Fischer Injunction Pending Appeal

Case: 22-5938 Document: 5 Filed: 10/24/2022 Page: 1
United States Court of Appeals

for the Sixth Circuit
Case No. 22-5938
JOSEPH FISCHER, et. al. :
Plaintiffs/Appellants :
v.
:
HON. KAREN THOMAS, et. al.
:
Defendants/Appellees
:
PLAINTIFFS/APPELLANTS’ EMERGENCY MOTION FOR

INJUNCTION PENDING APPEAL WITH MATERIALS IN SUPPORT
I. Introduction
Plaintiffs, through Counsel, move this Court for an Injunction Pending
Appeal pursuant to FRAP 8(a)(1)(C), both (i) to prevent the Defendants from
formally charging them under Kentucky’s Judicial Conduct Code, which will
create significant issues under Younger v. Harris, 401 U.S. 37 (1971); and (ii)
granting injunctive relief pending appeal concerning their First Amendment
protected speech. Plaintiffs moved for this relief below [Doc. 19, PageID#188-
189], which was denied [Doc. 20, PageID#190-191], satisfying Plaintiffs’
obligations under FRAP 8(a)(2)(A)(ii). This relief is emergency relief, in that
Defendants have directed the Plaintiffs to appear at their meeting, scheduled
1
October 28, 2022, with counsel, to explain themselves, and formal charges could
occur shortly thereafter.
II. Factual Background
1. The parties
Plaintiffs, Joseph Fischer and Robert Winter, are candidates for Kentucky
Supreme Court and Kentucky Court of Appeals, covering the Sixth Supreme Court
District (Northern Kentucky) in the 2022 election. (Pl.’s Am. Ver. Compl.,
Doc#13, ¶2, PageID#95-126). Defendants are the members and the Executive
Secretary of Kentucky’s Judicial Conduct Commission (“JCC”). Id. at ¶3. They
actively enforce and threaten to enforce the Kentucky Code of Judicial Conduct,
and associated rules. Id. They accept complaints from the public. Id.
2. Facts underlying the free speech
Mr. Fischer and Mr. Winter are both lifelong Republicans. (Id. ¶8). Their
affiliation with, support of, and alignment with, the Republican party is
longstanding and well-known. Id. The Sixth Kentucky Supreme Court District is
largely Republican. (Id. ¶9). Their opponents are lifelong Democrats, recently
turned independents, appointed by Democrats, and are supported by Democrats.
(Id. ¶¶ 10-12).
Earlier this year, Mr. Fischer obtained a Judicial Ethics Opinion regarding
campaign activities, JE 130, which forbade him from using the Republican party’s
2
elephant symbol, since allegedly doing so would “render hollow” the non-partisan
nature of the judicial elections.1 (Id. ¶13).
Mr. Fischer and his campaign have not been shy about his Republican party
affiliation, and his campaign materials generally denote: “Joe Fischer for Kentucky
Supreme Court --- the Conservative Republican.” (Id., ¶14). Mr. Winter has
similarly advertised that he is “conservative” in his signage, and has truthfully told
voters that he is a “a Republican.” Id. Neither Mr. Fischer, nor Mr. Winter, have
ever, however, expressly indicated that they are the nominee of the Republican
party. Id. At times, Mr. Fischer has utilized the following image in his campaign
materials:
Id.
But for JE 130, and the JCC’s general threat of enforcement, he would have
used the Republican Elephant symbol:
1
https://kycourts.gov/Courts/Judicial-Ethics/Judicial%20Ethics%20Opinions/JE_130.pdf (last
visited 10/3/2022).
3
Id. ¶15.
Mr. Fischer and Mr. Winter have both obtained, and both are now using in
campaign materials, endorsements from both Kentucky Right to Life and Northern
Kentucky Right to Life. (Id. ¶16). Both have long involvement with both
organizations. Id. Those right to life organizations have taken issue with their
opponents. (Id. ¶17). Right to Life groups, including Kentucky Right to Life and
Northern Kentucky Right to Life, in addition to their endorsements, are actively
supporting Mr. Fischer and Mr. Winter’s campaigns, including through word of
mouth, endorsements, and have been actively engaged in a sign campaign for
candidates that they support, putting up both the candidate’s sign, and their own
“Choose Life” signs with it. (Id. ¶18). An example of this is:
Id.
4
Mr. Fischer, Mr. Winter, and their campaign teams have not erected the
“Choose Life” signs or put them up; rather, third party Right to Life groups have.
(Id. ¶19). However, Mr. Fischer and Mr. Winter have not been shy about their
endorsements from these groups. Id. For the avoidance of all doubt, Mr. Fischer
and Mr. Winter have never, in the course of their campaigns, made a promise or
pledge to rule a particular way regarding any particular party, particular case, or
particular controversy. (Id. ¶20). In fact, when an individual questioned Mr.
Fischer on his Facebook about his affiliations with Right to Life groups, this was
his response (and is consistent with how he and Mr. Winter have generally
addressed questions about particular cases or parties):
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(Id. ¶21).
Mr. Fischer and Mr. Winter have, however, made general statements about
issues, and have made broad pledges about their commitment to defending the rule
of law, ensuring Kentucky’s judicial system effectively serves all citizens, have
indicated that they will not engage in judicial activism, and have underscored their
understanding of, and the importance of, the separation of powers. (Id. ¶22).
Mr. Fischer and Mr. Winter have each received the endorsement of various
county Republican Party Executive Committees (and partisan elected officials), but
neither have used or sought the endorsements of either. (Id. ¶23). Mr. Fischer has
made general references to his experience in the Kentucky House of
Representatives. Id.
3. Facts underlying the Defendants threats directed to the Plaintiffs
In September, 2022, the Kentucky JCC penned letters to Mr. Fischer and
Mr. Winter. (Id. ¶¶ 24, 32; Exhibit A, Exhibit C). In them, the JCC observed that
it received complaints from the public about Winter and Fischer, it found that
“following consideration and discussion” of the complaints a response was
warranted, and it directed such a response. Id. Under SCR 4.170(1), the JCC
determined that “there is a basis for investigation of a matter” within the
jurisdiction of the JCC. Id.
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Those letters indicated and cited specific provisions of the Kentucky Judicial
Conduct Code, including Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13)
violations, for their speech outlined above. (Id. ¶¶ 25-36). Mr. Fischer and Mr.
Winter’s counsel sent correspondence to the Kentucky Judicial Conduct
Commission, confirmed the speech they engaged in, confirmed the determinations
made by the JCC about that speech, and asked the JCC to outline any additional
speech they found violative (and asked the JCC to disavow enforcement over the
speech). (Id. ¶¶ 31, 37). They did not do so. At present, Mr. Fischer and Mr.
Winter face a threat of imminent enforcement action by the JCC for this First
Amendment protected speech. (Id. ¶37). However, at the present time, no formal
action has been commenced by the JCC under S.C.R. 4.180. (Id. ¶39).
4. The District Court holds a hearing, and the parties file supplemental
briefs and evidence
The District Court held a telephonic hearing on October 7, 2022 to the
motion. (Doc. 15, PageID#131). We have ordered, on a rushed basis, the
transcript (but it was not available at the time of this filing). Defendants did not
defend on the merits, but argued standing. Counsel for the JCC declined to
disavow enforcement. The District Court then directed the parties to file
supplemental memoranda on the issue of standing. (Doc. 15, PageID#131).
Ms. Shaffer, Executive Secretary for the JCC, submitted a declaration on the
issue of standing. (Dec. Shaffer, Doc. 17-1, PageID#158-161). In it, she

7
recounted the process of complaint submission, confirmed that some complaints
are dismissed after review, but that these directed at Mr. Winter and Mr. Fischer
were not dismissed. Id. at ¶¶ 5, 7. Ms. Schaffer did not disavow enforcement over
the speech at issue in her declaration. Id.
Mr. Winter and Mr. Fischer each submitted declarations as well. Mr. Winter
testified that he was the same Winter who was a party in Winter v. Wolntizek.
(Dec. Winter, Doc. 18-2, ¶1, PageID#178-184). Mr. Winter compared the
correspondence he received in 2014 to the 2022 correspondence, demonstrating
that there were more indicia of threats in 2022 versus 2014, including directives to
respond, and appear with counsel who had to enter a formal appearance. Id. at ¶¶
2, 5.
Mr. Winter testified that Defendants accept as mitigating prompt
discontinuation of violations upon notification by the JCC. Id. at ¶3. He outlined
JCC enforcement brought for similar allegations of violations. Id. at ¶4. He
reiterated the speech he engaged in, and the Defendants’ citation to particular
provisions of the Judicial Code of Conduct. Id. at ¶¶ 5-10. Mr. Winter then
explained:
I do not view it as an option but instead a mandatory requirement to submit a

written response. I view the statement about the appearance of counsel, and
the need of any such attorney to enter a formal “entry of appearance” to
denote something more than an informal “chat,” but instead the predicate to
the institution of formal charges. Id. at ¶11.
8
Mr. Winter then explained the significance of the timing of the JCC’s
correspondence, that it placed Mr. Winter in a Hobson’s choice, and that he was
considering “whether it is appropriate to pull my signage.” Id. at ¶12. Mr. Winter
concluded with his views that Defendants made a “a credible threat of impending
enforcement.” Id. at ¶13. For his part, Mr. Fischer echoed this testimony. [Dec.
Winter, Doc. 18-1, PageID#172-177].
The District Court concluded that Plaintiffs lacked standing, and declined to
reach the merits of the challenges. [Doc. 20, PageID#190-191]. Plaintiffs timely
appealed. [Doc. 21, PageID#192-195].
III. Law and Argument
A. Standard of Review
When deciding whether to issue a temporary restraining order or preliminary
injunction, the court must consider the following four factors: (1) Whether the
movant has demonstrated a strong likelihood of success on the merits; (2) Whether
the movant would suffer irreparable harm; (3) Whether issuance would cause
substantial harm to others; and (4) Whether the public interest would be served by
issuance. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998); Northeast Ohio
Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
Clear Sixth Circuit law establishes that the remaining factors are met where
constitutional rights are infringed upon, and so, in these cases, the likelihood of
9
success factor is dispositive. H.D.V. - Greektown, LLC v. City of Detroit, 568 F.3d
609 (6th Cir. 2009) (abuse of discretion not to grant preliminary injunction where
constitutional violation found); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020);
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Elrod v.
Burns, 427 U.S. 347, 373 (1976) (irreparable harm from violation of rights).
B. Plaintiffs established standing
The Kentucky Supreme Court modified the JCC rules regarding claim
processing to attempt to divest federal courts of the ability to hear challenges to its
rules. This allows the Defendants to implicitly (or explicitly) threaten enforcement
and chill speech in the middle of an election campaign, while simultaneously
arguing that there is not standing for such a challenge in federal court. Then, when
their process has concluded, all free from federal review, Defendants can then
bring formal charges arguing such claims are foreclosed under abstention.
Younger, 401 U.S. 37.
Mr. Fischer and Mr. Winter have standing
In Winter v. Wolntizek, 834 F.3d 681 (6th Cir. 2016), this Court explained
“[t]he question is whether [Plaintiffs] face[] a ‘credible threat of enforcement’ for
engaging in that speech.” Id. at 687, citing Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158, 164 (2014). True, there is now no explicit rule about probable
cause: the rule in question is designed to be vaguer. But Defendants must
10
determine two things: (i) there is a basis for investigation of a matter; and (ii)
within the jurisdiction of the JCC. SCR 4.170(1). Taking the Oxford dictionary
definition of “basis,” it is that there is “underlying support or foundation for an
idea, argument, or process.” Meanwhile, “[p]robable cause has been defined as
'reasonable grounds for belief, supported by less than prima facie proof but more
than mere suspicion.'” United States v. Padro, 52 F.3d 120, 122-23 (6th Cir. 1995).
Applying that definition, there is no material difference between “probable cause,”
Winter, 834 F.3d 681, 687, and “reasonable grounds for belief” of a violation.
Even without a probable cause finding, standing exists. As in Driehaus, the
fact that Mr. Winter’s similar speech drew enforcement in a prior election cycle is
relevant to the question of credible threat of enforcement. 573 U.S. 149 at 163-
164, citing Steffel v. Thompson, 415 U. S. 452, 459 (1974). That is bolstered by
Defendants’ acceptance of complaints from the public. Dreihaus, 573 U.S. 149,
164. Administrative enforcement gives rise to pre-enforcement review. Id. at 165.
As is the case here, the Supreme Court in Dreihaus emphasized burdens on the
electoral process and speech such complaints give rise to, including campaign
advantages from just being able to file the complaint at an opportune time, to force
“the other side” to respond and cause the expenditure of time and resources. Id.
In Steffel, the Supreme Court made clear that even a warning by an
enforcement agency would be sufficient to demonstrate a credible threat of
11
enforcement. 415 U. S. 452, 459. That demonstration of standing is bolstered
where the Plaintiff can cite “specific provisions of state law which have provided
the basis for threats” of enforcement against him. Id. That is the case here as well.
As in Platt v. Board of Commissioners on Grievances and Discipline, 769
F.3d 447 (6th Cir. 2014), this Court determined that a party had standing, and
claim was ripe when “(1) the plaintiff alleges ‘an intention to engage in a course of
conduct’ implicating the Constitution and (2) the threat of enforcement of the
challenged law against the plaintiff is “credible.” Id. at 451-452, citing Babbitt v.
United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). This Court observed
that the speech code restrictions “at least chill, and in some instances prohibit,
[Platt's desired] forms of communication.” Id. citing Carey v. Wolntizek, 614 F.3d
at 196 (6th Cir. 2010). As in Platt, Plaintiffs here have to “censor[] himself" to
avoid violating the Code, which amounts to a “credible fear of enforcement.”
Platt, 769 F.3d at 452. As in Platt, the acceptance of complaints from the public is
relevant. Id. And as in Platt, “when directly asked at oral argument, the State
refused to disavow the enforcement … further adding credibility” to Plaintiffs’
fears. Id. The same analysis, incidentally, was undertaken in Carey, 614 F.3d 186,
196. And the same was true in Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014). There,
a letter directed to the Plaintiff that “concerns have arisen,” and citing the relevant
portion of the regulations was sufficient to confer standing. Id. at 605.
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After these, and other, standing cases, this Court in McKay v. Federspiel,
823 F.3d 862, 869 (6th Cir. 2016) synthesized down standing cases and the
analysis thereon, into four factors (any of which could be met) to establish
standing: (1) “a history of past enforcement against the plaintiffs or others;” (2)
“enforcement warning letters sent to the plaintiffs regarding their specific
conduct;” (3) “an attribute of the challenged statute that makes enforcement easier
or more likely, such as a provision allowing any member of the public to initiate an
enforcement action;” or (4) the “defendant's refusal to disavow enforcement of the
challenged statute against a particular plaintiff.” Id.
Applying these McKay factors, first, Mr. Winter has drawn past enforcement
against him, and both of their declarations show that the JCC enforces the Canons
at issue, including Rule 4.1(A)(7).2 Second, Mr. Fischer and Mr. Winter have
drawn enforcement warning letters regarding their specific conduct, and any letter
that advises someone that they are “invited” to a proceeding and if they want to be
represented by Counsel at that proceeding, to have that counsel enter their formal
appearance, surely fits that bill. And third, the JCC accepts complaints from the
public, and, in fact, those public complaints prompted the September 27, 2022
letters to Mr. Winter and Mr. Fischer. And, fourth, the JCC has refused to disavow
https://kycourts.gov/Courts/JCC%20Actions%20Documents/2020privatereprimand05262020.pdf
(last accessed 10/8/2022).
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enforcement. While any of these factors demonstrate a credible threat of
enforcement, all of them are met here. See, also, Online Merchs. Guild v.
Cameron, 995 F.3d 540, 551 (6th Cir. 2021) (probable cause need not be found,
indications of a possible violation coupled with an investigation is enough).
Plaintiffs have standing and the District Court was wrong to conclude otherwise.
C. Rule 4.1(A)(6), as interpreted by Defendants, violates the First

