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Wednesday, February 14, 2007

Courts - More on: Wisconsin Right to Life sues re questionaire to judges

Updating this Jan. 4, 2007 ILB entry, which began "A law suit similar to that filed in Indiana and several other states has now been filed in Wisconsin," the Pioneer Press reports today:

Wisconsin rules that prohibit judicial candidates from making comments that seem like promises to rule in specific ways will remain in place during a key race for the state Supreme Court, a federal judge ruled Tuesday.

U.S. District Judge John Shabaz denied an anti-abortion group's request for a temporary injunction that would have suspended the rules during the spring elections.

Shabaz said the rules should stay intact because the lawsuit by Wisconsin Right to Life and eight state residents was likely to fail. He is expected to rule on the merits of the case later this year.

The lawsuit is challenging the constitutionality of two rules. One forbids judicial candidates from making public statements that could be seen as committing themselves to a particular ruling. The other requires judges to recuse themselves in cases on which they have taken sides publicly.

The anti-abortion group says the rules have prevented candidates from answering a questionnaire soliciting their views on abortion rulings and other topics. It says the rules violate judicial candidates' free speech rights and deprive citizens of information they need to vote.

But Shabaz said the group failed to show that candidates would answer the questionnaire if the rules were not in place. He also said the state "has a compelling interest in ensuring that its judges be impartial to the parties before it."

James Bopp Jr., an Indiana lawyer representing the anti-abortion group, said the rules have been interpreted too broadly, prohibiting candidates from discussing their views on issues like last fall's statewide referendum on the death penalty.

Bopp said the group was not looking for a promise to rule against abortion rights in specific cases but only for an understanding of their views on the issue. He said he would convince Shabaz to change his mind when he rules on the merits.

"We've done the surveys, and people have refused to answer because of the judicial canons," he said. "The rules are understood by judicial candidates to prohibit announcing their views."

Lawyers representing the state argue the rules are more narrow and only prevent candidates from telegraphing how they will rule on specific controversies. The goal is to maintain the impartiality of judges, they say. Shabaz appeared to buy that argument in his ruling from the bench Tuesday.

The ruling comes one week before Washington County Judge Annette Ziegler and Madison attorneys Linda Clifford and Joe Sommers square off in a primary for the opening on the high court. The two top candidates will advance to the April 3 election, which may decide the political leaning of the divided court.

Despite the rules, Wisconsin Right to Life's political action committee recently endorsed Ziegler, who is seen as the conservative in the race.

From Wisconsin Politics:
Shabaz said the state has a compelling interest in restricting the ability of judicial candidates to answer questionnaires and the like, especially to preserve the appearance of impartiality and open-mindedness. Shabaz also said the court canon is narrowly tailored so it appears to pass constitutional free speech muster.

Shabaz noted that the right of a willing listener is protected under the First Amendment, as is the right of a willing speaker. Shabaz said he recognizes Wisconsin Right to Life as that listener and their pursuit of sending out surveys questioning a candidate’s belief of the legal reasoning behind Roe v. Wade. However, Shabaz said there needs to be a willingness of a speaker, and most candidates would have the likelihood of not filling out such surveys anyway.

State of Wisconsin lawyer Thomas Balistreri argued few, if any, judicial candidates would return any surveys.

“Its pure hypothecial conjecture that they are willing speakers … in 2007,” Balistreri said.

Wisconsin Right to Life executive director Barbara Lyons said afterward that Shabaz’s argument is “circular.” Lyons said that Shabaz thinks the reason judge’s don’t answer questionnaires is due to the court rules, and now he ruled that he’s not lifting the restrictions because judges are not returning surveys.

James Bopp, Jr., attorney for Wisconsin Right to Life added that revealing personal views doesn’t impact a judge’s discretion.

“Announcing your views has nothing to do with being impartial,” Bopp said.

Shabaz also agreed with Balistreri that he hopes to "dispose of this trial by motion." Bopp did not present any new testimony during the pre-trial conference today, but also said he doubts the case will go to a jury trial.

Shabaz also set the last pretrial conference to meet May 5 and set the jury trial to begin June 1 if the case, Duwe v. Alexander, gets that far.

If the case does go to trial, it will not affect this year's state Supreme Court race, as the spring election takes place April 3.

Posted by Marcia Oddi on February 14, 2007 09:36 AM
Posted to Courts in general