Friday, June 28, 2002
U.S. Supreme Court Rules:
Limitation on Judicial Candidate Speech Violates First Amendment
From Staff and Wire Service Reports
The U.S. Supreme Court yesterday struck down limits on what some judicial candidates may tell voters, a landmark free speech ruling that could heat up court campaigns around the country.
Nearly 40 states, including California, elect some judges, and also restrict what they say or do while campaigning to promote an image of fairness and independence for courts.
The Supreme Court, in throwing out strict limits in Minnesota on a 5-4 vote, said the rules, while well-intended, impose an unconstitutional gag order.
Minnesota is one of nine states that had banned would-be judges from announcing views on “disputed legal or political issues.” Most other states keep candidates from divulging their positions on issues that might come before their court.
Canon 5 of California’s Code of Judicial Conduct says, in part, that a judge, or a judicial candidate, cannot “make statements to the electorate or the appointing authority that commit or appear to commit the candidate with respect to cases, controversies, or issues that could come before the courts.”
That portion of the code is under attack in a case now before the Commission on Judicial Performance. The CJP has charged former Sonoma Superior Court Judge Patricia Gray, who lost a bitter battle for re-election two years ago, with violating Canon 5 during the campaign.
The commission alleged that Gray violated the restriction on political statements, as well as other ethics rules, by sending out a mailer declaring that her opponent, then a deputy public defender, “Cares About the Rights of Violent Criminals” including a “cop killer” and a “child molester” in cases in front of Gray.
Gray was also accused of violating the code’s ban on comment on pending cases, since the “cop killer” and “child molester” cases were both on appeal at the time Gray of the mailing. The commission also charged that the mailer was misleading.
Gray is represented by Los Angeles attorney Mark Geragos, who could not be reached yesterday for comment but who has previously predicted that the charges would be thrown out on First Amendment grounds. His federal civil rights suit seeking to enjoin the disciplinary proceeding was thrown out on procedural grounds.
The ban on judicial comment on pending cases was the subject of a previous First Amendment attack, by Tulare Superior Court Judge Howard Broadman, who has since retired. The state Supreme Court ruled unanimously that judges do not have a constitutional right to talk about their cases outside of court, and censured Broadman for giving media interviews about two of his cases.
Justice Antonin Scalia, writing yesterday for the majority, said “there is an obvious tension” between the state’s popular elections for judges and the limit “which places most subjects of interest to the voters off limits.”
The case presented a tricky free-speech question at a time when races for state courts have become expensive and often partisan battles. This year 33 states are holding high court elections, potentially the most costly ever.
The ruling should affect the eight states that have similar provisions: Arizona, Colorado, Iowa, Maryland, Mississippi, Missouri, New Mexico and Pennsylvania. Other states may also have to change their rules.
The Minnesota restrictions had been challenged by Republicans and a three-time candidate for the state high court who contends that state rules leave voters with little useful information about candidates.
Lawyers in the case are also involved in one of the legal challenges to the nation’s new campaign finance law. That fight is also headed to the Supreme Court.
This case pitted the First Amendment guarantee of free speech against the sanctity of the judiciary. It put justices in the uneasy position of deciding if states have a compelling interest in controlling elections for court.
Justice Sandra Day O’Connor is the only court member who has been elected to a judgeship, as a superior court judge. The justices are appointed to lifetime terms.
O’Connor joined Scalia in overturning the rules, along with the other conservative members of the court: Chief Justice William H. Rehnquist, Justice Anthony M. Kennedy and Clarence Thomas.
In a dissent, Justice John Paul Stevens said the ruling will allow more politics in judicial elections.
“The judicial reputation for impartiality and open-mindedness is compromised by electioneering that emphasizes the candidate’s personal predilections rather than his qualifications for judicial office,” he wrote.
The Minnesota judicial rules were opposed by an assembly of groups, including the U.S. Chamber of Commerce, the conservative American Center for Law and Justice and the liberal American Civil Liberties Union.
They were backed by a heavyweight group of lawyers and judges, who argue that elections for judges are different than traditional political races.
Steven Lubet, a law professor at Northwestern University, said the court was “saying there is no difference between running for judge and running for alderman.”
Kennedy, in a separate opinion, said states like Minnesota may choose to have elections but they may not “censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer.”
In 2000, state Supreme Court candidates raised $45.6 million, a 61 percent increase over 1998, according to Justice at Stake, a coalition of legal and citizens’ groups that advocates reform of state judicial elections.
The money is used in part for advertisements like those for politicians. Special interest groups are behind many of the ads, and in 2000 80 percent of those were negative attack ads, according to a report by the group.
The Eighth U.S. Circuit Court of Appeals had sided with Minnesota. Thursday’s high court ruling overturned that decision.
The ruling could have a significant impact in California, two political consultants who work on judicial campaigns said.
Fred Huebscher, who advised incumbent Los Angeles Superior Court Judge Floyd Baxter and Judge-elect Lauren Weis on their campaigns earlier this year and is working for three candidates in November’s runoffs, said the ruling is likely to force candidates to take stands on controversial issues such as abortion rights. Currently, candidates who are asked about such “hot topics” by the media or voters can demur and cite Canon 5, he noted.
The ruling may also “politicize the judiciary,” Huebscher said, “because it seems like judges will be allowed to endorse candidates for non-judicial office,” another practice currently banned by Canon 5.
Joseph M. Cerrell, who has been working on judicial campaigns statewide since 1978, said he had not read the decision but did not see it as harmful. “I’m a big believer in free speech,” he told the MetNews.
Cerrell has no judicial candidates in November, as his only such client this year, Los Angeles Superior Court Judge C. Robert Simpson Jr., won a new term in March.
A Los Angeles Superior Court judge who was challenged in an election right after he got on the bench expressed concern about the ruling.
“Submission of judges to the electoral process has a danger of politicizing the whole process and thus has the possibility of compromising their independence,” Judge Rolf Treu, who defeated a challenger in 1996 and was unopposed this year, suggested.
Copyright 2002, Metropolitan News Company