Amendment
Rule 4.1(A)(6) provides, in relevant part, “a judge or a judicial candidate*
shall not (6) publicly identify himself or herself as a nominee of a political
organization.” The interpretation of this Rule extends to Plaintiffs statements and
speech regarding their party affiliation and symbols. (Ver. Am. Compl., Doc. 13,
PageID#95-126).
In 2014 to 2016, similar litigation was undertaken. The Kentucky Supreme
Court certified the law, and indicated that the then-existing party affiliation Canon
effectively prohibited a candidate from indicating he or she was the nominee
(including by implication). Blau v. Wolnitzek, 482 S.W.3d 768 (Ky. 2016).
Defendants’ correspondence to Plaintiffs reveal that this interpretation is still the
case and it extends to Rule 4.1(A)(6).
In 2014, similarly in the context of an in-process judicial election, the Court
similarly had occasion to write about the usage of terms like “the conservative
Republican” by judicial candidates. Winter v. Wolnitzek, 56 F. Supp. 3d 884 (E.D.

14
Ky. 2014). The restrictions at issue were found to be vague, overly broad, and
underinclusive, for a host of reasons articulated in that opinion, all of which are
equally the case to this speech by Plaintiffs and Rule 4.1(A)(6). In 2016, again
analyzing a similar judicial restriction on speech, the Court again found vagueness.
Winter, 186 F. Supp. 3d 673, 685, citing Gentile v. State Bar of Nev., 501 U.S.
1030, 1048 (1991).
In analyzing vagueness, the Court observed that “[i]f the only thing the
Canon forbid was a candidate saying that he is a party's official nominee, then it
would likely be constitutional.” Winter, 186 F. Supp. 3d 673, 686. “After all,
Kentucky has a compelling interest in promoting non-partisan elections.” Id. But
given the nomination by implication theory, which Defendants again utilize, the
Court made a number of observations and hypotheticals that are equally true here,
boiling down to the fact that no one can be sure what exactly it means to be the
nominee by implication. Id. at 685-687. The Court observed that “[a] professional
linguist would struggle to determine exactly what it means to ‘portray’ one's self as
an official nominee ‘by implication.’ This Court confesses that it does not know
the answer to that question.” Id. at 686.
Those observations are equally true with Rule 4.1(A)(6). This Court
affirmed, and found the District Court “rightly struck it in its entirety.” Winter,
834 F.3d 681, 688-689. In so doing, this Court found that any interpretation that
15
extended to speech of being the nominee by implication was unconstitutional
vague. Winter, 834 F.3d 681, 688-689. The use of the term “the conservative
Republican,” “conservative” or the use of the elephant are merely shorthanded
ways of denoting affiliation with the Republican party, all of which are protected
speech. Id.; Carey, 614 F.3d 189; Republican Party of Minn. v. White, 536 U.S.
765 (2002).
Further, and even putting vagueness considerations aside, this Canon, as
interpreted, must run the gauntlet of strict scrutiny. Winter, 834 F.3d 681, 690.
These provisions force candidates to forgo speech that is akin or of a piece with the
right to tell voters a candidate’s party affiliation. Carey, 614 F.3d at 201. This
restriction is both under-inclusive and overly broad as applied. It is overly broad
because candidates have a right to denote their affiliation, and iterations of that
affiliation, such as denoting that they are the most conservative Republican.
Insofar as the Commonwealth’s interests in a non-partisan election are
concerned, no amount of speech changes the fact that when voters go into the
booth party affiliations are not contained on the ballot itself, candidates are not
permitted to actually be nominated by the parties, and the provision is overly broad
because a prohibition on expressly indicating someone is the nominee is sufficient.
Rule 4.1(A)(6) is unconstitutional, both facially, and as applied.
D. Rule 4.1(A)(7), as interpreted by Defendants, violates the First

Amendment
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shall not (7) seek, accept, or use endorsements from a political organization.” The
JCC interprets this as including Plaintiffs usage of terms like “conservative,” or
“Republican” as well as their failure to disavow endorsements they have received
(but not sought or themselves used or sought) from Republican executive
committees to be violative of that Rule 4.1(A)(7). (Ver. Am. Compl., Doc. 13,
PageID#95-126). For the same reason that Rule 4.1(A)(6) is unconstitutionally
vague, so too is Rule 4.1(A)(7) to speech by a candidate as “the conservative
Republican,” “conservative” or “Republican.” The same is true with the failure to
satisfy strict scrutiny. Winter, 186 F. Supp. 3d 673, 685-687 and Winter, 834 F.3d
681, 690.
In terms of the “accept” clause and the purported need to disavow
endorsements a candidate has received (nut neither sought or used), the language is
vague, particularly in light of Comment 10 to the Rule provided by the Kentucky
Supreme Court: “A judge or judicial candidate is not required to disavow an
endorsement to avoid being deemed to have accepted it.” This “gotcha” is at the
heart of what a vagueness challenge is meant to protect against. Winter, 186 F.
Supp. 3d 673, 685-687.
But going further, this effort to require a disclaimer is a form of compelled
speech, and this Court has held that such requirements must also run the gauntlet of
17
strict scrutiny. Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307, 315-316
(6th Cir. 1998). Such a disclaimer, particularly in these instances, provides a
particularly troublesome “Damoclean” problem for candidates such as Mr. Fischer.
Winter, 186 F. Supp.3d 673, 686. That is because he has the right to announce his
affiliation with the Republican party. Carey, 614 F.3d at 201. And there is a due
process problem with this as well: is Mr. Fischer supposed to police every third-
party who might endorse him in the context of an active election?
We acknowledge of course, the fact that Kentucky has an interest in non-
partisan elections, and in the prevention of quid pro quo corruption. Winter, 834
F.3d 681, 690. A forced disclaimer, based on third-party speech, does not, and
cannot meet this requirement. As in Toledo Area AFL-CIO Council, such a
disclaimer requirement “undermines the effectiveness of the accompanying
political speech” of Plaintiffs’ association with the Republican party. 154 F.3d 307
at 315. And, as in Toledo Area AFL-CIO Council, there are less restrictive means
than some type of disclaimer or disavowment of third-party endorsements, such a
general requirement by the candidate to remind voters that the election is non-
partisan that Kentucky could have, but did not pursue.
Rule 4.1(A)(7), as construed by Defendants, is, therefore, unconstitutional
both facially and as-applied to Plaintiffs’ speech.
18
E. Rule 4.1(A)(13), as interpreted by Defendants, violates the First

Amendment
shall not (13) in connection with cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that are
inconsistent with the impartial* performance of the adjudicative duties of judicial
office.”
The JCC interprets Plaintiffs’ usage of signage or language that indicates
party affiliation or “conservative” language, as well as their affiliation with
Kentucky Right to Life and Northern Kentucky Right to Life and sharing the fact
of the endorsements by those organizations to them, as well as third parties putting
up “Choose Life” signs with his campaign signs to be violative of that Rule
4.1(A)(13). (Ver. Am. Compl., Doc. 13, PageID#95-126).
First, the Republican or conservative descriptions are subsumed in the prior
discussion – that is protected speech, well within the ambit and discussion of
Winter, 186 F. Supp. 3d 673, 685-687 and Winter, 834 F.3d 681, 690 – presenting
both narrow tailoring and vagueness problems, as discussed above. Which leaves
the Pro-Life affiliations and associations.
The Supreme Court addressed judicial candidate speech about issues in
Republican Party of Minn., 536 U.S. 765. There, the candidate “distributed
literature criticizing several Minnesota Supreme Court decisions on issues such as

