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Tuesday, January 24, 2006

Courts - Supreme Court Ruling Could Spur Partisan Judicial Campaigns

The LA Times is reporting today, in a story by David Savage headed "Supreme Court Ruling Could Spur Partisan Judicial Campaigns," that:

The Supreme Court took another step Monday toward transforming state elections for judges from nonpartisan, low-key affairs into big-money contests.

The justices let stand a lower court ruling in a Minnesota case that voids rules forbidding judicial candidates from personally soliciting money or from identifying themselves as Republicans or Democrats.

The rules were voided using the rationale that they deprive candidates of free speech. About 30 states with similar provisions could be affected if the ruling spreads beyond the U.S. 8th Circuit Court of Appeals.

Monday's decision "could open the floodgates of money into America's courtrooms," said the Washington-based group Justice at Stake. It will "ratchet up special-interest pressure on courts that are supposed to be fair and impartial."

Minnesota sought to preserve the rules against such spending, contending they are "critical to ensuring that the state's judiciary is — and is seen to be — above party politics and the corrupting influences of money."

Savage cites Rick Hasen of Election Law Blog as saying that this decision:
which left in place a ruling by the 8th Circuit, is not binding on the 9th Circuit. California's Supreme Court justices are appointed by the governor for set terms, but must run to retain their seats. Judges of the state's superior courts are elected in nonpartisan races. Some legal experts said Monday's action by the high court suggested judges and judicial candidates were now free to run partisan campaigns. * * *

Hasen said there was nothing in the Supreme Court decision that would require California to elect judges through a partisan election.

But he said it was possible that a candidate might run a partisan campaign with the hope that the existing state law eventually would be overturned.

The high court triggered the move toward more expensive and partisan state judicial races four years ago, in Minnesota. It struck down the state's code of conduct that barred judges and judicial candidates from announcing their views on issues that might come before the courts.

In a 5-4 ruling, the justices said the 1st Amendment's guarantee of freedom of speech gave judges a right to speak out on controversies, even if their pronouncements might undercut their appearance of impartiality.

Since then, a series of other rules that restrict judicial candidates have been challenged in the lower courts, and nearly all of them have been struck down on free-speech grounds.

"This means we are moving toward no-holds-barred elections for judges. It also means the public will view judges like other pols and probably have less respect for courts," said Schotland.

[Indiana attorney] James Bopp Jr., who successfully challenged the rules on behalf of the Republican Party of Minnesota, agreed the high court's action would probably have a wide impact.

"It's becoming clear the 1st Amendment has a broad application to judicial elections and that the original foundation for the regulation of judicial elections has been pretty well destroyed," he said.

Some background on the case:
[N]early all the states enforce judicial codes of conduct that limit the partisan political activity of sitting judges. Minnesota forbids its judges and judicial candidates from speaking at a political party's meeting or from seeking a party's endorsement.

In August, the full U.S. 8th Circuit Court of Appeals declared unconstitutional Minnesota's rules forbidding judges from engaging in partisan activity and from personally seeking campaign funds.

The state appealed to the high court.

Minnesota was supported by the American Bar Assn., the Conference of (state) Chief Justices and 39 of the nation's largest corporations. They included Dow Chemical, General Electric, General Motors, Johnson & Johnson, Time Warner and Wal-Mart.

These companies voiced concern at "the prospect of increasingly costly, divisive and partisan judicial elections." Its officials also said they "often find themselves between a rock and a hard place" when a judge asks for campaign money. Giving "to even the most promising candidate has the potential to create an appearance of seeking favor in any future litigation," the company lawyers said. "That potential is only compounded when the judge himself makes the request."

Unswayed, the Supreme Court, without comment, turned down the appeal Monday in the case of Dimick vs. Republican Party of Minnesota, leaving the lower court's decision intact.

Indiana has a case pending, Right to Life v. Shepard, before Judge Sharp in the the ND Indiana. See this ILB entry from Nov. 9, 2005 for more. See also this entry from Jan. 4, 2006.

Here is a quote from Prof. Rick Hasen:

UPDATE: With the campaign finance ruling today [Wis. Right to Life - see ILB entry here], it is easy to lose sight of the significance of this cert. denial. The earlier White case by the Supreme Court struck down Minnesota's "announce clause," which was a rarely used judicial campaign speech rule that the ABA itself had abandoned. In the current case, the Eighth Circuit struck down a rule limiting the partisan political activities of judges as well as a ban on certain direct solicitation of campaign contributions by judges. Along the way, the Eighth Circuit called into question all judicial campaign codes, suggesting that when such rules are enacted by state high courts rather than state legislatures, the courts have acted beyond their authority.

Already before this cert. denial, federal courts have began striking down a host of judicial campaign rules (while state courts have tended to uphold them). While the cert. denial is not a ruling on the merits, it is likely to accelerate the trend in the federal courts. Judicial elections are going to look even more like non-judicial elections as time goes on.

Posted by Marcia Oddi on January 24, 2006 08:59 AM
Posted to Indiana Courts