used his views about issues in their cases to solicit votes and financial support.
Both J.C.J.D and American Civil Liberties Union relied in part on cases such as Peel v. Attorney Registration and Disciplinary Comm'n, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (June 4, 1990), striking down disciplinary rules forbidding attorney advertising. See American Civil Liberties Union, 744 F. Supp. at 1098, J.C.J.D., 803 S.W.2d at 957. We find the analogy inapt. When an attorney advertises, he or she is seeking to be hired by a client as a personal advocate. As long as the advertising is not false or misleading, information that will help clients find qualified and vigorous advocates is a good thing. it benefits both clients and society by assisting potential clients in locating the best lawyers they money can hire. But a judge is not elected to be an advocate for the majority that elects the judge, nor for those who supported the judge's campaign. A judge should be elected on the basis of how he or she goes about deciding -- character, temperament, and legal knowledge -- not what he or she will decide.
Young contends that the Rule is not the least restrictive means of furthering the State's interest. Young suggests that the Board could "aggressively seek the removal of judges whose rulings or other conduct demonstrate their lack of objectivity or their refusal to abide by precedent," by applying Supreme Court Rule 63A(1): "[a] judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of critism." Young Br. at 16.
A content-based restriction on speech is not sufficiently narrowly drawn if a less restrictive alternative is readily available, Boos v. Barry, 485 U.S. 312, 329, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988). But Young's proffered alternative is unrealistic. The rule he cites is impossible to enforce except in the most egregious cases. How is the Board to prove a judge has been swayed by partisan interests of fear of criticism without reading his mind? In any event, such enforcement would do nothing for the appearance of partiality engendered by candidates' taking positions on disputed issues in their campaigns. It cannot substitute for the Rule.
Plaintiffs and courts which have struck down restrictions similar to the Rule ask how voters can make informed choices in judicial elections if the candidates are not allowed to disclose their views. "Informed choices" in this setting readily translates into voter referenda on the controversies of the day, remembering De Tocqueville's dictum, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." A. De Tocqueville, Democracy in America 270 (Lawrence translation, Anchor Books 1969). We are not persuaded that voters are incapacitated by the long-standing restrictions on judicial campaign speech reflected in the Rule. Those restrictions leave open for voter education and choice the candidates' experience, knowledge of the law and character as well as their proposals for improving judicial administration. Nor are we persuaded that in choosing to elect its judges Illinois intended to sacrifice the values of judicial impartiality and integrity which are so central to our legal heritage.
Summary Judgment for Defendants?
We conclude that the plaintiffs in neither action have demonstrated that the Rule is unconstitutional and the summary judgment motions in both cases should be denied. Because this is a pure issue of law and there are no disputed facts, summary judgment for the defendants is appropriate, even though the defendants have not so moved. Summary judgment for the defendants is appropriate even in the absence of a motion if the plaintiffs have had a full and fair opportunity to present material evidence and litigate the issues. See 6 Moore's Federal Practice P 56.12 (1992). Because of the importance of the issues presented here, the plaintiffs can be expected to appeal an adverse ruling. Entering summary judgment for the defendants will permit a prompt appeal to the Court of Appeals.
We grant the IJA's motion to intervene in 91 C 7635. However, the IJA has not presented a ripe case or controversy and accordingly we recommend that its motion for summary judgment be denied. Buckley presents a ripe controversy only with respect to the pledges or promises portion of the Rule, and therefore the disputed issues provision is not considered. Buckley and the IJA have not persuaded the court that the pledges or promises provision is unconstitutionally vague or overbroad or that the Commission's Order represents an unconstitutional application of the Rule to Buckley. We recommend that Buckley's summary judgment motion be denied and that summary judgment be entered in favor of the defendants.
We conclude that Young has not shown a ripe controversy with respect to the pledges or promises provision but has done so with respect to the disputed issues provision. We construe "disputed legal or political issues" to mean disputed issues that are likely to come before the courts for adjudication, and, so construed, we find the disputed issues provision narrowly tailored and not vague. We further conclude that it is not unconstitutional to apply the provision to Young, even though he is not a sitting judge and is a legislator and community leader a well as a candidate for judicial office. Therefore we recommend that Young's summary judgment motion be denied and that summary judgment be entered in favor of the defendants.
Under 28 U.S.C. § 636(b)(1) the parties have 10 days from the date of service hereof to file written objections to this Report and Recommendation with Judge Alesia. Failure to file such objections will normally waive the right to appeal the rulings set forth in this Report. Egert v. Connecticut General Life Ins. Co.. 900 F.2d 1032, 1039 (7th Cir. 1990).
United States Magistrate Judge
Date: April 23, 1992