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The U.S. Supreme Court decision striking down one kind of restriction on judicial candidates’ speech seems certain to trigger litigation as early as this fall. If the Court had simply said that an election is an election regardless of the office at stake, there would be little controversy over what is all right to say in campaigns, says election law scholar Roy Schotland of Georgetown University Law Center. “But they didn’t do that,” he says. Instead, the justices invalidated only one type of restriction on speech, leaving others untouched. “What will happen is we will have much more litigation,” he says, as judicial candidates, either intentionally or unintentionally, test the existing boundaries under the high court’s First Amendment ruling. Schotland’s assessment is echoed by supporters and opponents of what the high court did on June 27 in Republican Party of Minnesota v. White, No. 01-521. The winning lawyer, James Bopp of Bopp, Coleson & Bostrom of Terre Haute, Ind., says the immediate and long-term fallout from the ruling “really depends on the reaction of the state supreme courts,” which promulgate the speech limits in most states. But, he predicts, their efforts are likely to draw candidates back into the federal courts for guidance. ‘ROOM FOR REGULATION’ There are steps that states or their highest courts can take to try to keep judicial campaigns from becoming partisan free-for-alls, says Deborah Goldberg, deputy director of the Brennan Center for Justice. They can encourage voluntary pledges by candidates to follow speech guidelines and they can create campaign conduct committees to advise candidates and mediate complaints, she says. “One of the important things about this decision is the fact that the Court went out of its way to say, ‘We are not saying judicial elections have to sound just like other elections do,’” says Goldberg. “There is still considerable room for regulation of judicial elections, in my view. Obviously, exactly what the parameters of that are will be tested over time.” In the case, the Minnesota Republican Party and former judicial candidate Gregory Wersal, a St. Paul, Minn., criminal defense lawyer, challenged the constitutionality of a canon of judicial conduct adopted by the state supreme court. Known as the “announce clause,” the canon prohibited a judicial candidate from “announcing his or her views on disputed legal or political issues.” Minnesota’s announce clause is based on a 1972 canon of the ABA Model Code of Judicial Conduct. Another eight states have incorporated the announce clause into their codes. In 1990, the ABA, concerned about the constitutionality of its 1972 canon, replaced it with the so-called commitment clause, which prohibits “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” At least 25 states have incorporated this clause into their codes. And, a handful of states have adopted their own language to achieve the same result. Many states and the ABA code also have a “pledges or promises” clause, which prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” In the Minnesota case, the high court held only that the “announce clause” violated the First Amendment. Writing for the 5-4 majority, Justice Antonin Scalia said that the clause was not narrowly tailored to serve the state’s asserted interests in preserving the state judiciary’s impartiality and the appearance of impartiality. Scalia wrote that the constitutionality of the “pledges or promises” clause was not at issue in the case. He also noted in a footnote that Minnesota had argued in its case that the scope of the announce clause was no broader than the ABA’s commitment clause, but, he added, the analysis in the case did not turn on whether those two clauses were identical. “As with many court rulings, it’s not absolutely clear how far that ruling goes,” says Chief Justice Tom Phillips of the Texas Supreme Court. “We know it got rid of the Minnesota clause and clauses in eight other states. But we’re not clear if it affects the pledges or promises clause which covers at least the more egregious problems of a candidate promising to rule a certain way before considering the facts and the law. “We’re not absolutely sure the commitment clause in the 1990 ABA rule is effective now, and we don’t know if there are other isolated parts of our code that are in trouble.” STUDY IN PROGRESS His court, adds Phillips, has appointed a committee of constitutional scholars — in and outside of Texas — to look at the code provisions and report back on July 24. The ABA, which has long opposed the election of judges, will redraft the judicial canons of the model code to conform with the Supreme Court ruling, says ABA President Robert Hirshon. But he notes that “the announce rule along with the pledges and promises rule created a bright-line rule. I think candidates are going to unintentionally cross the line and that will give rise to more litigation.” Bopp, who represented the Minnesota Republican Party, believes the commitment clause is also unconstitutional if its scope is identical to the announce clause. And, he adds, the pledges or promises clause is also at risk if it prohibits more than a pledge or promise to reach a particular result in a certain case. “The final question is whether the disciplinary folks are going to interpret other canons to reach the same conduct that the Supreme Court said was constitutionally protected,” says Bopp. “I had a case in Alabama where the regulators said a Christian Coalition questionnaire could not be answered by judicial candidates and they cited four or five different canons. They’re going to end up back in court if they try this.” In the face of the confusion, state high courts and disciplinary groups may simply throw up their hands and decide they cannot discipline in this area, says Barbara Reed, counsel and policy director of the Constitution Project’s Courts Initiative. “I wouldn’t be surprised at all that what is left is voluntary forms of oversight,” she says. “That will come mostly from bar association efforts, groups like us and the Brennan Center and local citizen groups like the League of Women Voters.” In roughly a dozen states, she says, her group and the National League of Women Voters have become partners in promoting standards — “higher ground standard” — for campaign speech and financial disclosure in judicial campaigns. Last spring, in anticipation of a Supreme Court ruling in the Minnesota case, the National Center for State Courts sent a letter to all state chief justices urging them to consider asking judicial candidates to sign a pledge on the conduct of their campaigns, says Georgetown’s Schotland. The letter included a copy of the pledge used by the New York State Bar Association. Schotland says the letter also recommended the creation of campaign-conduct committees in their states. TWO KINDS OF COMMITTEES There are two types of conduct committees, he explains. Some states, such as Georgia, Louisiana and Mississippi, have official campaign-conduct committees set up by their state supreme courts. There also are unofficial committees set up by state bar associations, for example, in Ohio and New York. In New York, Schotland says, there are committees in every major county and in some of the smaller ones. “So, if a candidate says things in a campaign that shouldn’t be said, the committee could talk with the candidate and see if it can get him to stop, and if it can’t, the committee can go public with the problem,” Schotland says. Voluntary pledges can be effective, says Schotland and the Brennan Center’s Goldberg. Columbus, Ohio, notes Schotland, has a very detailed pledge. “I would think that a lawyer who signs a pledge would have a hell of a statement to make if his opponent doesn’t,” says Schotland. North Carolina, adds Goldberg, has conducted judicial elections under voluntary pledges. “The Ohio affiliate of the Chamber of Commerce has announced it will not go negative in elections this year unless the other side goes first and it has voluntarily agreed to disclose donors in campaign advertising,” says Goldberg. “We haven’t seen that before and there’s no reason it can’t be done in other states.” But all of those reforms, she concedes, are made difficult by the huge influx of special interest funds into modern judicial campaigns. And that is why Justice Sandra Day O’Connor — the only justice to have been elected to a court — ultimately voiced the correct choice in her concurring opinion, says John Echeverria of Georgetown University Law Center, who represented several environmental and conservation groups as amicus supporting neither party in the high court case. “She said electing judges is a fundamentally misguided idea,” he explains.

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