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Tuesday, June 13, 2006

Courts - Kentucky judicial candidate rules challenged

The Louisville Courier Journal reports today, in a story by Andrew Wolfson:

A candidate for the Kentucky Supreme Court wants a federal court to throw out the state's judicial election rules because he says they prohibit him from offering his views on gay marriage, when life begins and other hot-button topics.

The candidate, Marcus Carey, whose Web site says he promotes "conservative values," also wants to strike down rules that bar judicial candidates from disclosing their party affiliation and from announcing endorsements by elected officials. Carey is the former chairman of the 4th Congressional District Republican Party.

"Voters want to know who we are and what we stand for before we are elected to the bench," Carey said. * * *

If Carey's suit is successful, it would end nonpartisan judicial elections in Kentucky, said Steve Wolnitzek, chairman of the Judicial Conduct Commission, who is one of the defendants. All but two of Kentucky 265 judgeships are up for election this year.

Wolnitzek said Carey's lawsuit -- and others like it -- raise legitimate questions about judicial candidates' free-speech rights. But Wolnitzek said he fears that that if Carey prevails there could be so much partisanship and mudslinging that "when you are finished, nobody would have any respect for the judges who are elected." * * *

Carey's lawsuit was filed Friday by Lexington lawyer Ben Cowgill and attorney James Bopp of Terre Haute, Ind., the same lawyer who last year successfully attacked Kentucky's judicial speech rules on behalf of the Family Foundation of Kentucky.

As a result of that suit, the Kentucky Supreme Court had to drop a rule that barred judicial candidates from making statements that "commit or appear to commit" them to positions on cases they likely would hear.

It was replaced by a new canon that says judicial candidates must not intentionally or recklessly make a statement that could be perceived by a reasonable person as committing them to rule a certain way on an issue they could hear.

But Carey contends in his lawsuit that the new rule is so vague that candidates are "still unable to make their views known so that the electorate may intelligently evaluate their … positions on vital public issues … so voters can educate themselves and participate fully in democracy." * * *

The suit, which also names Kentucky Bar Association leaders as defendants, asks for an injunction blocking the new rule, as well as one that requires that a judge disqualify himself in a proceeding when he has "expressed an opinion concerning the merits of the proceeding."

Carey also says rules barring judicial candidates from making endorsements, identifying their party affiliation and directly soliciting campaign contributions violate the First Amendment.

Restrictions on judicial candidates have come under attack in dozens of states since the U.S. Supreme Court decided in a 2002 Minnesota case that judicial candidates have a free-speech right to announce their views as long as they don't pledge to vote a certain way on a particular case. Bopp also won that case.

An Indiana case, Right to Life v. Shepard, is still pending. As the ILB reported on Nov. 9, 2005:
The defendants' motion to dismiss on standing, ripeness and abstention is pending before Judge Sharp in the ND Indiana. In answer to my question, George T. Patton, Bose McKinney & Evans LLP, representing defendants (Randall T. Shepard, et al.), along with the Attorney General, reports that "Because affidavits were attached to our motion, Judge Sharp has converted our dismissal into summary judgment and ordered all parties to file any arguments and evidence relevant to that by the end of the year with replies in April of next year."
For a list of related ILB entries, check here.

For much more on the Kentucky suit (including links to filings), see this entry from the Kentucky Law Blog.

Posted by Marcia Oddi on June 13, 2006 07:26 AM
Posted to Courts in general