Posted on 10/02/2004 4:03:14 AM PDT by MikeJ75
LOUISVILLE, Ky. - A conservative group has filed a federal lawsuit seeking to throw out a Kentucky rule that bars judges and challengers from committing themselves on topics that may come before them.
The Family Foundation of Kentucky, which opposes gay marriage and abortion rights, says the judicial canon infringes on the free-speech rights of citizen groups to survey judges and inform the public.
The lawsuit was filed Sept. 23 in U.S. District Court. It says that most of the 28 judicial candidates on the ballot statewide this year who responded to a survey sent out by the Family Foundation declined to fill it out, citing fear of violating the rule.
"Judicial candidates are unable to make their views known so that the electorate may intelligently evaluate the candidate's personal qualities and positions," the Family Foundation argued in its complaint.
The Lexington-based Family Foundation was unable to persuade a judge or candidate in Kentucky to join the suit as a plaintiff, said foundation director Kent Ostrander.
Louisville lawyer Richard Porter, who is running for the circuit bench in Jefferson County, understands the group's position.
"The public has a right to know where judges are coming from," Porter said. "The Kentucky bar tries to scare you into keeping your opinions to yourself."
Authorities on judicial ethics, however, said that if Family Foundation prevails, judges could promise in advance how they would decide cases, destroying the impartiality of the courts.
"It would be a disaster for the due process of law," said Northwestern law professor Steven Lubet, co-author of the book "Judicial Conduct and Ethics: A Treatise on the Law of Judging."
The Kentucky Code of Judicial Conduct says judicial candidates shall not make pledges or promises other than to perform their duties impartially, and that they shall not make statements "that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."
Jefferson Circuit Judge McKay Chauvin, who is seeking re-election in a three-way race against Porter and District Judge Kathleen Voor Montano, said it is frustrating not being able to respond to some questions while campaigning. But he said he favors the canon barring judges from committing themselves.
"Judges would run on pro-death penalty slates and anti-death penalty slates, pro-abortion slates and anti-abortion slates and the traditional role of the judge as a detached, neutral magistrate would be eviscerated," he said.
The Family Foundation is seeking an emergency ruling from the court so it can mail out its survey again before the Nov. 2 election if the rule is invalidated. A hearing has been set for Oct. 15 on the complaint, which names the Judicial Conduct Commission and the Kentucky Bar Association as defendants.
Judicial candidates in Kentucky have had the right to "announce" their opinions since 1991, when the state Supreme Court reversed a sanction against one of its own members, Dan Jack Combs, who had been disciplined for speaking out on a legal issue during his campaign.
The foundation's survey said it was seeking candidates' "current views on legal issues" rather than any "pledge, promise or commitment."
The survey asks eight questions, including whether the candidates think the Kentucky Constitution requires that same-sex couples be allowed to enter civil unions or requires the removal of the Ten Commandments from public buildings if they are displayed with other historically significant documents.
The survey also asked the candidates to name which U.S. Supreme Court justice most closely reflects their judicial philosophy, to rate themselves as "strict constructionists" on a 1-10 scale; and to check off which of 52 organizations they have belonged to or supported in the past 10 years.
The groups range from such liberal groups as the American Civil Liberties Union, Gay & Lesbian Advocates and Defenders, Green Peace and Handgun Control to the more conservative Americans United for Life, Focus on the Family and the National Rifle Association.
The problem is that the judge is not impartial; that is why many attorneys 'judge-shop' whenever possible.
The canon only tries to mask their partiality, preventing the voter from knowing their biases beforehand.
It is not a problem in the case of a judge running for reelection, or for a 'promotion'; their record is open, though not before perhaps having done four or more years of damage to the public they purportedly "serve".
The problem is in races where there is an unknown challenger; or, worse, an open seat, and two or more candidates with NO record on the Bench are running.
The canon also assumes that if one makes their positions and biases known, that that is somehow a "promise" not to be impartial in any particular case that comes before them on that issue. That seems to be a rather curious position that their biases exist only if they are made public, and don't exist if they are not spoken aloud.
I have no problem with judicial races being nonpartisan, but the public should not have to decide in a vacuum.
Everybody who has posted has made a lot of sense.
Is this issue similar to a judge who is being appointed to the federal bench (as opposed to being elected in Kentucky) and who is interviewed by the Senate Judiciary Committee?
Those judges usually refuse to answer questions about how they would rule on particular issues. According to the article, the prohibition in the Kentucky rules is that judges may not make statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."
I think the judges on the U.S. Supreme Court, if it should ever hear a case involving the Kentucky rules, would probably support those rules, since every one of the current Justices on the U.S. Supreme Court probably declined to answer questions about particular issues during the confirmation process.
The only problem with the 'appointment to Federal Bench' anaolgy is that those candidates come before the Senate with a long track record, which is then minutely examined.
It is correct that they normally do not answer questions about how they would rule on specific issues; but there is always considerable probing on the edges, to try and get a glimpse of the core.
On the local level, the rule brings it down to only being able to argue 'I'm more honest and impartial than my opponent.'
One does not have to, nor should they, give specifics to hypotheticals; but I don't see any problem with them stating their their broad general views and theories that they bring to the bench. If I'm hiring, I want a relevent resume.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.