19
crime, welfare, and abortion.” Id. at 768. As here, a complaint was filed. Id. The
Supreme Court likewise observed that every disputed issue of the day could
foreseeably come before a Court, particularly a state Supreme Court. Id. at 772.
And the Supreme Court observed that discussions of general judicial philosophy in
the context of a campaign “has little meaningful content for the electorate unless it
is exemplified by application to a particular issue of construction likely to come
before a court.” Id. at 773. The Supreme Court applied strict scrutiny to these
content-based restrictions. Id. at 774.
Measured against asserted state interests of impartiality and its appearance,
the Supreme Court held that restrictions on judicial candidates discussing hot
button issues, even those likely to come before the Court, could not be sustained.
Id. at 775. First, as to state interests of impartiality, the Supreme Court held there
was no state interest in impartiality as to issues, only as to particular parties or
controversies. Id. at 775-778. And, as to impartiality as to parties, preventing
candidates from speaking about issues, even those likely to come before the Court,
was not furthered by an issue-based gag order. Id. The Supreme Court then gave
examples about why the issue-gag rule was both underinclusive and overbroad. Id.
at 779-782. The Supreme Court observed that “the First Amendment does not
permit it to achieve its goal by leaving the principle of elections in place while
preventing candidates from discussing what the elections are about.” Id. at 788.
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Indeed, “[t]he greater power to dispense with elections altogether does not include
the lesser power to conduct elections under conditions of state-imposed voter
ignorance.” Id. Thus, a “canon of judicial conduct prohibiting candidates for
judicial election from announcing their views on disputed legal and political issues
violates the First Amendment.” Id.
This Court addressed the discussion of issues and commitments from
judicial candidates in Carey, 614 F.3d 189. There, the Court discussed
overbreadth and “unmooring” the prohibition from making case-specific pledges or
promises, something he denoted as “party-specific connotations,” versus the
discussion of “issues” that may come before the court. Id. at 207. The Court
distinguished “express . . . commitments” on particular cases or parties, which the
Defendants could regulate, with making commitments about “issues,” which they
cannot. Id. In Carey, the Court expressed a narrow form of prohibition on issue
commitments that are actually commitments about parties. Id. at 208. But
ultimately, the Court did not address the constitutionality of the canon, because
there was a dispute about its reach, and it remanded to the District Court to flesh
that issue out. Id.
In Winter, 834 F.3d 681, 694-695, this Court again remanded, because what
commitments were with respect to “issues” that were inconsistent with impartiality
was unclear (vague even). Id. This Court in Winter gave Defendants the benefit of
21
the doubt with a remand, with the assumption that they would act “sensibly” and
adopt a narrow and constitutional construction (one they abandon here). Id. at 695.
Well, so much for that assumption. We now know that they have tread into the
unconstitutional side of the line.
A few observations are in order on this score. First, Mr. Fischer and Mr.
Winter and their campaigns have never made an express commitment to rule for a
particular party or in a particular case a certain way. Second, they have generally
indicated that they are pro-life and are endorsed by pro-life groups. And, for
context, those groups have been involved in putting up his signs, along with their
own “Choose Life” signs. Third, they have made “broad pledges” about the rule of
law or separation of powers. And fourth, when questioned about particular rulings
on particular cases, in light of their pro-life stances and affiliations, they have
abhorred making particular promised about particular cases and parties, and instead
committed to putting any personal views aside and decide cases “based on the law
as written.”
Plainly, this is the type of issue discussion and affiliation that is on the First
Amendment protected side of the line under White, 536 U.S. 765 at 771-782, 787-
788, Carey, 614 F.3d 189 at 207-208, and Winter, 834 F.3d 681, 694-695. It is
divorced from any party, future party, case or controversy and one cannot even
22
infer that Mr. Fischer or Mr. Winter would rule a particular way insofar as a party,
case, or controversy is concerned.
We suspect that Defendants will respond that, following the Supreme
Court’s decision in Dobbs v. Jackson Women's Health Organization, 142 S. Ct.
2228 (2022), the issue of abortion is now thrust into the state courts (Kentucky
being no exception). That proposition ignores the fundamental holdings in White,
536 U.S. 765 at 771-782, 787-788, Carey, 614 F.3d 189 at 207-208, and Winter,
834 F.3d 681, 694-695, which presumed that the discussed issues would come
before the courts. A disputed view of the law in a controversial area of the law is
not enough to trigger the suppression of speech. Id. Quite the contrary, voters
have a fundamental right to know where their judicial candidates stand on
potentially disputed issues of law. Under White, “[t]he greater power to dispense
with elections altogether does not include the lesser power to conduct elections
under conditions of state-imposed voter ignorance.” 536 U.S. 765 at 788.
Rule 4.1(A)(13), as construed by Defendants, is, therefore, unconstitutional
both facially and as-applied to Mr. and Mr. Winter’s speech.
F. The remaining injunction factors favor entry of restraining order

relief and preliminary injunctive relief
Having demonstrated a likelihood of success on the merits, the remaining
factors collapse, including irreparable harm, City of Detroit, 568 F.3d 609 (abuse
of discretion not to grant preliminary injunction where constitutional violation

23
found); Beshear, 957 F.3d 610; Elrod, 427 U.S. 347, 373; Winter, 56 F. Supp. 3d
884, 901; Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.
1982); G & V Lounge, 23 F.3d 1071, 1079. Courts have steadfastly held that
"there is no public interest in enforcing a law that curtails debate and discussion
regarding issues of political import." Suster v. Marshall, 149 F.3d 523, 533 (6th
Cir. 1998) (quoting Citizens Against Rent Control/Coalition for Fair Housing v.
City of Berkeley, 454 U.S. 290, 299 (1981)).
An election is well underway for a seat on Kentucky’s Courts that will shape
the direction of those Courts for the next eight years. It will be concluded in the
next 14 days. Allowing Defendants to stifle First Amendment protected speech in
this context is irreparable – to Mr. Fischer and Mr. Winter – and to voters within
Kentucky’s Sixth Supreme Court District.
IV. Conclusion
Appellants respectfully request that an injunction pending appeal be granted.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (c)
chris@cwiestlaw.com
24
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
Bruns, Connell, Vollmar & Armstong
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
513/312-9890
/s/Zach Gottesman____________
Zach Gottesman (KBA 86288)
404 East 12 St., First Floor
zg@zgottesmanlaw.com
(513) 225-8997
Attorneys for Plaintiffs/Appellants
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing upon Counsel for the
Defendants/Appellees, this 24th day of October, 2022, by filing same with the
Court via its CM/ECF system, and by electronic mail upon Counsel for the
Defendants/Appellees, which will provide notice to all parties Counsel.
CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(g) and 6th Cir. R. 32(a), I certify that this Reply
contains 5,079 words. Because this exceeds the word-count limit established in
Fed. R. App. P. 27(d)(2)(A), a motion to file an overlength brief is being
contemporaneously filed. This response complies with the typeface requirements
of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in 14-point Times New Roman font using
Microsoft Word.
25
Case: 22-5938 Document:
Case: 2:22-cv-00121-KKC-EBA Doc #: 205 Filed:
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
JOSEPH FISCHER, et al., CIVIL ACTION NO. 2:22-cv-121-KKC

Plaintiffs,
v. OPINION AND ORDER
HON. KAREN THOMAS, et al.,

Defendants.
*** *** ***
This matter is before the Court on plaintiff Joseph Fischer’s motion for a temporary
restraining order (DE 3). Because the Court lacks jurisdiction to adjudicate the matter at its present
posture, the motion will be DENIED.
“[A] plaintiff satisfies the injury-in-fact requirement in the pre-enforcement context where
he alleges an intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by statute, and there exists a credible threat of prosecution thereunder.”
McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016) (internal quotations removed). Here, the
only issue regarding standing is whether there exists a credible threat. As it did in Winter v.
Wolnitzek, “the answer turns on whether the Commission’s letter carried with it a valid threat of
enforcement.” 834 F.3d 681, 687 (6th Cir. 2016).
The letters at issue here do not. In Winter, the plaintiff had standing because the Judicial
Conduct Commission had determined—and notified the parties in the letter—that there was
“probable cause for action.” Id. The standing issue hinged on this probable cause finding because
“a state agency’s probable cause finding provides a sufficient threat of enforcement to confer First
Amendment preenforcement standing.” Id. (citing Platt v. Bd. of Comm’rs on Grievances &
Discipline, 769 F.3d 447, 452 (6th Cir. 2014)). After Winter, the JCC changed its rules to eliminate
the probable cause determination that was vital to Winter’s standing in the previous case. See Ky.
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Sup. Ct. R. 4.170(1). Furthermore, the JCC says that the only determinations it has made at this
stage are whether the Commission has jurisdiction and whether the allegations of misconduct
would benefit from additional context—hence the letter requesting response. (Shaffer Aff., DE 17,
#1 at ¶¶ 5-10). In fact, “[d]uring the preliminary investigation phase, the JCC does not make
findings about the truth of facts asserted in the complaint, nor does the JCC decide whether a
violation of the Code of Judicial Conduct has occurred.” (Id. at ¶ 12). The letters that the JCC sent
plaintiffs make no mention of probable cause, nor do they outline any interpretation of judicial
canons or assert any opinion as to whether plaintiffs have violated anything. (See DE 13, # 1 and
#3). 1
Whether the Court is addressing facial or as-applied challenges, the questions of standing
and ripeness are distilled as such: Is there a credible threat of enforcement? Winter, 834 F.3d at
687. The answer here is no—not yet. If and when the Commission makes the requisite probable
cause determination, the issue will be ripe for review and the Court will consider Fischer’s claims
on merits.
Accordingly, it is hereby ORDERED that:
(1) plaintiff’s motion for a temporary restraining order and preliminary injunction (DE 3)
is DENIED.
(2) plaintiff’s motion for an injunction pending appeal (DE 19) is DENIED AS MOOT.
This 24th day of October 2022
1 Compare the Fischer and Winter letters from the JCC with the letter deemed a credible threat in
Kiser v. Reitz, 765 F.3d 601, 605 (6th Cir. 2014). There, the agency instructed the dentist what
procedures he could and could not perform, told him he must advertise in a specific way, and said all
of this after “concluding” an investigation.
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IN THE UNITED STATES DISTRICT COURT

COVINGTON DIVISION – CIVIL
JOSEPH FISCHER : Case No. 2:22-cv-00121
and :
FISCHER FOR SUPREME COURT :

COMMITTEE
:
and
:
ROBERT A. WINTER, JR.
:
Plaintiffs
v. :
Hon. KAREN A. THOMAS, :

in her official capacity
as Member, Judicial Conduct Commission:
and :
Hon. R. MICHAEL SULLIVAN :

in his official capacity
as Member, Judicial Conduct :
Commission
:
and
:
Hon. EDDY COLEMAN
in his official capacity :
as Member, Judicial Conduct
Commission :
and :
Hon. JEFF S. TAYLOR :

in his official capacity
Commission
:
and
:
1
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Hon. JOE E. ELLIS

in his official capacity :
as Member, Judicial Conduct
Commission :
and :
Hon. JANET LIVELY McCAULEY. :

