Posted on 02/22/2002 11:59:35 AM PST by ThJ1800
High court reviews limits on judges' election speechCase could reshape judicial campaigns; most states tell candidates not to announce their views
By Scott Shepard
Austin American-Statesman, Washington Bureau
Friday, February 22, 2002WASHINGTON -- The Supreme Court is reviewing whether a state can limit what judicial candidates may say while running for office, an issue that could change the way judges are elected throughout the country.
"This is big, even though voter interest is probably infinitesimal," said Allison Zieve, a lawyer with Public Citizen Litigation who filed a "friend of the court" brief in the case.
The basic issue in the case of Republican Party of Minnesota, et al. v. Kelly is one of First Amendment rights -- whether restrictions on what candidates for judge in Minnesota can say or do during campaigns violate their right to free speech.
Forty states use some form of election to pick their judges -- unlike U.S. Supreme Court judges and other federal judges, who are appointed by the president and confirmed by the Senate.
Most states follow American Bar Association guidelines dating back to 1924 that caution a judicial candidate to "not announce in advance his conclusions of law on disputed issues."
Texas, which elects almost all of its judges, from the highest courts to justices of the peace, also has rules limiting what judicial candidates can say about cases or issues that might come before them if they are elected.
In January 2001, the State Commission on Judicial Conduct gave one of the state's highest-ranking jurists, Judge Tom Price of the Court of Criminal Appeals, a public warning for several things he said in connection with his GOP primary campaign in 2000. The commission said Price had given voters the "the unmistakable impression" that he "would be willing to abdicate his role as a fair, detached and impartial jurist in order to fulfill his promise to be an advocate for crime victims."
The case now before the U.S. Supreme Court began in 1996 with the candidacy of Gregory Wersal for a seat on the Minnesota Supreme Court. He ran as a self-described "strict constructionist" opposed to the court's rulings on abortion, welfare and crime, appearing at state Republican Party gatherings and courting the GOP endorsement.
Wersal withdrew as a candidate amid complaints that he had violated a rule, issued by the state Supreme Court, prohibiting judicial candidates from announcing their views on "disputed legal or political issues."
He ran again in 1998 and lost in a primary, then again in 2000, losing in the general election while suing the state of Minnesota on the grounds that the rule violated the First Amendment guarantee of free speech.
In his brief to the Supreme Court, Wersal's attorney, James Bopp, argued that the case is "about the ability of candidates to effectively communicate information to voters that the voters need in order to vote in an informed manner."
Attorneys representing the state of Minnesota contend, however, that judicial elections differ from other political contests. "Litigants have a right and an expectation that a judge will decide cases based upon the law and facts of the case rather than based upon statements made during a campaign," their brief asserts.
A federal court in Minnesota sided with the state in 1999. And a three-judge appeals panel subsequently upheld the ruling, on a 2-1 vote.
The prohibitions on judicial candidates in Minnesota are narrowly tailored and serve a compelling interest "to guarantee the independence of the (state) judiciary" from "political, economic and social pressure," held the 8th U.S. Circuit Court of Appeals in St. Louis.
The Republican Party of Minnesota, in appealing that ruling to the Supreme Court, argues that "because the First Amendment has its fullest and most important application to campaigns for elective office, these (prohibitions on campaign speech) violate the First Amendment."
Oral arguments in the appeal are scheduled for March 26, with the justices expected to hand down their ruling in late spring or early summer.
© Copyright Cox Interactive Media, Inc.2001
How judges are chosen in TexasSupreme Court
Elective system: partisan election
Initial term of office: six years
Method of retention: re-election for additional six-year termsCourt of Criminal Appeals
Elective system: partisan election
Initial term of office: six years
Method of retention: re-election for additional six-year termsCourt of Appeals
Elective system: partisan election
Initial term of office: six years
Method of retention: re-election for additional six-year termsDistrict Court
Elective system: partisan election
Initial term of office: four years
Method of retention: re-election for additional four-year terms
The prohibitions on judicial candidates in Minnesota are narrowly tailored and serve a compelling interest "to guarantee the independence of the (state) judiciary" from "political, economic and social pressure," held the 8th U.S. Circuit Court of Appeals in St. Louis.Social pressure. As in, "BUT MOTHER! ALL OF THE OTHER JUDGES ARE DOING IT!
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