From the Lexington Daily Herald

Posted on Wed, Sep. 29, 2004

Group sues for judges' free speech
Canon bars comment on personal belief
By Beth Musgrave
HERALD-LEADER STAFF WRITER

A conservative Lexington foundation wants a federal judge to allow state judicial candidates to state their views on issues such as gay marriage and religious freedom.
The Family Trust Foundation of Kentucky filed a lawsuit last week in U.S. District Court in London arguing that the state's judicial-ethics laws violate a judge's right to free speech and association.
The organization argues that Family Trust's free speech also has been violated because it cannot inform the public through its surveys how a judge stands on certain issues.
The law states that Kentucky judges are not allowed to make comments that commit or "appear to commit candidates with respect to cases, controversies or issues that are likely to become before the court."
Named in the lawsuit are members of the Kentucky Judicial Conduct Commission and members of the Kentucky Bar Association.
Family Trust sent a survey to judicial candidates this summer asking about their beliefs on issues including cloning, the display of the Ten Commandments in public buildings, and pornography.
Many judicial candidates returned the Family Trust's survey unanswered, adding that they could not respond because of the state's judicial canon prohibiting the candidates from making statements on specific issues.
Family Trust is asking a federal judge to declare the canon and the enforcement policies regarding it unconstitutional.
Family Trust asked a federal judge for an emergency injunction so it can get its surveys to the public before the Nov. 2 election.
"The current powers that be in Kentucky place restrictions on what a judicial candidate can say, which, in other words, limits their free speech," said Kent Ostrander, the executive director of the foundation. "And that, in turn, limits the knowledge that the voters need to make a wise decision."
Yesterday, U.S. District Court Judge Danny Reeves set Oct. 15 as a tentative date for a hearing on the foundation's motion for injunctive relief.
Linda Gosnell, chief counsel for the Kentucky Bar Association and a defendant in the lawsuit, said the bar thinks the state's canon concerning judicial campaigns follows case law.
"Judges should be impartial," Gosnell said. "They should not be pre-committing themselves to rule one way."
The U.S. Supreme Court ruled in 2002 that judges could make "announcement" statements about how they feel about certain issues.
The Supreme Court did not, however, rule on prohibitions on "commitment statements" such as the one Kentucky has.
Will T. Scott, who is running against incumbent Janet Stumbo for the state Supreme Court, said he thinks the majority of people like the fact that judicial candidates don't take positions or make promises.
A representative of Stumbo's campaign said yesterday he was not familiar with the survey.
Scott said he returned the Family Trust survey because he thought his answers might violate judicial ethics laws.
But Scott also said he understands why people would want to know more about a judicial candidate beyond statements about being fair and impartial.
"People will ask me questions, and I have to tell them I can't answer that because of Canon 5," Scott said.
Judicial watchdog groups argue that a judge's First Amendment right to free speech should take a back seat to the public's right to a fair and impartial court.
Deborah Goldberg, director of the democracy program at the Breenan Center for Justice at New York University Law School, said candidates who make statements on particular issues may not be fit to wear a robe.
"When you are a judge, you are supposed to be guided by the law and divorced from your personal feelings," Goldberg said.
Cynthia Gray, of the American Judicature Society's Center for Judicial Ethics, said the same.
"When you start asking them questions that make them commit or appear to commit before they go into court, that's not fair," Gray said.