in her official capacity
Commission
:
and
:
JIMMY SHAFFER,
in her official capacity :
as Executive Secretary, Judicial
Conduct Commission :
Defendants
:
PLAINTIFF’S AMENDED VERIFIED COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF
Plaintiffs, by and through counsel, for their Complaint, allege as follows:
INTRODUCTION
1. It is déjà vu all over again. This case is a response to the latest iteration by the Kentucky
Judicial Conduct Commission to suppress protected First Amendment speech in the context
of a judicial campaign, and in particular the threatened deprivation of Plaintiffs’ First
Amendment rights by the official capacity Defendants named herein. This action raises a
challenge to Rules 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13), in both facial and as-
applied challenges.
2
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PARTIES
2. At all relevant times herein, Plaintiff, Joseph Fischer, is a resident of Campbell County,
Kentucky, and was and is a candidate for Kentucky Supreme Court, 6th District for the
November, 2022 election, covering counties in Northern Kentucky. Plaintiff Fischer for
Kentucky Supreme Court Committee is his campaign committee. Plaintiff Robert A. Winter,
Jr. is a resident of Kenton County, Kentucky, and was and is a candidate for the Kentucky
Court of Appeals, 6th District, 2nd Division, for the November, 2022 election, also covering
counties in Northern Kentucky.
3. Defendants Hon. Karen Thomas, R. Michael Sullivan, Hon. Eddy Coleman, Hon. Jeff S.
Taylor, Hon. Joe E. Ellis, and Hon. Janet Lively McCauley are members of the Judicial
Conduct Commission (“JCC”), who are all sued in their official capacities. Defendant Jimmy
Shaffer is the Executive Secretary of the JCC. The JCC is responsible for, among other
things, enforcement of the Kentucky Code of Judicial Conduct, and associated rules, as well
as rules for the processing of complaints. The JCC accepts complaints from the public. For
the avoidance of doubt, the JCC does actively enforce and threatens to enforce, the Kentucky
Code of Judicial Conduct, including the rules challenged herein.
JURISDICTION AND VENUE
4. Subject matter jurisdiction over the claims and causes of action asserted by Plaintiffs in this
case is conferred on this Court pursuant to 42 U.S.C. §1983, 42 U.S.C. § 1988, 28 U.S.C.
§1331, 28 U.S.C. §1343, 28 U.S.C. §§ 2201 and 2202, and other applicable law.
5. Venue in this district is proper pursuant to 28 U.S.C. §1391 and other applicable law.
6. Venue in this division is appropriate, since all of the deprivations of Plaintiffs’ Constitutional
Rights occurred and were directed to Campbell and/or Kenton Counties, a Defendant resides
3
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in this District and Division, and future deprivations of Plaintiffs’ Constitutional Rights are
threatened and likely to occur in this division.
FACTS COMMON TO ALL CLAIMS
7. In 2022, Mr. Fischer was and is a candidate for Kentucky Supreme Court, for the 6th
Supreme Court District, which covers a number of Northern Kentucky counties. Similarly,
Mr. Winter was and is a candidate for Kentucky Court of Appeals, for the 6th Supreme Court
District, Second Division, which covers the same counties.
8. Mr. Fischer is a lifelong Republican, who has served as a Republican member of the
Kentucky House of Representatives for more than two decades. His affiliation with, support
of, and alignment with, the Republican party is longstanding and well-known. Mr. Winter is
likewise a lifelong Republican, whose affiliation with, support of, and alignment with, the
Republican party is longstanding and well-known.
9. The Sixth Kentucky Supreme Court District is largely Republican and it is becoming more
and more Republican over time.
10. Mr. Fischer’s opponent, the incumbent Supreme Court Justice, Justice Michelle Keller, is a
lifelong Democrat, was appointed by Democratic Governor Beshear, but who, since her
appointment, has changed her registration to independent. Similarly, Mr. Winter’s opponent,
the incumbent Kentucky Court of Appeals Judge Suzanne Cetrulo, is a lifelong Democrat,
was appointed by Democratic Governor Beshear, but has changed her registration to
independent.
11. Most of Justice Keller’s donors are registered Democrats, including prominent Democrats,
such as former Governor Steve Beshear and his wife, Jane.1 Most of Judge Cetrulo’s donors
1
See http://kref.ky.gov (last visited 10/3/2022).
4
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are registered Democrats, including prominent Democrats, and she has campaigned at events
with Democratic office holders and candidates including the current Democratic Lt.
Governor, Jacqueline Coleman:
12. Almost all of the people endorsing Justice Keller are registered Democrats.2 The same is true
for Judge Cetrulo.
13. Earlier this year, Mr. Fischer inquired of the Judicial Ethics Opinion for certain advice on his
campaign activities, including his affiliation with the Republican Party, and that body issued
an opinion, JE 130.3 Among other things, that opinion answered the following question in
the negative: “May a judicial campaign committee’s advertising include symbols closely
associated with a political party in its advertising (i.e., democratic – donkey & republican –
elephant)? No.” Allegedly doing so would “render hollow” the non-partisan nature of the
judicial elections.
2
https://www.kellerforkentucky.com/endorsements.html (last visited 10/3/2022).
3
https://kycourts.gov/Courts/Judicial-Ethics/Judicial%20Ethics%20Opinions/JE_130.pdf (last visited
10/3/2022).
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14. Mr. Fischer and his campaign have not been shy about his Republican party affiliation, and
his campaign materials generally denote: “Joe Fischer for Kentucky Supreme Court --- the
Conservative Republican.” Mr. Winter has similarly advertised that he is “conservative” in
his campaign signs, and has told voters that he is a “a Republican.” Mr. Fischer, Mr. Winter,
and their respective campaigns have never, however, expressly indicated that he is the
nominee of the Republican party. And for the avoidance of all doubt, all of Mr. Winter and
Mr. Fischer, and their campaign’s speech have been truthful and accurate. At times, Mr.
Fischer has utilized the following image, to include an elephant, in his campaign materials:
15. In light of JE Opinion JE 130, Mr. Fischer used a general elephant instead of the Republican
elephant.4 But for that opinion, and the JCC’s general threat of enforcement, he would have
used the Republican Elephant symbol (and still would/will do so but for that threat of
enforcement).
4
See:
6
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16. Mr. Fischer and Mr. Winter have both obtained, and are now using in campaign materials,
endorsements from both Kentucky Right to Life and Northern Kentucky Right to Life. They
both have long involvement with both organizations and Mr. Fischer, as a sitting state
legislator, sponsored certain pro-life legislation.
17. Those right to life organizations have taken issue with Mr. Fischer’s opponent, Justice Keller,
in part for her approval of abortions for out-of-state minors without their parents’ knowledge
or consent, while she sat on the Kentucky Court of Appeals.5 And, similarly, in the views of
those organizations, Judge Cetrulo has issued a pro-abortion decision within months of being
appointed to the Kentucky Court of Appeals by Governor Andy Beshear.
18. For the avoidance of all doubt, Right to Life groups, including Kentucky Right to Life and
Northern Kentucky Right to Life, in addition to their endorsements, are actively supporting
both Mr. Fischer and Mr. Winter’s campaigns, including through word-of-mouth
endorsements. Equally, right to life supporters have been actively engaged in a sign
campaign for candidates that they support, putting up both the candidate’s sign and their own
“Choose Life” signs with it. An example of this is:
5
https://www.cincinnati.com/story/news/politics/2014/10/27/abortion-issue-divides-supreme-court-
candidates-gop/18000733/ (last visited 10/3/2022).
7
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19. Insofar as these “Choose Life” signs are concerned, Mr. Fischer, Mr. Winter, and their
respective campaign teams have not erected these “Choose Life” signs, or put them up;
supporters of third party Right to Life groups have. That said, Mr. Fischer and Mr. Winter
have not been shy about his endorsements from Kentucky Right to Life or Northern
Kentucky Right to Life and Mr. Fischer shared a photo of one of them on his campaign
Facebook page.
20. For the avoidance of all doubt, Mr. Fischer and Mr. Winter have never, in the course of their
respective campaigns, made a promise or pledge to rule a particular way regarding any
particular party, particular case, or particular controversy.
21. In fact, when an individual questioned Mr. Fischer on his Facebook about his past and
present affiliations with Right to Life groups, this was his response (and is consistent with
how he, and for that matter Mr. Winter, have each generally addressed questions about
particular cases or parties):
8
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22. Mr. Fischer has, however, made general statements about issues, has made broad pledges
about his commitment to defending the rule of law and ensuring Kentucky’s judicial system
effectively serves all citizens of the Commonwealth, has indicated that he will not engage in
judicial activism, and has underscored his understanding of the importance of the separation
of powers in that it is the duty and responsibility of the legislature to make the laws, the
executive to enforce the laws, and the judiciary to interpret the laws. Similarly, Mr. Winter
has equally made similar statements about his commitment to the rule of law, not ever
engaging in judicial activism, and his commitment to the separation of powers.
23. Mr. Fischer and Mr. Winter have both received the endorsement of various county
Republican Party Executive Committees (and partisan elected officials) from within the 6 th
9
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Supreme Court District, and in the context of their campaigns have appeared before various
community and political groups to speak about their platforms and qualifications, including
attending certain Republican Party events on their own behalf, 6 but neither have used or
sought the endorsements of the Republican Party or partisan elected officials in either of their
campaigns, or any of their campaign materials, or in any of their public statements. Mr.
Fischer has made general references to his having served two decades in the Kentucky House
of Representatives, and it is common knowledge that he was a Republican member of that
body. Mr. Winter’s affiliation with the Republican party is equally well known.
24. On September 27, 2022, the Kentucky JCC penned a letter to Mr. Fischer. A true and
accurate copy of that letter is attached as Exhibit A. In it, the JCC observed that it received
complaints, it indicated that under SCR 4.170(1) it found that “following consideration and
discussion” of the complaints “there is a basis for investigation of a matter” within its
jurisdiction, and it directed Mr. Fischer to respond. In other words, that someone lodged a
complaint regarding conduct that the JCC determined is a probable violation of the Kentucky
Code of Judicial Conduct.
25. More specifically, the JCC’s September 27, 2022 letter, made an allegation of a Rule
4.1(A)(6) violation, which provides “a judge or judicial candidate shall not… (6) publicly
identify himself or herself as a nominee of a political organization.”
6
In the same vein, his opponent, Justice Michelle Keller, has appeared before similar groups. Justice
Keller, for instance, has given speeches to Emerge Kentucky, a Democratic Women’s candidate
incubation organization, and she has likewise appeared at events sponsored by both the Democratic and
Republican parties. And Judge Cetrulo has attended Democratic events, as the photos of her with
the Lt. Governor above depict.
10
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26. The JCC thusly interprets Mr. Fischer’s usage of signage that indicates that he is “the
conservative Republican” and his use of a generic elephant in his campaign materials, to
violate that Rule 4.1(A)(6).
27. Further, the JCC’s September 27, 2022 letter, likewise made an allegation of a Rule
4.1(A)(7) violation, which provides “a judge or judicial candidate shall not… (7) seek,
accept, or use endorsements from a political organization;”
conservative Republican” and his failure to disavow7 endorsements he has received (but not
sought or himself used) from Republican executive committees to be violative of Rule
4.1(A)(7).
29. Further, the JCC’s September 27, 2022 letter, made an allegation of a Rule 4.1(A)(13)
violation, which provides “a judge or judicial candidate shall not… (13) in connection with
cases, controversies, or issues that are likely to come before the court, make pledges,
promises, or commitments that are inconsistent with the impartial* performance of the
adjudicative duties of judicial office.”
conservative Republican,” his affiliation with Kentucky Right to Life and Northern Kentucky
Right to Life and sharing the fact of their endorsements, and third parties putting up “Choose
Life” signs with his campaign signs to be violative of that Rule 4.1(A)(13).
31. On October 3, 2022, the undersigned Counsel sent correspondence to the Kentucky Judicial
Conduct Commission. A true and accurate copy of that letter is attached as Exhibit B.
Among other things, that correspondence outlined, generally, the speech Mr. Fischer engaged
7
This is particularly curious in light of the commentary to the Rule in question that indicates that a
candidate does not have to disavow an endorsement to avoid the “accepting” provision.
11
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in, in Paragraphs 8 through 23 herein. It referenced the probable cause finding by the JCC,
as to violations it was alleging in light of that conduct, and asked the JCC to outline any
additional speech Mr. Fischer engaged in, that the JCC found as a violation, by 4:00 p.m. on
October 4, 2022. The JCC did not respond, confirming that Paragraphs 8 through 23 herein
constituted the basis of the complaints and action by the JCC.
32. Similarly, on September 27, 2022, the Kentucky JCC penned a letter to Mr. Winter. A true
and accurate copy of that letter is attached as Exhibit C. In it, the JCC observed that it
received complaints, it indicated that under SCR 4.170(1) it found that “following
consideration and discussion” of the complaints “there is a basis for investigation of a
matter” within its jurisdiction, and it directed Mr. Winter to respond. In other words, that
someone lodged a complaint regarding conduct that the JCC determined is a probable
violation of the Kentucky Code of Judicial Conduct.
33. Further, the JCC’s September 27, 2022 letter, likewise made an allegation of a Rule
4.1(A)(7) violation, which provides “a judge or judicial candidate shall not… (7) seek,
