(f) [2007 Kan. Ct. R. Annot. 666]. According to Justice [Fred] Six, a former Commission member and a retired Kansas Supreme Court justice, judges in the state rely upon these opinions and consider them 'authoritative.'
"The Commission, also established by the Kansas Supreme Court, is charged with investigating allegations against judges and candidates, and recommending disciplinary action when necessary. See Kan. Sup. Ct. R. 602-21 [2007 Kan. Ct. R. Annot. 647-59]. Its 14 members are appointed by the Supreme Court and consist of a mix of judges, lawyers, and nonlawyers. Anyone may submit a complaint regarding the conduct of a judge or candidate to the Commission, with the majority of complaints coming from the general public. Each complaint received by the Commission is assigned to a seven-member panel for investigation. If the investigatory panel finds probable cause of a violation of the Code, it refers the matter to a seven-member hearing panel for a trial-like proceeding. There is no direct appeal of the investigatory panel's decision.
"Upon finding clear and convincing evidence of an ethics violation, the hearing panel may take several actions, ranging from an admonishment by the panel to a recommendation that the Kansas Supreme Court remove the judge from the bench. Although the hearing panel may rely on clearly established constitutional law, it may not consider novel constitutional arguments. Disciplinary recommendations made by the panel are automatically reviewed by the Kansas Supreme Court. Factual findings of the hearing panel are subject to substantial evidence review.
"This case involves challenges to three Code clauses. Canon 5A(3)(d) provides 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') or '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) provides that 'a candidate shall not personally . . . solicit publicly stated support,' although candidates may establish committees to solicit support and campaign contributions on their behalf ('Solicitation Clause'). These clauses apply to all judicial candidates. See Kan. Sup. Ct. R. 601A [Terminology] (defining 'candidate') [2007 Kan. Ct. R. Annot. 619]; 601A (containing Canon 5) [2007 Kan. Ct. R. Annot. 640-45].
"B
"In February 2006, plaintiff [Kansas Judicial Review] KJR mailed a questionnaire and explanatory cover letter to all declared judicial candidates in Sedgwick County, Kansas. Candidates were asked to answer the questionnaire, designed to elicit views on a variety of legal and political issues. The cover letter asked that candidates answer the questionnaire, consistent with their ethical obligations under the Code. An option of declining to respond if candidates believed the Code prohibited answering was offered. KJR received seven responses, only one of which included substantive answers to the questionnaire. All other candidates marked the 'Decline to Respond' option.
"JEAP has issued two opinions addressing candidate questionnaires. In 2000, JEAP published advisory opinion JE 100, which states that a judicial candidate may not answer questionnaires sent by newspapers for the purpose of deciding whether to make an endorsement. The majority of the panel viewed the answering of such questionnaires as requests for public endorsement and concluded that a response would violate the Solicitation Clause. One panel member dissented and advanced the view that a candidate may answer such questionnaires but 'must be ever mindful of the Canons of Judicial Conduct, particularly Canon 5.' After JE 100 was published, the Commission attached a 'Note' to the opinion, stating that it was not bound by JEAP advisory opinions and adopted the minority view.
"In 2006, plaintiff Robb Rumsey, at the time a candidate for judicial office, asked JEAP whether he could respond to KJR's questionnaire. In advisory opinion JE 139, citing the Pledges and Commits Clauses, JEAP determined that because he was an announced candidate, Rumsey could not answer the questionnaire. Again, the Commission attached a 'Note' to the advisory opinion, rejecting JEAP's approach. Citing Republican Party of Minnesota v. White, 536 U.S. 765, [153 L. Ed. 2d 694, 122 S. Ct. 2528] (2002), the Commission adopted the principle that judicial candidates may publicly announce their views on legal and political issues. [This note was added on August 2, 2006, after the district court had issued a preliminary injunction in the present case.]
"Since adoption of the Canons, the Kansas Supreme Court has spoken to the Pledges Clause on one occasion, but has yet to address the other two clauses at issue. In re Baker, 218 Kan. 209, 542 P.2d 701 (1975), involved a candidate who was subjected to disciplinary proceedings after publicly pledging to be a 'full-time judge' and eliminate court delay. [218 Kan. at 212.] Rejecting the Commission's disciplinary recommendation, the court held that these statements relate to the faithful performance of official duties and did not violate the Pledges Clause. [218 Kan. at 212.]
