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WASHINGTON � During his recent confirmation hearings, U.S. Supreme Court nominee Samuel Alito invoked that sacred mantra of judicial nominees: No comment on issues that may come before him. Now imagine a world in which judges up for retention election or in contested elections or just whenever the spirit moves them, comment all of the time. That world � as well as one in which judicial candidates curry favor with political parties and directly solicit contributions from potential litigants � may be reality this fall, when 30 states hold elections for their state supreme courts. Judicial elections are likely to look more and more like nonjudicial elections around the country as federal courts � unchecked by the U.S. Supreme Court � accelerate a trend of striking down state restrictions on what judicial candidates can say and do, predict election scholars and others. The Supreme Court last week declined to review a decision by the Eighth Circuit U.S. Court of Appeals invalidating key provisions of Minnesota’s judicial campaign rules. Review had been sought by Minnesota and was supported by the American Bar Association, the Conference of Chief Justices, 39 of the nation’s largest corporations and judicial ethics and constitutional law scholars. Dimick v. Republican Party of Minnesota, No. 05-566. Both the Eighth and the Eleventh circuits have now struck down state “solicitation” clauses, barring judicial candidates from personally soliciting contributions from potential donors, and “partisan activities” clauses, prohibiting judicial candidates from accepting or using party endorsements and engaging in other partisan events. The First Amendment is the basis for the rulings. Although “ cert denials” by the Supreme Court are not rulings on the merits, they do have impact, and the denial in the Eighth Circuit case, said election experts, will be felt well beyond the physical boundaries of that circuit. An estimated 19 states have limits on partisan conduct by judicial candidates, and 28 states restrict personal solicitation of campaign contributions. “We could be entering a period of political free fall here,” said judicial election scholar Charles Geyh of the Indiana University School of Law-Bloomington. “The one thing you have had in place for 200 years or so is this culture in the judiciary to preserve its aloofness, its separation, by not being out there behaving like politicians. That culture predates any ethical rules. The pressure on these guys to change that is going to be considerable.” A STEP BEYOND The Eighth Circuit decision in Dimick was a step beyond what the Supreme Court has done in this area. The high court first examined Minnesota’s system in 2002 in Republican Party of Minnesota v. White, 536 U.S. 765, ultimately holding that the so-called announce clause of the state’s judicial code, which prohibited judicial candidates from stating their views on legal issues within the province of the court for which they were running, violated the First Amendment. The 5-4 majority’s analysis left considerable uncertainty about the continuing validity of restrictions on judicial speech. After the White decision, some states, such as North Carolina, moved essentially to deregulate all judicial speech in campaigns. Other states chose to go no further than what White held. Just weeks after the White decision, Geyh recalled, an Indiana lawyer circulated a questionnaire to state judicial candidates asking whether they believe the state constitution protected the right to an abortion, the right to assisted suicide and other issues. Although candidates are not required to answer, he said, White increased the pressure on them to do so, and when they do, the possibility that single-issue politics will determine the outcomes of elections or retention elections skyrockets. “I think most jurisdictions have made limited changes in response to White, partly because they don’t know what to do and partly because they don’t like White,” said Geyh. “They don’t like judges venting their spleen on everything.” When the White case went back to the Eighth Circuit, that court then struck down the partisan activities and solicitation clauses. The appellate court also suggested that when these speech restrictions are enacted by state supreme courts � as most of them are � and not by state legislatures, those courts have exceeded their authority. “According to the Eighth Circuit, it was not clear under Minnesota law that the legislature had given the state Supreme Court power to regulate something outside the business of the courts,” explained election law scholar Richard Hasen of Loyola Law School in Los Angeles. With the cert denial last week, it’s possible that “some states will just throw up their hands and abandon these ethical canons before the Supreme Court acts, like North Carolina did after the White decision,” said Deborah Goldberg, director of the Democracy Program at New York University School of Law’s Brennan Center for Justice. Rejection of the solicitation and partisan activities clauses both present “serious risks” in upcoming judicial elections, added