accept, or use endorsements from a political organization;”
34. The JCC thusly interprets Mr. Winter’s usage of signage that indicates that he is
“conservative” and his public statements that he is “a Republican,” and his failure to
disavow8 endorsements he has received (but not sought or himself used) from Republican
executive committees to be violative of Rule 4.1(A)(7).
35. Further, the JCC’s September 27, 2022 letter, made an allegation of a Rule 4.1(A)(13)
violation, which provides “a judge or judicial candidate shall not… (13) in connection with
cases, controversies, or issues that are likely to come before the court, make pledges,
8
This is particularly curious in light of the commentary to the Rule in question that indicates that a
candidate does not have to disavow an endorsement to avoid the “accepting” provision.
12
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promises, or commitments that are inconsistent with the impartial* performance of the
adjudicative duties of judicial office.”
36. The JCC thusly interprets Mr. Winter’s usage of signage that indicates that he is
“conservative,” his public speeches that he is “a Republican,” his affiliation with Kentucky
Right to Life and Northern Kentucky Right to Life, and third parties putting up “Choose
Life” signs with his campaign signs to be violative of that Rule 4.1(A)(13).
37. On October 6, 2022, Counsel for Mr. Winter sent correspondence to the Kentucky Judicial
Conduct Commission. A true and accurate copy of that letter is attached as Exhibit D.
Among other things, that correspondence outlined, generally, the speech Mr. Winter engaged
in, in Paragraphs 8 through 23 herein. It referenced the probable cause finding by the JCC,
as to violations it was alleging in light of that conduct, and asked the JCC to outline any
additional speech Mr. Winter engaged in, that the JCC found as a violation, by 5:00 p.m. on
October 7, 2022. The JCC has not responded to date, confirming that Paragraphs 8 through
23 herein constituted the basis of the complaints and action by the JCC.
38. At present, Mr. Fischer and Mr. Winter face a threat of imminent enforcement action by the
JCC for this First Amendment protected campaign related speech. Further, if either are not
successful in their present campaigns, they intend to run for judicial office again, and again
engage in the same speech.
39. However, at the present time, no formal action has been commenced by the JCC, and no
formal charges have been filed against Mr. Fischer or Mr. Winter under S.C.R. 4.180.
40. Thus, no action is “pending” in state court, since no formal charges have been filed.
41. Unless enjoined, all Defendants herein will continue to enforce Rules 4.1(A)(6), 4.1(A)(7),
and 4.1(A)(13) in a manner that is in contravention of Plaintiffs’ First Amendment Rights.
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42. In light of the holdings in Republic Party of Minnesota v. White, 536 U.S. 765 (2002), Carey
v. Wolnitzek, 614 F.3d 189, 203-204 (6th Cir. 2010), and Winter v. Wolntizek, 834 F. 3d 681
(6th Cir. 2016), which established that non-partisan candidates have the right to identify any
affiliations with political parties including the use of “the conservative Republican,” a
“conservative” or a “Republican,” and, as to issues and groups, Mr. Fischer, Mr. Winter, and
their respective campaigns can likewise use endorsements of groups such as Kentucky Right
to Life and Northern Kentucky Right to Life, and should not be forced to disavow
endorsements received from third parties; both have the right to state their position on issues.
Consequently, the threat of enforcement and/or any future enforcement action would be
brought: (i) in bad faith; (ii) solely to harass Mr. Fischer and Mr. Winter, and their
campaigns; and/or (iii) would be enforcing flagrantly and patently unconstitutional Judicial
Conduct Rules.
43. The actions set forth herein have deprived and continue to deprive Plaintiffs of their First
Amendment rights.
COUNT I – VIOLATION OF FIRST AMENDMENT
Part I – As Applied Challenge
44. Plaintiffs hereby reincorporates the preceding paragraphs as if fully set forth herein.
45. Plaintiffs are citizens of the United States of America.
46. Plaintiffs have a clearly established right under the United States Constitution and its statutes
to Freedom of Speech, Association, and Expression and other First Amendment guarantees.
47. Defendants, using their respective offices and acting under color of state law, violated
Plaintiffs’ First Amendment Rights, which deprived Plaintiffs, who are citizens of the United
States, of his rights of Free Speech and of Association, as guaranteed under the First
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Amendment of the U.S. Constitution, which rights are clearly established, and therefore
subjected themselves under 42 U.S.C. § 1983, to prospective injunctive relief, and
declaratory relief under 28 U.S.C. § 2201.
48. The First Amendment of the U.S. Constitution provides, in relevant part, that “Congress shall
make no law ... abridging the freedom of speech...” The First Amendment has been
incorporated under the Fourteenth Amendment to apply to the states, including the
Commonwealth of Kentucky, under Gitlow v. New York, 268 U.S. 652 (1925).
49. Defendants abused the authority of their respective offices and, while acting under color of
law and with knowledge of Plaintiffs’ established rights, used their offices to violate
Plaintiffs’ First Amendment rights.
50. The United States Supreme Court in Republic Party of Minnesota v. White, 536 U.S. 765
(2002), which involved a challenge to certain provisions of the Minnesota Judicial Canons,
held that free speech challenges involved an application of strict scrutiny.
51. Under the strict-scrutiny test, the state has the burden to prove that the challenged clause is
(1) narrowly tailored, to serve (2) a compelling state interest. Id. at 775. In order for the state
to show that the challenged clause is narrowly tailored, it must demonstrate that it does not
“unnecessarily circumscribe protected expression.” Id.
52. In two other cases, the Sixth Circuit examined judicial speech restrictions. Carey, 614 F.3d
189, 203-204; Winter, 834 F. 3d 681.
53. During the current election for Supreme Court Justice, Mr. Fischer, Mr. Winter, and their
campaigns engaged in the speech the Sixth Circuit deemed protected in Carey and Winter,
and they intend to continue to do so. A judicial candidate’s qualifications, education,
experiences, associations, and memberships are highly relevant in the voters’ effort to vet the
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candidates. Many voters want to become acquainted with candidates’ past and present
affiliations, associations, and memberships in political organizations like the Democrat and
Republican parties, as well as organizations such as right to life organizations.
54. The voters perceive these memberships, affiliations, or associations as indications of the
candidates’ guiding philosophies and principles that influence judicial decision making. Mr.
Fischer and Mr. Winter each truthfully informed the voters about their party affiliations
within their campaign materials.
55. Mr. Fischer, Mr. Winter, and their campaigns did not falsely indicate that the campaign was
partisan, but what they did was identify their values by Mr. Fischer truthfully acknowledging
he is “the Conservative Republican,” and Mr. Winter identifying himself as “conservative” in
campaign literature, and “a Republican” in campaign speeches, to allow the voters to decide
what impact, if any, that information should have at the ballot box. In the same vein,
discussion of issues such as being pro-life, or being endorsed by Right to Life groups, is well
within the ambit of protected discussion of issued under White, Carey, and Winter.
56. Plaintiffs seek declaratory relief, and prospective injunctive relief under 42 U.S.C. 1983 and
28 U.S.C. §§ 2201 and 2202, declaring Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13)
unconstitutional, as applied, to the speech and campaign activities set forth in Paragraphs 7 to
37 herein. Plaintiffs likewise seek a permanent injunction enjoining the enforcement of Rule
4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13), as applied to any and/or all of the foregoing
scenarios. Plaintiffs further seek their reasonable attorney fees under 42 U.S.C. § 1988.
Part II – Facial Challenge
57. Plaintiffs hereby reincorporate the preceding paragraphs as if fully set forth herein.
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58. In addition to the foregoing, the impermissible applications of the law are substantial when
compared against any legitimate sweep of the Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule
4.1(A)(13).
59. Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13) are void for vagueness. For instance,
Rule 4.1(A)(6) does not explain what it means to identify himself or herself as the nominee,
but apparently saying “the conservative Republican” is a violation. It is unclear what other
violations there may be, but apparently, expressly indicating that someone is a nominee is not
the sole violation. This is also an end-run by the JCC around the holding in Winter, 834 F.
3d 681. There are also void for vagueness problems with Rule 4.1(A)(7), since the JCC
interprets and enforces it in a manner that apparently requires disavowal of third-party
endorsements notwithstanding Kentucky Supreme Court commentary to the contrary, and
considers the usage of “the conservative Republican,” the term “conservative” or the term “a
Republican,” in campaign literature to constitute a violation. Finally, Rule 4.1(A)(13) is void
for vagueness, since it prohibits the discussion of issues, even when those issues are divorced
from particular parties or cases.
60. Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13) fail to establish standards that are
sufficient to guard against the arbitrary deprivation of liberty interests.
61. A substantial number of instances exist in which Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule
4.1(A)(13) cannot be applied constitutionally. For instance, it is obvious that the JCC
believes a violation exists to express that a candidate is “the conservative Republican,”
“conservative,” or “a Republican.”
62. Plaintiffs further seek declaratory relief, and prospective injunctive relief under 42 U.S.C.
1983 and 28 U.S.C. §§ 2201 and 2202, declaring Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule
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4.1(A)(13), as interpreted by the JCC, unconstitutional on their face; Plaintiffs likewise seek
a permanent injunction enjoining the enforcement of these provisions. Plaintiffs further seek
their reasonable attorney fees under 42 U.S.C. § 1988.
Part III – Emergency Injunctive Relief
63. Plaintiffs hereby reincorporate the preceding paragraphs as if fully set forth herein.
64. Mr. Fischer seeks emergency relief, including a preliminary injunction or temporary
restraining order, so that he can engage in the following protected speech between now and
the November 8, 2022 general election, which protected speech is otherwise being chilled
from Defendants’ threat of enforcement against him: (i) to permit him to truthfully say that
he is “the conservative Republican;” (ii) to permit him to utilize the Republican party’s
elephant symbol to denote his affiliation with that party, JE 130 notwithstanding; (iii) to
permit him to use and advertise his endorsements from Kentucky Right to Life and Northern
Kentucky Right to Life; (iv) to permit general references to Mr. Fischer having served two
decades in the Kentucky House of Representatives; (v) to permit Mr. Fischer to continue to
indicate that he is committed to defending the rule of law, ensuring Kentucky’s judicial
system effectively serves all citizens of the Commonwealth, that he will not engage in
judicial activism, and to continue to underscore his understanding of the importance of the
separation of powers in that it is the duty and responsibility of the legislature to make the
laws, the executive to enforce the laws, and the judiciary to interpret the laws; and (vi) to not
require Mr. Fischer to disavow endorsements he has received from Republican Party
executive committees.
65. Mr. Winter likewise seeks emergency relief, including a preliminary injunction or temporary
restraining order, so that he can engage in the following protected speech between now and
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the November 8, 2022 general election, which protected speech is otherwise being chilled
from Defendants’ threat of enforcement against him: (i) to permit him to truthfully say that
he is “conservative” and “a Republican;” (ii) to permit him to use and advertise his
endorsements from Kentucky Right to Life and Northern Kentucky Right to Life; (iii) to
permit Mr. Winter to continue to indicate that he is committed to defending the rule of law,
that he will not engage in judicial activism, and to continue to underscore his understanding
of the importance of the separation of powers in that it is the duty and responsibility of the
legislature to make the laws, the executive to enforce the laws, and the judiciary to interpret
the laws; and (iv) to not require Mr. Winter to disavow endorsements he has received from
Republican Party executive committees.
66. Mr. Fischer and Mr. Winter each likewise seek restraining order relief to prevent the
initiation of a formal complaint over the foregoing protected First Amendment speech.
WHEREFORE, Plaintiffs demand judgment as prayed for, including:
A. That this Court issue a declaration that Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule
4.1(A)(13) of the Kentucky Rules of Judicial Conduct are unconstitutional on their face
because of overbreadth or vagueness;
B. That this Court issue a declaration that Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule
4.1(A)(13) are unconstitutional as applied to the campaign speech identified herein;
C. That this Court award a temporary restraining order and/or preliminary injunction,
enjoining enforcement of these Rules, on an as-applied or facial basis as respects the
2022 election cycle, to permit truthful protected campaign speech as set forth in
Paragraphs 64 and 65 and to enjoin the institution of formal proceedings;
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D. That this Court award permanent injunctive relief, prohibiting the further enforcement of
Rule 4.1(A)(6), Rule 4.1(A)(7), and Rule 4.1(A)(13) of the Kentucky Rules of Judicial
Conduct, or, in the alternative, prohibiting enforcement of Rule 4.1(A)(6), Rule
4.1(A)(7), and Rule 4.1(A)(13) of the Kentucky Rules of Judicial Conduct as applied to
the speech of Mr. Fischer and Mr. Winter as set forth in greater detail herein;
E. That Plaintiffs be awarded their costs in this action, including reasonable attorney fees
under 42 U.S.C. § 1988; and
F. Such other relief as this Court shall deem just and proper.
Respectfully submitted,

