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Wednesday, May 23, 2007

Courts - "Door opened for judicial candidates to speak out"

Torsten Ove of the Pittsburgh Post-Gazette has a long article yesterday on the impact of the recent federal district court decision in Pennsylvania enjoining that State's rules that forbid judicial candidates from making “pledges or promises” of conduct in office or statements that “commit or appear to commit” candidates on issues likely to come before them.

The article is too long to quote in full but deserves close reading, particularly because a similar federal court decision was issued here in Indiana last November. See this earlier ILB entry from May 14th on the Pennsylvania ruling, and this Nov. 14, 2006 entry on the Indiana ruling.

A few quotes from yesterday's Post-Gazette article:

As early as 1924, the American Bar Association developed a code of conduct providing that a candidate for judge "should not announce in advance his conclusions of law on disputed issues of fact to secure class support."

The ABA wanted state judges to be selected on merit, not politics.

For generations since, candidates have cited various incarnations of that rule, or similar "canons" in their states, in declining to talk about issues that matter to the public.

Although the rules have generally kept judicial election campaigns from degenerating into mud-slinging contests, they often mean the electorate chooses judges without knowing where the candidates stand.

Now Pennsylvania's rule appears to be history. * * *

Although the injunction by U.S. District Judge David Katz is temporary, it said that the plaintiffs are likely to succeed on the merits of the case. The judge cited federal decisions in Indiana, Kansas, Alaska, North Dakota and Kentucky that threw out judicial speech rules identical to Pennsylvania's.

Pennsylvania Family Institute and another reform group, Democracy Rising Pennsylvania, which filed its own federal lawsuit in Harrisburg against the conduct board, are already preparing questionnaires in anticipation that the same will happen here. * * *

Most sitting judges and candidates won't comment on the Philadelphia decision, nor will state officials, because the litigation is pending.

But one Pennsylvania judge who did speak out said he fears judicial elections will now "go negative," which has happened in other states since a landmark 2002 U.S. Supreme Court case involving the Minnesota courts.

"That Minnesota case was a disaster as far as I'm concerned," said state Supreme Court Justice Ronald D. Castille. "Once that came down, you could kind of see the handwriting on the wall."

In the 2002 case, Republican Party of Minnesota v. White, the high court overturned a Minnesota rule prohibiting judicial candidates from announcing their "views on disputed legal or political issues." * * *

"We're going to see things like what has happened in Alabama -- taking the low road [during campaigns]," he said.

It could also lead to more recusal motions to remove judges from cases and open the door for lawyers to challenge court decisions based on what a candidate for judge said on some issue before an election.

Justice Castille said he favors the current practice, in which a candidate cites his experience but not his views. That often was enough to give voters an idea of how he might rule.

For example, when he was a candidate and was asked about his position on the death penalty, he said he couldn't declare himself for or against it. But he could cite his experience as a district attorney who had pursued the death penalty in various cases.

Advocates for reform, however, say candidates should have the right to free speech like anyone else. In addition, they say many judicial candidates appear to use the canon as a default position to essentially say "no comment."

"If you don't say anything, it's easier on you," said Mr. Ledewitz, a frequent critic of the Supreme Court. "Once you start talking, it's a mess."

In the recent state Supreme Court race, Superior Court Judges Debra Todd and Maureen Lally-Green cited the rule in declining to state their views on such issues as abortion or gun control.

Posted by Marcia Oddi on May 23, 2007 07:23 AM
Posted to Courts in general