"C
"Plaintiff Charles M. Hart, a state district court judge in Butler County, seeks to be a candidate for re-election in 2008. In order to qualify as a candidate, he requires a sufficient number of voters sign a nomination petition. In 2004, JEAP issued advisory opinion JE 117, declaring that a judicial candidate may not seek signatures for a nomination petition under the Solicitation Clause. Neither the Commission nor the Kansas Supreme Court has addressed JE 117 or the Solicitation Clause. Hart proposes to go door-to-door to collect these signatures, but will not do so because he fears discipline pursuant to the Solicitation Clause.
"D
"On May 24, 2006, KJR, Rumsey, and Hart filed a complaint against the Commission in federal district court, seeking injunctive and declaratory relief, and a motion for preliminary injunction. They requested that enforcement of the Pledges, Commits, and Solicitation Clauses be enjoined as being unconstitutionally overbroad and vague, and chilling candidates' political speech, thereby restricting the free exchange of views between candidates and potential voters. Additionally, plaintiffs argued that the Clauses were unconstitutional as applied to them. In response, the Commission asserted that KJR lacked standing to sue, this preenforcement challenge was not ripe, and the clauses were constitutional. It also requested certification of a question of state law to the Kansas Supreme Court, namely whether the Pledges and Commits Clauses function as the kind of prohibition on announcements struck down by the United States Supreme Court in White, 536 U.S. 765 . . . .
"After a hearing, the district court granted a preliminary injunction as to the Pledges, Commits, and Solicitation Clauses, and denied the remaining requests. The district court found that, despite not being subject to the Canons, KJR had standing to challenge them and that plaintiffs' claims were ripe for review. It also found that plaintiffs were likely to succeed on the merits of their claims that the Clauses were unconstitutional and that the other preliminary injunction factors weighed in their favor. The Commission filed a timely notice of appeal.
"On October 6, 2006, the district court denied both of the Commission's motions, for a stay of the injunction pending appeal and for certification of a question of state law to the Kansas Supreme Court. On November 3, 2006, a panel of this court granted the Commission's motion for a stay with respect to the portion of the Solicitation Clause concerning a judicial candidate's personal solicitation of campaign contributions." Kansas Judicial Review v. Stout, 519 F.3d at 1111-14.
Discussion
The federal case underlying this certification request is the latest in a series of actions being brought throughout the United States in the wake of the United States Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765, 153 L. Ed. 2d 694, 122 S. Ct. 2528 (2002). In that case, the Court held that the "announce clause" of Minnesota's Code of Judicial Conduct violated the First Amendment to the United States Constitution. 536 U.S. at 788.
In White, the canon stated that a "'candidate for a judicial office, including an incumbent judge,' shall not 'announce his or her views on disputed legal or political issues.'" 536 U.S. at 768 (quoting Minn. Code of Judicial Conduct, Canon 5[A][3][d][i] [2000]). The Court held that this canon was an impermissible, content-based regulation of speech because it prohibited "a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running." 536 U.S. at 773.
Notably, the White Court recognized that there was a difference between the announce clause at issue in that case and another section of the Minnesota code that prohibited "'pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.'" 536 U.S. at 770, 812 (quoting Minn. Code of Judicial Conduct, Canon 5[A][3][d][i] [2002]). The Court indicated that it was expressing no view on this latter clause, explaining that "'announc[ing] . . . views' on an issue covers much more than promising to decide an issue a particular way." 536 U.S. at 770. The Court further noted that the announce clause "extends to the candidate's mere statement of his current position, even if he does not bind himself to maintain that position after election." 536 U.S. at 770.
Since the 2002 White decision, several actions have been initiated to challenge provisions of various judicial codes. Most of these cases involve either "pledges clauses"--like that discussed briefly in White--or "commits clauses"--where the canons generally prohibit candidates from committing to a position on cases, controversies, or issues that might come before them if they were to ascend to the bench. Jurisdictions have split as to whether the pledges and commits clauses are constitutional restrictions on judicial speech. See Family Trust Foundation of Kentucky, Inc. v. Kentucky Judicial Conduct Comm'n, 388 F.3d 224, 227-28 (6th Cir. 2004) (pledges and commits clauses are similar in scope to announce clause, unconstitutional); Pennsylvania Family Institute, Inc. v. Celluci, 521 F. Supp. 2d 351, 387 (E.D. Pa. 2007) (pledges and commits clauses narrowly construed, constitutional); North Dakota Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1044 (D.N.D. 2005) (pledges and commits clauses are similar in scope to announce clause, unconstitutional); In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (pledges and commits clauses are different from announce clause, constitutional); In re Watson, 100 N.Y.2d 290, 301, 763 N.Y.S. 2d 219, 794 N.E.2d 1 (2003) (pledges clause different from announce clause, constitutional).