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
/s/Thomas B. Bruns
Bruns, Connell, Vollmar & Armstrong, LLC
4555 Lake Forest Drive, Suite 330
513-312-9890
tbruns@bcvalaw.com
(513) 225-8997
Attorneys for Plaintiffs
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I certify that I have served a copy of the foregoing upon Counsel for the Defendants, this
7 day of October, 2022, by service of same via CM/ECF.

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Chris Wiest, Attorney at Law, PLLC

25 Town Center Blvd, STE 104
(513)257-1895 (cellular)
chris@cwiestlaw.com
*admitted in Kentucky and Ohio
October 3, 2022
Ms. Jimmy Shaffer
By Email Only:
JudicialConductCommission@kycourts.net
Re: Joseph Fischer
Dear Ms. Shaffer:
Please allow this correspondence to serve, first, as notice that I will be representing Joe
Fischer in relation to the “complaints” filed against him (I also have been engaged to represent
the Fischer for Kentucky Supreme Court committee). We understand that, under SCR 4.170(1),
the Judicial Conduct Commission (“JCC”) has determined that “there is a basis for investigation
of a matter” within the jurisdiction of the JCC; or, in other words, that someone has lodged a
complaint into conduct that the JCC has determined is a probable violation of the Kentucky Code
of Judicial Conduct.
While we understand that the name of the Complainant “shall not be included in the
notice” under SCR 4.170(1), the notice provided to Mr. Fischer is vague. It is not clear what,
exactly, he is alleged to have done, or what conduct he is alleged to have violated. Any
additional context (or perhaps a redacted copy of the Complaints with just the factual basis for
same) would be appreciated.
We presume, based on what we can discern from the notice, that the allegations and
finding by the JCC of a potential violation stem from his campaign materials that state “Joe
Fischer for Kentucky Supreme Court --- the Conservative Republican.”
At times, he has utilized the following image, to include an elephant, in his campaign
materials:
Earlier this year, Mr. Fischer sought, and obtained, an opinion from the Kentucky
Judicial Ethics Committee (Opinion JE-130). In that opinion, Mr. Fischer asked about using the
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Republican Party’s elephant symbol in his materials, and was told that he could not do so (that
doing so would allegedly “render hollow” Kentucky’s Constitutional provision on non-partisan
elections). So he used a general elephant. But for that opinion, and the JCC’s general threat of
enforcement, he would have used the Republican Elephant symbol (and still would/will do so).
In any event, we presume that his use of the general elephant symbol is also a basis of the
complaint and the JCC’s action.
We also presume that the complaints and finding from the JCC about allegedly making
pledges, promises, and commitments, also stems from his having obtained and his now using in
campaign materials, his endorsements from Kentucky Right to Life and Northern Kentucky
Right to Life, and his long involvement with both organizations.
We note that Mr. Fischer has never, in the course of his campaign, made a promise or
pledge to rule a particular way regarding any particular party, case, or controversy. He has,
however, made general statements about issues, and has made broad pledges about his
commitment to defending the rule of law, ensuring Kentucky’s judicial system effectively serves
all citizens of the Commonwealth, has indicated that he will not engage in judicial activism, and
has underscored his understanding of the importance of the separation of powers in that it is the
duty and responsibility of the legislature to make the laws, the executive to enforce the laws, and
the judiciary to interpret the laws.
In fact, when an individual questioned Mr. Fischer on his Facebook about his past and
present affiliations with Right to Life groups, this was his response (and is consistent with how
he has generally addressed questions about particular issues):
2
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While we note that Mr. Fischer has received the endorsement of various county
Republican Party Executive Committees (and partisan elected officials) from within the 6th
Supreme Court District, and in the context of his campaign has appeared before various
community and political groups to speak about his platform and qualifications, including
attending certain Republican Party events on his own behalf, 1 he has not used or sought the
endorsements of the Republican Party or partisan elected officials, and you will find nothing to
that end of any of his campaign materials (or in any of his public statements). You may find,
however, general references to his having served two decades in the Kentucky House of
Representatives, and it is common knowledge that he was a Republican member of that body.
If our understanding set forth above of the factual basis of the JCC’s September 27, 2022
correspondence, or any other factual statements is inaccurate, or there are other facts, other than
those set forth above, which serve as the basis of the action, please let me know immediately,
and in any event not later than 4:00 p.m. Tuesday, October 4, 2022, so that we can address them.
While we are corresponding, I wanted to raise one other issue.
Sincerely,
Christopher Wiest
1
In the same vein, we have video of his opponent, Justice Michelle Keller, telling a conservative group that there is
no right to an abortion under the Kentucky Constitution; and we have her talk to a Democratic group taking the
opposite position. Justice Keller, for instance, has given speeches to Emerge Kentucky, a Democratic Women’s
candidate incubation organization, and she has likewise appeared at events sponsored by both the Democratic and
Republican parties.
3
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MEMBERS: ALTERNATES:
R. MICHAEL SULLIVAN, CHAIR CARROLL M. "TRIP" REDFORD, III
OWENSBORO LEXINGTON
JUDGE JEFF 8. TAYLOR JUDGE GLENN E. ACREE
COMMONWEALTH OF KENTUCKY
OWENSBORO LEXINGTON
JUDICIAL CONDUCT COMMISSION
JUDGE EDDY COLEMAN JUDGE MITCH PERRY
PIKEVILLE
P.O. Box 4266
LOUISVILLE
FRANKFORT, KENTUCKY 40604-4266
JUDGE KAREN THOMAS PHONE 502-564-1231 FAX 502-564-1233 JUDGE ELIZABETH A. CHANDLER
COVINGTON CARROLLTON
DR. JOE E. ELLIS
BENTON
JANET LIVELY MCCAULEY EXECUTIVE SECRETARY

LOUISVILLE Ms. JIMMY SHAFFER
September 27, 2022
PERSONAL AND CONFIDENTIAL
Robert Winter, Jr.

P.O. Box 175883
Fort Mitchell, KY 41017-5883
RE: JCC Case Number 2022-249
Dear Mr. Winter
This is to advise that a complaint has been filed .against you with the Judicial Conduct
Commission relative to your campaign for judge of the Kentucky Court of Appeals.
The complaint alleges you have engaged in political or campaign activity inconsistent with the
independence, integrity, or impartiality of the judiciary, including seeking, accepting, and using
endorsements from the Republican Party and by making pledges, promises or commitments in
connection with cases, controversies, or issues likely to come before the Court - specifically the
issue of abortion.
Following consideration and discussion of the complaint, the Commission requests that you file a
written response to the allegations. Please submit your response on or before October 24, 2022,
· by mailing it to the address on this letter.
The Commission has further directed me to invite you to participate in an informal conference
during which the Commission would like to discuss the allegations in greater detail. The
Commission's meeting is scheduled for October 28, 2022, at 4:00 p.m., EST, in the Keeneland
conference room at the Embassy Suites Hotel in Lexington, Kentucky. The hotel is located on
Newtown Pike immediately off U.S. I-75/I-64, exit 115. The Keeneland room can be accessed
from both the front door of the hotel and the door on the left of the building. If you enter the
building from the left side door, the Keeneland room willbe to your right before you reach the
main desk to the hotel. If you accept this invitation, please arrive on time so the conference may
begin at its scheduled time. Please wait outside the room where the Chairperson will greet you
prior to the start of the conference.
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The Commission wiUhave reviewed your response prior to the conference, but will typically,
ask an attendee to begin with any additional information they would like to add to their response.
The remainder of the time is reserved for discussion between the attendee and the Commission
members.
Please advise whether you accept this invitation and plan to attend this conference. If you plan
to attend and have counsel represent you, please have counsel file a written entry of appearance_
prior to the conference.
Please contact my office if you have any questions concerning this matter.
Sincere!~
(2¥,
. Jimmy Shaffer ~
u
Executive Secretaryu
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Zachary J. Smith
Attorney at Law
P.O. Box 75310
Fort Thomas, Kentucky 41075
Telephone: (859)429-8254
Facsimile: 859-374-6301
Email: Zjsmithlaw@protonmail.com
October 6, 2022
Ms. Jimmy Shaffer
By Email Only:
JudicialConductCommission@kycourts.net
Re: Bob Winter
Dear Ms. Shaffer:
Please allow this correspondence to serve, first, as notice that I will be

representing Bob Winter in relation to the complaint filed against him. We understand
that, under SCR 4.170(1), the Judicial Conduct Commission (“JCC”) has determined
that “there is a basis for investigation of a matter” within the jurisdiction of the JCC; or,
in other words, that someone has lodged a complaint into conduct that the JCC has
determined is a probable violation of the Kentucky Code of Judicial Conduct.
While we understand that the name of the Complainant “shall not be included in
the notice” under SCR 4.170(1), the notice provided to Mr. Winter is vague. It is not
clear what, exactly, he is alleged to have done, or what conduct he is alleged to have
violated. Any additional context (or perhaps a redacted copy of the Complaints with just
the factual basis for same) would be appreciated.
We presume, based on what we can discern from the notice, that the allegations
and finding by the JCC of a potential violation stem from his campaign materials that
state that Mr. Winter is “conservative.” He has also identified himself as “a Republican”
when campaigning.
We also presume that the complaints and finding from the JCC about allegedly
making pledges, promises, and commitments, also stems from his having obtained and
his now using in campaign materials, his endorsements from Kentucky Right to Life and
Northern Kentucky Right to Life, and his long involvement with both organizations.
We note that Mr. Winter has never, in the course of his campaign, made a
promise or pledge to rule a particular way regarding any particular party, case, or
controversy. He has, however, made general statements about issues, and has made
broad pledges about his commitment to defending the rule of law, has indicated that he
will not engage in judicial activism, and has underscored his understanding of the
importance of the separation of powers in that it is the duty and responsibility of the
legislature to make the laws, the executive to enforce the laws, and the judiciary to
interpret the laws.
When questioned about particular rulings he will render in light of issues, Mr.
Winter has always made the statement that he will not make any promise about any
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ruling, but commits looking at the facts, the applicable law, and applying that law in an
impartial manner to the case he is called on to resolve, notwithstanding any personal
beliefs.
While we note that Mr. Winter has received the endorsement of various county
Republican Party Executive Committees (and partisan elected officials) from within the
6th Supreme Court District, and in the context of his campaign has appeared before
various community and political groups to speak about his platform and qualifications,
including attending certain Republican Party events on his own behalf, he has not used
or sought the endorsements of the Republican Party or partisan elected officials, and
you will find nothing to that end of any of his campaign materials (or in any of his public
statements).
If our understanding set forth above of the factual basis of the JCC’s September
27, 2022 correspondence, or any other factual statements is inaccurate, or there are
other facts, other than those set forth above, which serve as the basis of the action,
please let me know immediately, and in any event not later than 5:00 p.m. Friday,
October 7, 2022, so that we can address them.
Sincerely,
/s/ ZACH SMITH
Zachary J. Smith, Esq.
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NORTHERN DIVISION AT COVINGTON
CIVIL MINUTES – GENERAL
Case No. 2:22-cv-121-KKC-EBA At Lexington Date October 7, 2022
STYLE: Joseph Fischer, et al. v. Hon. Karen A. Thomas, et al.
PRESENT: HON. KAREN K. CALDWELL, UNITED STATES DISTRICT JUDGE
Genia Denisio Elaine Haberer

Deputy Clerk Court Reporter
Attorneys Present For Plaintiffs Attorneys Present For Defendants

Christopher David Wiest Jeffrey C. Mando
Thomas B. Bruns Olivia F. Amlung
PROCEEDINGS: TELEPHONIC MOTION HEARING
The Court conducted a Telephonic Hearing on the plaintiffs’ Emergency Motion for Temporary
Restraining Order and Preliminary Injunction (DE #3). The Court heard statements of counsel.
IT IS ORDERED that counsel for the parties shall FILE supplemental memoranda by OCTOBER 11,
2022. The Court will take the Motion (DE #3) UNDER ADVISEMENT. A written Order will be entered.
Copies: COR
Initials of Deputy Clerk gld
TIC: 43 min
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COVINGTON DIVISION
CASE NO. 2:22-CV-00121-KCC-EBA
JOSEPH FISCHER, et al. PLAINTIFFS
v.
HON. KAREN THOMAS, et al. DEFENDANTS
AFFIDAVIT OF JIMMY SHAFFER
Having first been duly cautioned and sworn, the Affiant, Jimmy Shaffer, states for her
Affidavit as follows:
1. I, Jimmy Shaffer, am the duly appointed Executive Secretary for the Kentucky
Judicial Conduct Commission (“JCC”).
2. As part of my duties I am the official custodian of JCC records.
3. I am also an attorney licensed to practice law in the Commonwealth of
Kentucky.
4. The JCC receives hundreds of complaints each year—during the 2020-21
Fiscal Year, the JCC received 245 complaints.
5. When the JCC receives a complaint, I first review to ensure that the complaint
concerns a matter within the JCC’s jurisdiction as set out in SCR 4.020. Matters within the
JCC’s jurisdiction are all those 1) made against an individual subject to the JCC’s authority,
and 2) alleging misconduct as described in SCR 4.020(1)(b). Examples of matters outside of
the JCC’s jurisdiction are complaints against federal judges or county judge executives.
1
EXHIBIT 1
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6. A copy of the JCC’s Complaint Process FAQ, which can be found on the JCC’s
webpage at: https://kycourts.gov/Courts/JCC%20Documents/JCCFlyer.pdf, is attached as
Exhibit A.
7. Once determined that the complaint falls within the JCC’s jurisdiction, the
complaint is presented to the JCC at its next meeting. At that time, the JCC decides to either
1) take no action, or 2) conduct further inquiry.
8. Most complaints are easily investigated simply by accessing and reviewing
AOC records. For example, complaints in which a litigant or attorney alleges mistreatment
by a judge can be easily investigated by obtaining courtroom videos of the interactions. Other
complaints do not merit further investigation because they essentially seek appellate review
of a judicial order. A small portion of complaints, however, require additional context and
information.
9. When a complaint makes allegations which are not easily reviewed and the
JCC feels it would benefit from additional information, I provide notice of the preliminary
investigation to the judge or candidate as required by SCR 4.170(2).
10. In such circumstances where the JCC would like additional input or context
about the allegations from the judge, I send a letter inviting the judge to submit a written
response and, if the JCC feels it would be helpful to understand the context of the allegations,
to participate in an informal conference. Nothing in the letter nor the Supreme Court Rules
suggests that a response is required or expected.
11. During the 2020-21 Fiscal Year, I sent 19 letters to judges and candidates
notifying them that complaints had been filed against them and providing the opportunity to
2
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submit additional information as a part of the preliminary investigation process. Out of those
19 investigations, only four (4) ultimately resulted in action by the JCC.
12. During the preliminary investigation phase, the JCC does not make findings
about the truth of facts asserted in the complaint, nor does the JCC decide whether a violation
of the Code of Judicial Conduct has occurred.
13. It is not until the conclusion of the preliminary investigation that the JCC must
determine whether formal proceedings should be initiated.
14. However, before formal proceedings are initiated, the JCC shall afford the
judge or candidate under investigation an opportunity to examine all factual information,
including the name of the complainant if relevant, and shall afford the judge an opportunity
to furnish to the Commission any information the judge may desire bearing on the
investigation. This opportunity for inspection and response by the judge or candidate is
separate from the opportunity to provide additional information as requested during the
preliminary investigation by SCR 4.170(2).
15. Because the preliminary investigation process is entirely confidential
pursuant to SCR 4.130, I am not at liberty to disclose any specifics with respect to the
complaints or preliminary investigations which may be the subject of Fischer, et al. v. Judge
Thomas, et al., EDKY 2:22-CV-00121.
16. However, I can confirm that the JCC has not voted to initiate formal
proceedings against either Joseph Fischer or Robert Winter as of the date of this affidavit,
nor has the JCC made any threats to do so.
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EASTERN DISTRICT OF KENTUCKY – (Covington)
JOSEPH FISCHER, et. al. : Case No.: 2:22-cv-121-KKC
Plaintiffs :
v. :
HON. KAREN THOMAS, et. al. :
Defendants :
DECLARATION OF JOSEPH FISCHER

