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Washington-An Indiana lawyer who has sued a number of states over ethical canons restricting speech by judicial candidates has demanded that the National Center for State Courts “disavow” a memorandum advising judges on how to respond to election-year questionnaires. In a letter to the center, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., called the memo “disturbing” and cynical, particularly in its advice that judicial candidates never cite a judicial canon as the reason for not answering questions on a questionnaire. The advisory memorandum was prepared by the center’s National Ad Hoc Advisory Committee on Judicial Campaign Oversight in response to the growing number of questionnaires being sent to judicial candidates by a variety of special interest groups. Many of those questionnaires have raised ethical concerns or discomfort for sitting judges because they seek specific views on issues, such as abortion, the death penalty and gay marriage [ NLJ, Sept. 4]. Saying that “there is no simple right answer on how to respond,” the ad hoc committee offers five recommendations, drawn from the experiences of judges dealing with similar questionnaires, on its Web site at www.judicialcampaignconduct.org/Advice_on_Questionnaires-Final.pdf. Those recommendations include advice such as: “Consider responding with a letter” in an effort to educate voters on the role of judges and the candidate. Encouraging lies? But the recommendation most offensive to Bopp states: “Never use a judicial Canon to justify a decision not to respond.” The committee explains that states in which candidates have declined to respond because of the Canons have been subject to lawsuits. Despite a 2002 U.S. Supreme Court decision to the contrary, Bopp said in his letter, many states still have judicial canons prohibiting judges and judicial candidates from expressing their views on disputed issues. A judge or judicial candidate in these states who answers a questionnaire risks discipline for breach of the state’s ethical rules. “By recommending that judges and judicial candidates never cite a judicial canon when declining to respond to a questionnaire, the advisory memorandum is encouraging judges and judicial candidates to lie to the voters if the judicial canon in that state in fact prohibits their response,” he wrote. Even “more egregious,” according to Bopp, is the ad hoc committee’s reason for its recommendation, “namely that if a judge or judicial candidate does cite the canons, it might allow citizens, judges and judicial candidates to vindicate their rights of free speech and association.” Lori Montgomery, communications director for the National Center for State Courts, said the center provides secretariat support for the ad hoc committee. “The ad hoc committee maintains its own Web site. The National Center does not review or endorse any documents prepared by the ad hoc committee.” Ad hoc committee member Roy Schotland of Georgetown University Law Center said that Montgomery was correct about the relationship of the committee to the center. “That’s why it’s called an ‘advisory’ committee,” he said. But Schotland strongly disputed Bopp’s statement that the memo is telling judges to lie. “We think it’s telling judges to stand up and be responsible.”

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