The Kansas Code of Judicial Conduct does not currently contain an announce clause--the clause at issue in White--as that clause was removed by this court in 1984. See Kansas Judicial Watch, 440 F. Supp. 2d at 1228. The case before us involves a challenge to Kansas' pledges and commits clauses, as well as a provision in the solicitations clause. See Kansas Judicial Review, 519 F.3d at 1112. The constitutionality of these clauses is not before us, as jurisdiction over the constitutional questions has been reserved by the Tenth Circuit. See 519 F.3d at 1122. Instead, the certified questions request this court to provide authoritative interpretations of the three canons of judicial conduct at issue in this case.
Maxims of Interpretation and Scope of Review
The Kansas canons of judicial conduct are contained in Supreme Court Rule 601A (2007 Kan. Ct. R. Annot. 617). The interpretation of a Supreme Court rule, like the interpretation of a statute, is a question of law. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). For this reason, this court has emphasized on numerous occasions that it is not bound by the Commission's interpretation of the judicial canons.
The most fundamental rule governing statutory interpretation is that "the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted." State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). Thus, when the language of a statute is plain and unambiguous, courts "need not resort to statutory construction." In re K.M.H., 285 Kan. 53, 79-80, 169 P.3d 1025 (2007). Instead, "[w]hen the language is plain and unambiguous, an appellate court is bound to implement the expressed intent." State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where "the face of the statute leaves its construction uncertain" may the court look to "the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]" Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
This court has also explained that "a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. [Citation omitted.]" Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). This court "not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
These same principles apply where this court is called on to interpret its own rules. Jarvis v. Drake, 250 Kan. 645, 651-53, 830 P.2d 23 (1992). In these circumstances, this court is in the unique position of articulating its own intention for adopting particular provisions. If the language of a particular court rule is clear, this court is bound by that language. But if the language of a Supreme Court rule is subject to more than one reasonable interpretation, we may authoritatively state which interpretation is most consistent with our intent in adopting the rule in question. See 250 Kan. at 651 ("If Rule 223 were ambiguous, then our intent in adopting the rule and amendment would be controlling."). For this reason, even though the questions certified in this case are legal questions in the sense that they require the interpretation of Supreme Court rules, we have a considerable amount of discretion in interpreting ambiguous language.
Recommended Revisions to the Code of Judicial Conduct
During oral argument before this court, the parties acknowledged--as the Commission indicated in a series of letters submitted to the court under Supreme Court Rule 6.09 (2007 Kan. Ct. R. Annot. 45)--that the Commission is in the process of recommending substantial amendments to the Kansas Code of Judicial Conduct based on the American Bar Association 2007 Model Code of Judicial Conduct. The Commission has presented its recommendations to this court. We have not considered these recommendations and have decided not to review these recommended revisions during the pendency of this case. The decision we file today is based upon our present Code of Judicial Conduct, the same that was considered by the United States District Court and the Tenth Circuit. By putting off consideration of any amendments until this case has been decided, we avoid complicating the task of answering the Tenth Circuit's questions by changing the rules midstream. We also avoid any suggestion that the Commission's submission of new rules while this case is in progress might be an improper ex parte communication with a party in the case before us. Thus, although we are aware of the proposed revisions to Kansas' judicial code, we choose to decide the matter before us on the basis of the code in its present form.
I. Does a judicial candidate violate Canon 5A(3)(d)(i) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues?
Answer: Perhaps, depending on the questions asked.
We are not asked whether the particular questionnaire proposed by the Kansas Judicial Review (KJR) violated Canons 5A(3)(d)(i) and (ii). Instead, as the question suggests, we are called on to consider whether, in the abstract, a judicial candidate's response to an issue-related questionnaire is permissible under these sections.
Canon 5A(3)(d)(i) states that a candidate for judicial office "shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." 2007 Kan. Ct. R. Annot. 641. Canon 5A(3)(d)(ii) similarly provides that a candidate for judicial office "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." 2007 Kan. Ct. R. Annot. 642.
The comments to section 5A(3)(d) explain:
"Section 5A(3)(d) prohibits a candidate for judicial office from making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate's duty to uphold the law regardless of his or her personal views. . . . Section 5