Pursuant to 28 U.S.C. §1746, the undersigned Joseph Fischer, makes the following declaration,
under penalty of perjury under the laws of the United States of America, that the facts contained
herein are true and correct to the best of my knowledge and belief and that such facts are made
based on my personal knowledge:
1. My name is Joseph Fischer, and I am one of the Plaintiffs in the above captioned
matter. I am a candidate for the Kentucky Supreme Court, in the 2022 election.
2. I am aware that the JCC views prompt discontinuation of activities they deem to be
violations of the Rules of Judicial Conduct to warrant lesser sanctions.1
3. I am also aware that contact with partisan elected officials has drawn enforcement
action from the JCC over Rule 4.1(A)(7).2
1
See 2021 JCC Action:
https://kycourts.gov/Courts/JCC%20Actions%20Documents/privatereprimand06142021.pdf (last
accessed 10/8/2022).
2


1
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4. A true and accurate copy of the letter I received from the Judicial Conduct
Commission (“JCC”) earlier this week dated September 27, 2022 is attached as
Exhibit 1 to this Declaration.
5. The 2022 letter indicated that complaints had been filed against me. It first indicated
that the complaints alleged that I was “publicly identifying [myself] as the nominee of
the Republican Party,” which tracks the language of Kentucky Judicial Conduct Rule
4.1(A)(6). It then indicated I was “seeking, accepting, and using endorsements from
the Republican Party,” which tracks the language of Kentucky Judicial Conduct Rule
4.1(A)(7). It then indicated that I was accused of “making pledges, promises or
commitments in connection with cases, controversies, or issues likely to come before
the Court - specifically the issue of abortion.” That tracks the language of Kentucky
Judicial Conduct Rule 4.1(A)(13).
6. As the Verified Amended Complaint indicated, I have used the term “the
conservative Republican” to describe myself in campaign literature and signage, and I
have utilized an elephant. I have touted my endorsements from Kentucky Right to
Life and Northern Kentucky Right to Life in my campaign literature and on the
campaign trail and have indicated that I am “Pro Life.”
7. People associated with Kentucky Right to Life and Northern Kentucky Right to Life
have been erecting my signs, with a “Choose Life” sign next to it.
8. I have received the endorsement of various Republican elected officials and executive
committees, but have not sought them, nor have I used them in my campaign. But I
decline to disavow them, because I am affiliated with the Republican Party, and I can
2
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think of no effective way to do so in a manner that would not undermine my truthful
statement that I am a registered Republican and have been for some time.
9. The September 27, 2022 JCC letter, at Exhibit 1, indicated that the JCC had
considered and discussed the complaint lodged against me, and it “request[ed]” that I
submit a response. The September 27, 2022 JCC letter, at Exhibit 1, went further in
that it “invited” me to “to participate in an informal conference during which the
Commission would like to discuss the allegations in greater detail.” That
correspondence likewise indicated that “[i]f you plan to attend and have counsel
represent you, please have counsel file a written entry of appearance.”
10. I do not view it as an option but instead a mandatory requirement. I likewise view the
statement about the appearance of counsel, and the need of any such attorney to enter
a formal “entry of appearance” to denote something more than an informal
“discussion” with the JCC, but instead the predicate to the institution of formal
charges.
11. I find significant that this JCC correspondence came in the month prior to the 2022
General Election. The JCC could have held the complaints and its correspondence
directed to me, until after the election, rather than to inject itself into an impending
election process. I think it was and is designed to put me into a Hobson’s choice:
discontinue protected speech, or lose the benefit of immediately ceasing activities for
a reduced penalty later. In light of this correspondence, I am considering whether it is
appropriate to pull my signage, which denotes that I am “the conservative
Republican,” all over the 6th Supreme Court District, which I suspect was and is the
desired result of all of this.
3
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12. I subjectively (and I would say objectively) view the letter in question as a credible
threat of impending enforcement.
Pursuant to 28 U.S.C. § 1746, I declare under penalties of perjury under the laws of the United
States of America that the foregoing Declaration is true and correct to the best of my knowledge
and belief and that such facts are made based on my personal knowledge.
Executed on tt:fJGr. 1 2022.
4
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Plaintiffs :
v. :
Defendants :
DECLARATION OF ROBERT A. WINTER, JR.

Pursuant to 28 U.S.C. §1746, the undersigned Robert A. Winter, Jr., makes the following
declaration, under penalty of perjury under the laws of the United States of America, that the
facts contained herein are true and correct to the best of my knowledge and belief and that such
facts are made based on my personal knowledge:
1. My name is Robert A. Winter, Jr., and I am one of the Plaintiffs in the above
captioned matter. I am a candidate for the Kentucky Court of Appeals, Second
Division, in the 2022 election. I was also a Plaintiff in the Winter v. Wolnitzek,
matter, following my candidacy for Kenton Circuit Judge in 2014.
2. In that 2014 campaign, I utilized truthful statements about being a Republican and my
opponents being Democrats in my literature. A true and accurate copy of the letter I
received from the Judicial Conduct Commission (“JCC”) is attached as Exhibit 1 to
this Declaration. In that 2014 letter, the JCC indicated that it had received complaints
from the public about my sending out truthful mailers about me being a registered
Republican and my opponents being registered Democrats, that the JCC met and
discussed the complaint, and “requested” that I submit a written response to the
complaints. The JCC did not, however, ask me to appear at a meeting of the JCC,
1
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and did not indicate that I had the “option” to appear with Counsel who should file an
entry of appearance. It appeared to me then that I needed to obtain counsel – I
viewed that threat of enforcement as credible. I also note that, from my perspective,
the 2014 letter from the JCC occurred after the campaign, so at least I did not
perceive the 2014 letter to be an attempt to alter in-progress campaign activities.
3. I am aware that the JCC views prompt discontinuation of activities they deem to be
violations of the Rules of Judicial Conduct to warrant lesser sanctions.1
4. I am also aware that contact with partisan elected officials has drawn enforcement
action from the JCC over Rule 4.1(A)(7).2
5. A true and accurate copy of the letter I received from the Judicial Conduct
Commission (“JCC”) earlier this week dated September 27, 2022 (though I received
it on October 5), is attached as Exhibit 2 to this Declaration. That letter is different,
and not in a materially beneficial way from my perspective, to the letter I received
from the JCC in 2014.
6. Like the 2014 letter, the September 27, 2022 letter indicated that complaints had been
filed against me. It first indicated that the complaint alleged that I was “seeking,
accepting, and using endorsements from the Republican Party,” which tracks the
language of Kentucky Judicial Conduct Rule 4.1(A)(7). It then indicated that I was
accused of “making pledges, promises or commitments in connection with cases,
1
See 2021 JCC Action:
https://kycourts.gov/Courts/JCC%20Actions%20Documents/privatereprimand06142021.pdf (last
accessed 10/8/2022).
2
2
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controversies, or issues likely to come before the Court - specifically the issue of
abortion.”
7. As the Verified Amended Complaint indicated, I have used the term “conservative”
to describe me in campaign literature and signage, and have indicated that I am “a
Republican” in campaign speeches. I have touted my endorsements from Kentucky
Right to Life and Northern Kentucky Right to Life in my campaign literature and on
the campaign trail and have indicated that I am “Pro Life.”
8. People associated with Kentucky Right to Life and Northern Kentucky Right to Life
have been erecting my signs, with a “Choose Life” sign next to it.
9. I have received the endorsement of various Republican elected officials and executive
committees, but have not sought them, nor have I used them in my campaign.
However, I decline to disavow them, because I am affiliated with the Republican
Party, and I can think of no effective way to do so in a manner that would not
undermine my truthful statement that I am a registered Republican and have been for
some time.
10. Like the 2014 correspondence that prompted Winter v. Wolntizek, the September 27,
2022 JCC letter, at Exhibit 2, also indicated that the JCC had considered and
discussed the complaint lodged against me, and it “request[ed]” that I submit a
response. But the September 27, 2022 JCC letter, at Exhibit 2, went further than the
2014 correspondence, in that it “invited” me to “to participate in an informal
conference during which the Commission would like to discuss the allegations in
greater detail.” That correspondence likewise indicated that “[i]f you plan to attend
3
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and have counsel represent you, please have counsel file a written entry of
appearance.”
11. I do not view it as an option but instead a mandatory requirement to submit a written
response. I view the statement about the appearance of counsel, and the need of any
such attorney to enter a formal “entry of appearance” to denote something more than
an informal “chat,” but instead the predicate to the institution of formal charges.
12. I find significant that this correspondence came in the 30 days prior to the 2022
General Election. The JCC could have held the complaints and its correspondence
directed to me, until after the election, rather than to inject itself into an impending
election process. I think it was and is designed to put me into a Hobson’s choice:
discontinue protected speech, or lose the benefit of immediately ceasing activities for
a reduced penalty later. In light of this correspondence, I am considering whether it is
appropriate to pull my signage, which denotes that I am “conservative,” all over the
6th Supreme Court District, which I suspect was the desired result.
13. I subjectively (and I would say objectively) view the September 27, 2022 letter in
question as a credible threat of impending enforcement.
Pursuant to 28 U.S.C. §1746, I declare under penalties of perjury under the laws of the United
States of America that the foregoing Declaration is true and correct to the best of my knowledge
and belief and that such facts are made based on my personal knowledge.
Executed on October 8, 2022
~Robert A. Winter,
- Jr. -
4
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- Page ID#: 182
STEPHEN D. W OLNITZEK, CFLL\lR J. DAVID B OSWELL
COVINGTON P ADUCAH
COURT OF APPEALS J UDGE JUDICIAL CONDUCT COMMIS SION CornT OF APPEALS J UDGE
J ANET L. STUMBO LAUR.--\:-.!CE B. V ANME'rER
P.O. Box 4266
PRESTONSBURG LEXINGTON
F RAJ\:KFORT, KENTUCKY 40604-4266
CIRCUIT J UDGE EDDY COLEMAN PHONE 502-564-1231 FAX 502-564-1233 CIRCUIT JUDGE JEFJ-'REY M. WALSO:--1
PIKEVILLE WINCHESTER
DISTRICT JUDGE DAVID P . Bowu:s DTS'l'JUCT JUDGE SUSAN M. JOI-INSON
LOUISVILLE PAINTSVILLE
D IANE E . LOGSDON
ELIZABETHTOWN
JOYCE KING J ENNINGS EXECUTIVE SECRETARY

LOUISV1LT,E Ms. J IMMY S HAFFER
June 2, 2014
Mr. Robert Winter

419 Larkspur Court
Edgewood, KY 41017
RE: JCC Case Numbers 2014-069, 2014-074 and 2014-075
Dear Mr. Winter:
This is to advise that three complaints have been filed against you with the Judicial Conduct
Commission relative to your campaign for Circuit Court Judge in Kenton County. The
complaints allege that you were campaigning as a member of a political organization in violation
of Canon 5(A)(l)(a) by not only identifying yourself as a Republican but also by identifying
your opponents as Democrats. The complaints also allege that your campaign materials gave the
false impression that the election was a partisan one in violation of Canon 5B(l)(c).
Following consideration and discussion of the complaint, the Commission has requested that you
file a written response to the allegations. Please submit your response on or before June 23,
2014, by filing same at the address listed above. You may contact me if you have any questions
concerning this request. Thank you.
Please note that Mr. Wolnitzek recused from any consideration of this matter.
~0-¾ tt-
Ms. Jimmy Shaffer
Executive Secretary
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R. MICHAEL SULLIVAN, CHAIR CARROLL M. "TRIP" REDFORD, Ill
OWENSBORO LEXINGTON
JUDGE JEFF 8. TAYLOR JUDGE GLENN E. ACREE
OWENSBORO LEXINGTON
JumcIAL CoNDUCT CoMMISSION
JUDGE EDDY COLEMAN JUDGE MITCH PERRY
PIKEVILLE
P.O. Box 4266
LoUISVILLE
FRANKFORT, KENTUCKY 40604-4266
JUDGE KAREN THOMAS PHONE 502-564-1231 FAX 502-564-1233 JUDGE ELIZABETH A. CHANDLER
COVINGTON CARROLLTON
DR. JOE E. ELLIS
BENTON
JANET LIVELY MCCAULEY EXECUTIVE SECRETARY

LOUISVILLE Ms. JIMMY SHAFFER
September 27, 2022
Robert Winter, Jr.

