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Steven W. Smith, a Republican candidate for a seat on the Texas Supreme Court, is asking a federal judge to remove the gag from judicial candidates. In a suit filed on Jan. 11 and amended on Jan. 25, Smith challenges Canon 5(1) of the Texas Code of Judicial Conduct, which bars judges and judicial candidates from making statements that “indicate an opinion on any issue” that they may have to interpret as a jurist. “I filed this First Amendment lawsuit because voters deserve to know more about the qualifications and judicial philosophy of Texas Supreme Court candidates than the current regulations allow,” Smith, an Austin solo, says in a written statement. Smith, one of the winning lawyers in Hopwood v. Texas, which ended affirmative action in admissions to state universities and law schools, is challenging Justice Xavier Rodriguez in the March 12 primary. Gov. Rick Perry appointed Rodriguez to the supreme court in 2001 to replace Greg Abbott, who resigned and is running for attorney general. The provision being challenged in Smith v. State Bar of Texas, et al. allows judges and candidates for the courts to discuss their judicial philosophy if the discussion is “conducted in a manner which does not suggest to a reasonable person a probable decision on any particular case.” About all judicial candidates can say under that rule, Smith says, is whether they are liberal, moderate or conservative. “To me that’s insufficient,” he says. Smith is asking U.S. District Judge James Nowlin of Austin to issue a preliminary injunction so that he can “exercise his constitutional right to free speech” and inform voters of his “general views on certain disputed legal and political issues during the current primary election,” according to the suit. Judges and judicial candidates who make statements that violate Canon 5(1) can be disciplined by the State Commission on Judicial Conduct or the State Bar of Texas. The judicial conduct commission issued a public warning to Court of Criminal Appeals Judge Tom Price in January 2001. Price was sanctioned for a political brochure used in his unsuccessful campaign for presiding judge of the court in 2000. The brochure included a statement by Price that he is an advocate for crime victims and does not believe in leniency for criminals. RIGHTS VIOLATED? Smith alleges in his suit that Canon 5(1) “is not narrowly tailored to serve a compelling governmental interest, and is impermissibly broad and vague.” The suit alleges that the defendants have “intentionally defeated” his right to free speech in violation of the First and 14th amendments to the U.S. Constitution. Robbi Hull, a partner in the Austin office of Vinson & Elkins, says Texas is not the only state that has adopted a provision that restricts what judicial candidates can say about issues. “The particular canon Mr. Smith is challenging has been adopted by a number of states, although I don’t know how many,” says Hull, who is defending the State Bar in the suit. Vinson & Elkins spokesman Joe Householder says the firm is handling the case on a pro bono basis. State Bar President Broadus Spivey, a shareholder in Austin’s Spivey & Ainsworth, says he sees no problem with the canon that prompted the suit. “My personal view is the provisions are justified and valid,” he says. Spivey says the rules for judges and judicial candidates should be different than those for candidates seeking seats in the Legislature. He says the Legislature’s job is to pass laws, and a judge’s job is to interpret laws. “[A judge] cannot enter that fray with a preconceived notion,” Spivey says. But Smith says it isn’t clear what a judicial candidate can and cannot say to inform voters about his or her judicial philosophy. In his amended complaint, Smith says it appears that the canon prohibits a candidate from informing voters of his judicial philosophy on a number of issues, such as public school finance. Smith says he wants to know whether it’s a violation for a judicial candidate to make a statement that he believes the Texas Constitution should not be liberally interpreted as mandating a “Robin Hood” system of school. The Texas Supreme Court has upheld the current system of funding public schools in the state. That system requires property-wealthy districts to share funds with property-poor districts. Smith says in the suit that he has not announced his general views on disputed issues because of fear that he might be sanctioned.

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