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Thursday, July 20, 2006

Court - Kansas federal district court bars enforcement of rules limiting judicial speech

The AP is reporting, via the Kansas City Star:

TOPEKA, Kan. - Rules barring Kansas' judicial candidates from personally soliciting contributions and limiting what they can say during campaigns can't be enforced because of questions about the rules' constitutionality, a federal judge has ruled.

U.S. District Judge Julie Robinson is prohibiting the state's Commission on Judicial Qualifications from moving against judges or judicial candidates who violate provisions in Kansas' code of judicial conduct. Her order, issued Wednesday, will remain in effect until she considers a lawsuit filed by Kansas Judicial Watch, a political action committee based in Wichita.

The PAC sued the commission after it advised a judicial candidate in April that he could not answer a questionnaire from the group without running afoul of the code.

Among other things, the questionnaire asked whether a candidate thought the Kansas Supreme Court had overstepped its authority in ordering legislators to increase spending on public schools, whether same-sex marriages should be prohibited and whether fetuses have a right to life that "should be respected at every stage of their biological development."

Kansas Judicial Watch argued that the code contained provisions that violated judicial candidates' free speech rights and prevented voters from obtaining information about them. * * *

James Bopp Jr., a Terre Haute, Ind., attorney representing Kansas Judicial Watch, had predicted the provisions in the Kansas code would not withstand scrutiny because of a 2002 U.S. Supreme Court ruling in a Minnesota case - which Robinson cited. * * *

Ron Keefover, a spokesman for Kansas' court system, said attorneys are reviewing the ruling and deciding whether to appeal it to the 10th U.S. Circuit Court of Appeals in Denver. * * *

Supreme Court justices and Court of Appeals judges are appointed by the governor and stand for retention. The same is true for 125 district judges in 52 of the state's 105 counties.

But 115 district judges in 53 counties are elected.

"Because the state has voluntarily allowed for this method of judicial selection, the candidates should be allowed to educate the voters about themselves without fear of discipline," Robinson wrote in her order.

The 48-page decision, Kansas Judicial Watch, et. al., v. Mikel L. Stout, et. al., is available here. Note that the judge takes care to point out at p. 48:
The Court takes this opportunity to point out that although the preliminary injunction in this case will allow judicial candidates the opportunity to make certain statements in the context of their campaigns, they are by no means compelled to do so. “[T]he practice of voluntarily demurring does not establish the legitimacy of legal compulsion to demur.” Further, the recusal Canon operates as a check against any statements made that could later render a judge impartial in a particular case or controversy.
(Thanks to How Appealing for the links.)

The ILB last reported on the status of a similar suit in the ND Indiana in an entry from July 12, 2006.

Posted by Marcia Oddi on July 20, 2006 07:39 PM
Posted to Courts in general