Goldberg. “The solicitation clause will make it much easier for judges in the Eighth and Eleventh circuits to stand in front of a room full of people from a corporation that is appearing before them the next day and welcome their support in the next election,” she said. “That is not a situation I think anybody would welcome. “There will be increased opportunities for activities that at least give the appearance of impropriety and the potential for corruption,” she added. The brief filed by 39 corporations supporting review in Dimick, she noted, said that corporations don’t want to be in the position of feeling coerced into giving, and they worried about increasingly “costly, divisive and partisan” judicial elections. “This opens the opportunity for judges to dun parties who appear before them. It’s difficult for these people to say no. That’s not a pretty picture,” she said. If more courts strike down partisan-activities limits, Goldberg said, it will be impossible “for all practical purposes” for states to have nonpartisan elections. “I think the jury is out is on how they maintain true nonpartisanship. But we do know for sure when the party label doesn’t show up on the ballot but parties are heavily involved, for all practical purposes they are partisan elections. Ohio and Michigan have been the poster child for bad judicial elections for several cycles now.” Many judicial candidates, even if they have a constitutional right to engage in partisan activities or direct solicitation, will decline to do so out of fear it will look unseemly, predicted Loyola’s Hasen. “But I think some will engage in these activities,” he added. “I also expect we will see more litigation in places outside the Eighth Circuit to get more rules struck down.” The attack on restrictions on judicial campaign speech, Hasen added, seems to be a national, coordinated strategy. Hasen noted that one leading set of challengers are anti-abortion plaintiffs whose chief attorney � James Bopp of Bopp, Coleson & Bostrom of Terre Haute, Ind. � has had “a remarkable run” in the Supreme Court and lower courts. Bopp said that he expects that federal courts will continue to strike down these provisions because “the entire foundation upon which the massive restrictions on judicial candidates was built over the last 50 years by the ABA and the courts was destroyed in White. “The premise of this incredibly complex and restrictive regime was that judicial elections were different and the First Amendment did not have full application,” he added. “It’s clear now that is not true.” The ABA and state supreme courts, Bopp charged, have chosen “defiance over compliance” with the White decision, and that is why federal courts will continue to step into these cases. Bopp does believe there are constitutionally defensible restrictions on judicial speech. “[Candidates] can be prohibited from pledging or promising certain results in particular cases,” he said. But the ABA’s model code provision prohibiting such commitments extends to issues, he added, and that is “too broad.” HOW FAR? The cert denial in Dimick creates a “serious issue” for the ABA, which has just issued a final draft of its revised model code of judicial conduct, said Geyh, a co-reporter to the ABA commission on the code. “We are trying to create a model code for everyone, but we have a situation in place where some segments of the nation are subject to different constitutional restrictions than others,” said Geyh. Canon 5 of the draft revision suggests different restrictions on political activity when judges are selected by partisan election, nonpartisan and retention election, and appointment. Loyola’s Hasen predicted that as judicial campaigns look more and more like nonjudicial ones, pressure will increase for recusals of judges based on political party membership, personal solicitations of contributions from lawyers or parties appearing before them, or for any other appearance of impropriety raised by campaign activities. “The suggestion in White is that recusal is a more narrowly tailored means of dealing with conflicts of interest than limits on campaign speech,” said Hasen. That issue is squarely presented in a constitutional challenge now pending in the Supreme Court. Avery v. State Farm Mutual Automobile Insurance Co., No. 05-842, asks: “May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party’s case is pending, cast the deciding vote in that party’s favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?” The high court petition stems from Illinois Supreme Court Justice Lloyd Karmeier’s decisive vote last August vacating about half of a $1.05 billion jury award against State Farm in a class action. The petition states that Karmeier raised and spent more than $4.8 million to win his seat in November 2004, a large portion of which came from individuals or organizations closely associated with State Farm. Karmeier, ironically, defeated the lower appellate judge who upheld the jury award. Karmeier refused to recuse himself. State Farm opposed the recusal motion. Marcia Coyle is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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