P.O. Box 175883
Fort Mitchell, KY 41017-5883
RE: JCC Case Number 2022-249
Dear Mr. Winter
This is to advise that a complaint has been filed against you with the Judicial Conduct
Commission relative to your campaign for judge of the Kentucky Court of Appeals.
The complaint alleges you have engaged in political or campaign activity inconsistent with the
independence, integrity, or impartiality of the judiciary, including seeking, accepting, and using
endorsements from the Republican Party and by making pledges, promises or commitments in
connection with cases, controversies, or issues likely to come before the Court - specifically the
issue of abortion.
Following consideration and discussion of the complaint, the Commission requests that you file a
written response to the allegations. Please submit your response on or before October 24, 2022,
· by mailing it to the address on this letter.
The Commission has further directed me to invite you to participate in an informal conference
during which the Commission would like to discuss the allegations in greater detail. The
Commission's meeting is scheduled for October 28, 2022, at 4:00 p.m., EST, in the Keeneland
conference room at the Embassy Suites Hotel in Lexington, Kentucky. The hotel is located on
Newtown Pike immediately off U.S. I-75/I-64, exit 115. The Keeneland room can be accessed
from both the front door of the hotel and the door on the left of the building. If you enter the
building from the left side door, the Keeneland room will be to your right before you reach the
main desk to the hotel. If you accept this invitation, please arrive on time so the conference may
begin at its scheduled time. Please wait outside the room where the Chairperson will greet you
prior to the start of the conference.
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The Commission wiUhave reviewed your response prior to the conference, but will typically,
ask an attendee to begin with any additional information they would like to add to their response.
The remainder of the time is reserved for discussion between the attendee and the Commission
members.
Please advise whether you accept this invitation and plan to attend this conference. If you plan
to attend and have counsel represent you, please have counsel filea written entry of appearance_
prior to the conference.
Please contact my office if you have any questions concerning this matter.
Sincerel~
QJc~
. Jimmy Shaffer
Executive Secretary uu
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1 of 3101
- Page ID#: 185

Plaintiffs :
v. :
Defendants :
PLAINTIFFS’ EMERGENCY MOTION FOR AN INJUNCTION PENDING APPEAL

Plaintiffs, through Counsel, move this Court for an emergency order for an injunction
pending appeal under FRCP 62(d). The failure to enter a ruling on a request for injunctive relief
is appealable. 28 U.S.C. § 1291(a)(1) (“refusing … injunctions”); Maryville Baptist Church, Inc.
v. Beshear, 957 F.3d 610, 612 (6th Cir. 2020) (“When an order ‘has the practical effect of an
injunction,’ id., and an appeal ‘further[s] the statutory purpose of permit[ting] litigants to
effectually challenge interlocutory orders of serious, perhaps irreparable, consequence,’ Carson
v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S. Ct. 993, 67 L. Ed. 2d 59 (1981), we will review it.”);
United States v. Lynd, 301 F.2d 818 (5th Cir. 1962) (appellate review had where neither
preliminary injunctive order nor TRO granted, in the face of ongoing irreparable harm). This
Court’s minute entry order (Doc. 15), the passage of 12 days without a ruling in the middle of an
election cycle, with the specter of impending enforcement hanging over their heads sufficient to
cause them to consider self-censorship, and the impending meeting of the Judicial Conduct
Commission this Friday, October 28, 2022, in which these Plaintiffs have been “invited” to
appear, with counsel, to account for their election-related speech, collectively giving rise to an
appealable order. We anticipate that formal proceedings will follow and be instituted at that
meeting, or immediately thereafter, which will then create problematic jurisdictional issues for
1
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this Court under Younger v. Harris, 401 U.S. 37 (1971). For this Court to retain jurisdiction with
certainty, limited injunctive relief precluding the institution of formal charges over Plaintiffs’
free speech must be entered (which was part of the relief requested by Plaintiffs). At a
minimum, and to ensure that this Court retains jurisdiction over this matter, Plaintiffs
respectfully request that this Court at least enter such a limited order.
In further support of the merits of this relief, Plaintiffs rely upon their Motion for a
temporary restraining order and preliminary injunction (Doc. 3) and their Supplemental Brief
(Doc. 18), which they wholly incorporate by reference. Plaintiffs have not yet filed their notice
of appeal, but will do so on October 25, 2022, so as to allow the case to get docketed in the Sixth
Circuit that day, and give the Sixth Circuit some (albeit minimal) time to consider the Motion for
Injunction Pending Appeal they will file in that court prior to the JCC Meeting on October 28.
Respectfully Submitted,

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
/s/Thomas B. Bruns
513-312-9890
tbruns@bcvalaw.com
2
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(513) 225-8997
3
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1 of 2 - Page ID#: 188

JOSEPH FISCHER, et. al. : Case No.: 2:22-cv-121-WOB
Plaintiffs :
v. :
Defendants :
ORDER GRANTING INJUNCTION PENDING APPEAL

Upon the Motion of the Plaintiffs, and based on the factual allegations in Plaintiffs’
Verified Complaint and the law cited in Plaintiffs’ Motion for Temporary Restraining
Order/Preliminary Injunction Motion, as well as their Motion for Injunction Pending Appeal,
Defendants, Hon. Karen Thomas, Hon. R. Michael Sulliver, Hon. Eddy Coleman, Hon. Jeff S.
Taylor, Hon. Joe Ellis, Hon. Janet Lively McCauley, and Hon. Jimmy Shaffer, along with their
officers, agents, servants, employees, and attorneys, as well as persons acting in active concert
with them pursuant to FRCP 65(d)(2)(c) (collectively “Defendants”), are each, pursuant to FRCP
65 hereby ENJOINED from taking any enforcement action against Plaintiffs, as follows:
1. Defendants shall not prevent Plaintiffs, or take any action against them during the
pendency of the current 2022 general election, or take any action against Plaintiffs
following that election, on the basis of: (i) Plaintiffs’ truthful statements that Mr. Fischer
is “the conservative Republican” or Mr. Winter is “conservative” or “a Republican;” (ii)
the utilization of the Republican party’s elephant symbol or other elephant symbols, to
denote Mr. Fischer’s affiliation with that party, JE 130 notwithstanding; (iii) using and
advertising Mr. Fischer and Mr. Winter’s endorsements from Kentucky Right to Life and
Northern Kentucky Right to Life (including “Choose Life” signs by third parties); (iv)
general references to Mr. Fischer having served two decades in the Kentucky House of
Representatives; (v) continuing to indicate that Mr. Fischer and Mr. Winter are
committed to defending the rule of law and ensuring Kentucky’s judicial system
effectively serves all citizens of the Commonwealth, that they will not engage in judicial
activism, and to continue to underscore their understanding of the importance of the
separation of powers in that it is the duty and responsibility of the legislature to make the
laws, the executive to enforce the laws, and the judiciary to interpret the laws; and (vi)
Defendants shall not require Mr. Fischer or his campaign or Mr. Winter, to disavow
endorsements he or his campaign has received from (but which they neither solicited not
used in their campaigns) Republican Party executive committees.
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2. Defendants are also restrained from instituting formal proceedings against Mr. Fishcer or
Mr. Winter, under the Kentucky Code of Judicial Conduct for any campaign related
speech related to the foregoing or the allegations in the Verified Complaint.
3. No bond is required under FRCP 65(c).
4. The Court finds that Plaintiffs have established a likelihood of success on the merits,
irreparable harm from the loss of Plaintiff’s First Amendment rights, that the equities
weigh in his favor, and that the public interest is served from the entry of this Order.
IT IS SO ORDERED:
________________________

Plaintiffs :
v. :
Defendants :
NOTICE OF APPEAL
Plaintiffs Joseph Fischer, Robert A. Winter, and the Fischer for Supreme Court
Committee give notice of their appeal of this Court’s order [Doc. 20] (attached hereto), denying
their motion for a temporary restraining order and preliminary injunction, entered this 24 day of
October, 2022, to the United States Court of Appeals for the Sixth Circuit.
Respectfully Submitted,

513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
/s/Thomas B. Bruns
513-312-9890
tbruns@bcvalaw.com
(513) 225-8997

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Case: 22-5938 Document: 5 Filed: 10/24/2022 Page: 1

United States Court of Appeals

PLAINTIFFS/APPELLANTS’ EMERGENCY MOTION FOR

Plaintiffs, through Counsel, move this Court for an Injunction Pending

granting injunctive relief pending appeal concerning their First Amendment

189], which was denied [Doc. 20, PageID#190-191], satisfying Plaintiffs’

obligations under FRAP 8(a)(2)(A)(ii). This relief is emergency relief, in that

Defendants have directed the Plaintiffs to appear at their meeting, scheduled

occur shortly thereafter.

II. Factual Background

Secretary of Kentucky’s Judicial Conduct Commission (“JCC”). Id. at ¶3. They

2. Facts underlying the free speech

turned independents, appointed by Democrats, and are supported by Democrats.

nature of the judicial elections.1 (Id. ¶13).

used the Republican Elephant symbol:

Northern Kentucky Right to Life, in addition to their endorsements, are actively

particular controversy. (Id. ¶20). In fact, when an individual questioned Mr.

addressed questions about particular cases or parties):

made general references to his experience in the Kentucky House of

3. Facts underlying the Defendants threats directed to the Plaintiffs

“following consideration and discussion” of the complaints a response was

determined that “there is a basis for investigation of a matter” within the

jurisdiction of the JCC. Id.

Winter’s counsel sent correspondence to the Kentucky Judicial Conduct

The District Court held a telephonic hearing on October 7, 2022 to the

motion. (Doc. 15, PageID#131). We have ordered, on a rushed basis, the

supplemental memoranda on the issue of standing. (Doc. 15, PageID#131).

issue of standing. (Dec. Shaffer, Doc. 17-1, PageID#158-161). In it, she

recounted the process of complaint submission, confirmed that some complaints

the speech at issue in her declaration. Id.

correspondence he received in 2014 to the 2022 correspondence, demonstrating

Mr. Winter testified that Defendants accept as mitigating prompt

discontinuation of violations upon notification by the JCC. Id. at ¶3. He outlined

JCC enforcement brought for similar allegations of violations. Id. at ¶4. He

I do not view it as an option but instead a mandatory requirement to submit a

considering “whether it is appropriate to pull my signage.” Id. at ¶12. Mr. Winter

Winter, Doc. 18-1, PageID#172-177].

appealed. [Doc. 21, PageID#192-195].

III. Law and Argument

When deciding whether to issue a temporary restraining order or preliminary

B. Plaintiffs established standing

and chill speech in the middle of an election campaign, while simultaneously

Younger, 401 U.S. 37.

Mr. Fischer and Mr. Winter have standing

“[t]he question is whether [Plaintiffs] face[] a ‘credible threat of enforcement’ for

cause: the rule in question is designed to be vaguer. But Defendants must

definition of “basis,” it is that there is “underlying support or foundation for an

idea, argument, or process.” Meanwhile, “[p]robable cause has been defined as

Applying that definition, there is no material difference between “probable cause,”

Even without a probable cause finding, standing exists. As in Driehaus, the

164. Administrative enforcement gives rise to pre-enforcement review. Id. at 165.

In Steffel, the Supreme Court made clear that even a warning by an

enforcement agency would be sufficient to demonstrate a credible threat of

enforcement. 415 U. S. 452, 459. That demonstration of standing is bolstered

As in Platt v. Board of Commissioners on Grievances and Discipline, 769

avoid violating the Code, which amounts to a “credible fear of enforcement.”

refused to disavow the enforcement … further adding credibility” to Plaintiffs’