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In a decision drawing parallels to a key 2002 ruling by the U.S. Supreme Court, a federal judge has found that three provisions of the Wisconsin Code of Judicial Conduct violate the First Amendment in restricting the speech of judicial candidates. “The ruling has broad ramifications on the way that states have been regulating judicial speech and judicial candidate speech,” said James Bopp, a partner at Bopp, Coleson & Bostrom in Terre Haute, Ind., who represents the plaintiff in the case, Milwaukee County Circuit Court Judge John Siefert. “Few of those restrictions, which historically have been quite comprehensive, are likely to survive First Amendment scrutiny.” Siefert sued last year seeking to overturn the provisions, which had prevented him from affiliating with the Democratic Party, endorsing candidates for other political offices, such as now-President Barack Obama, or soliciting contributions for his own election campaign. The suit sought declaratory and injunctive relief against the Wisconsin Judicial Commission, which enforces the state’s conduct code, and its members. Siefert v. Alexander, No. 3:08-cv-00126 (W.D. Wis.). Specifically, the provisions at issue state that a judge or candidate may not be a member of a political party, may not speak on behalf of or endorse another candidate belonging to a political party and may not personally solicit or accept campaign contributions. On Wednesday, U.S. District Judge Barbara B. Crabb of the Western District of Wisconsin agreed with Siefert that the provisions violate his free speech rights. She disagreed with the idea that preventing judges from partisan privileges maintains the public’s confidence in an unbiased judiciary, noting that “even if one believes that a judge with a partisan preference is more likely to decide cases for partisan reasons, prohibiting him from publicly acknowledging that preference does nothing to make him more open minded. It only allows him to pretend that he is. The best way to eliminate potential bias is to shine a light on it, not cover it up.” In her ruling, the judge made several parallels to the U.S. Supreme Court case Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which found that a restriction on judicial candidate speech in Minnesota was unconstitutional. Bopp said the Wisconsin case does not challenge nonpartisan elections, but seeks to strengthen how judicial candidates run their own election campaigns. “In that respect, it is meaningful to the voter to know what the party preference is of judicial candidates because it is an indicator of their general political views and specifically their judicial philosophy.” Bill Cosh, communications director of the Wisconsin Department of Justice, which is representing the commission and its members, said the department was reviewing the decision. Last month, the Supreme Court of Ohio reinstituted a prohibition in its Code of Judicial Conduct against allowing judicial candidates to identify their party affiliations during general elections. The prohibition originally had been lifted in revisions set to become effective on March 1.

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