John Siefert v. James Alexander ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1713
T HE H ONORABLE JOHN S IEFERT,
Plaintiff-Appellee,
v.
JAMES C. A LEXANDER, et al., in their
official capacity as members of the
Wisconsin Judicial Commission,
Defendants-Appellants.
On Petition for
Rehearing En Banc
D ECIDED A UGUST 31, 2010
P ER C URIAM . A majority of the judges in active service
did not favor rehearing en banc, and the petition there-
fore is denied.
Circuit Judges Rovner, Wood, Williams and Hamilton
voted to rehear the appeal en banc.
Circuit Judge Sykes did not participate in the con-
sideration of this case.
2 No. 09-1713
R OVNER, Circuit Judge, with whom W OOD , W ILLIAMS,
and H AMILTON, Circuit Judges, join, dissenting. As I noted
in my dissent in the initial case before us in Siefert v.
Alexander, 608 F.3d 974 (7th Cir. 2010), laws and regula-
tions that restrict speech on the basis of content are
subject to a strict scrutiny analysis, and when we tread
on the core of those rights, for example, on speech
about the qualifications of candidates for public office,
we must do so with utmost caution. Siefert, 608 F.3d at
991. Nevertheless, in evaluating Wisconsin’s Code of
Judicial Conduct forbidding a judge or judicial can-
didate from publically endorsing or speaking on behalf
of any partisan candidate (the portion of the opinion
from which I dissented), the majority opinion applied
a more relaxed balancing test not heretofore applied
to the First Amendment rights of judges and judicial
candidates.
When the Supreme Court evaluated the First Amend-
ment rights of judges and judicial candidates in the
seminal case of Republican Party v. White, 536 U.S. 765, 774-
75 (2002), it did so through the lens of strict scrutiny (as
did those justices writing in dissent). Every circuit court
to follow has done the same. See Wersal v. Sexton, No. 09-
1578, 2010 WL 2945171, at *3 (8th Cir. Jul. 29, 2010);
Carey v. Wolnitzek, Nos. 08-6468, 08-6538, 2010 WL 2771866,
at *6 (6th Cir. 2010); Republican Party v. White, 416 F.3d
738, 749-50 (8th Cir. 2005); Weaver v. Bonner, 309 F.3d 1312,
1319 (11th Cir. 2002). See also Stretton v. Disciplinary Bd., 944
No. 09-1713 3
F.2d 137, 141 & n.1 (3d Cir. 1991)ΠOur decision in Siefert
departs from the path carved by the Supreme Court and
makes us an outlier among our sister circuits.
Furthermore, since the time this panel has issued its
majority and dissenting opinions, both the Sixth and
Eighth circuits have struck down as unconstitutional
state statutes that restricted the First Amendment rights
of judges and judicial candidates, including a Minnesota
endorsement prohibition nearly identical to the one the
majority opinion upheld in Siefert. Wersal, 2010 WL
2945171, at *8,*11. See also Carey, 2010 WL 2771866, at *17.
Our divergent opinion on this issue is an outlier and
should be reheard en banc. I respectfully dissent from
the denial of rehearing en banc.
Œ
In Stretton, a case that predated the Supreme Court’s use
of a strict scrutiny analysis in Republican Party, the Third Cir-
cuit applied a strict scrutiny analysis but declined to de-
cide whether a less stringent standard might apply. Id. at 141
and n.1.
8-31-10