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A federal appeals court has gutted Georgia’s rules designed to protect the dignity of judicial campaigns, striking down canons that punished candidates who made “misleading” statements and prohibited candidates from soliciting campaign funds personally. The ruling by the 11th U.S. Circuit Court of Appeals relied on a June decision by the U.S. Supreme Court, in which a one-vote majority held unconstitutional a Minnesota law that barred judicial candidates from announcing their views on “disputed legal or political issues.” Supporters of judicial campaign restrictions said the 11th Circuit had dangerously extended the high court’s ruling by allowing judges and candidates to raise campaign money personally. “The whole idea of constitutional review is that it’s principled and insulated” from political concerns, said Roy A. Schotland, a longtime advocate of campaign restrictions who teaches constitutional law at Georgetown University Law Center in Washington, D.C. The 11th Circuit’s ruling damages whatever insulation judges and candidates had from campaign contributors, added Schotland. He called that part of the ruling “dumb.” Georgia and about 30 other states that elect their judges prohibit candidates from dunning contributors, requiring campaign committees to do the work. Athens, Ga., Superior Court Judge Steven C. Jones, who chairs the state Judicial Qualifications Commission, said the ruling “obviously has a big effect on how judges are elected in Georgia.” At the JQC’s next meeting, scheduled for Nov. 1, Jones said he expects the commission to decide whether to appeal the ruling to the full 11th Circuit or to the Supreme Court. BIG WIN FOR ATLANTA LAWYER The decision was a win for Atlanta lawyer George M. Weaver, who in 1998 challenged the rules of the JQC in the midst of a heated election race against Justice Leah Ward Sears of the Georgia Supreme Court. In campaign flyers and television commercials, Weaver tried to make an issue of Sears’ statements that criticized Georgia’s same-sex marriage prohibition, the solicitation of sodomy law and the electric chair. But six days before the election, a special JQC election monitoring committee rebuked Weaver for engaging in “unethical, unfair, false and intentionally deceptive” campaign practices. Weaver lost the election, but he has maintained a four-year fight claiming the JQC’s rules violate the First Amendment right of free speech. U.S. District Judge Willis B. Hunt Jr. of the Northern District of Georgia in 2000 struck down JQC Canon 7(B)(1)(d), the prohibition against “misleading” speech, but he upheld the ban on candidates personally soliciting public endorsements and campaign contributions and the special committee’s powers to punish errant candidates. Hunt denied Weaver’s claims for damages, however, because as state actors dealing with unsettled constitutional questions, the JQC members were entitled to qualified immunity. Hunt also rejected Weaver’s request for a special election that would have given him another chance to challenge Sears. On appeal to the 11th Circuit, Weaver didn’t get any further with his damages claims or attempts to get a special election. But he won the rest of the case before Judges Gerald B. Tjoflat, Joel F. Dubina and, sitting by designation, 5th Circuit Senior Judge John M. Duhe Jr. Weaver v. Bonner, No. 00-15158 (11th Cir. Oct. 18, 2002). MINNESOTA RULING CITED Writing for the panel, Tjoflat cited the high court’s recent decision in Republican Party of Minnesota v. White, 122 S. Ct. 2528, in explaining that the government had the burden of proving its campaign restrictions were “narrowly tailored … to serve a compelling state interest.” The “misleading” speech canon didn’t survive strict scrutiny, Tjoflat wrote, because it went beyond prohibiting false statements made knowingly or with reckless disregard for the truth. “Negligent misstatements must be protected in order to give protected speech the ‘breathing space’ it requires,” Tjoflat wrote. “The ability of an opposing candidate to correct negligent misstatements with more speech more than offsets the danger of a misinformed electorate that might result from tolerating negligent misstatements.” Tjoflat echoed Justice Sandra Day O’Connor’s concurrence in the White case, in which she said states that elect their judges bring the problem of judicial impartiality on themselves. NO HAVEN FOR JUDICIAL ELECTIONS Supporters of judicial campaign codes have argued that protecting the integrity of the bench justifies rules keeping judicial candidates from political frays. But Tjoflat said the high court’s White decision suggests that the standard for judicial elections should be the same as the other campaigns. Tjoflat and his colleagues similarly were unimpressed by the JQC’s concerns that allowing candidates to personally solicit public endorsements and campaign funds could risk judges’ appearance of impartiality, the restriction in Canon 7(B)(2). “Successful candidates will feel beholden to the people who helped them get elected regardless of who did the soliciting of support,” Tjoflat wrote, adding that the canon “completely chills a candidate’s speech on these topics while hardly advancing the state’s interest in judicial impartiality at all.” SOLICITATION SEGMENT ATTACKED Deborah Goldberg, who works on judicial independence issues for the Brennan Center for Justice in New York, called Tjoflat’s comments about the solicitation ban “cynical.” She pointed out that concerns that judges will feel beholden to contributors were what prompted the rules to be enacted in the first place. Goldberg acknowledged that although judges easily could find out who contributed to their campaigns, the personal solicitation ban “helps judges screen themselves.” Jones, the JQC chair, said as a result of the rule change, nothing could stop a judge from seeking a contribution from a lawyer who had a case pending before him. Jones said the judge would be obligated to tell the opposing lawyer about the contribution, but the judge would not necessarily have to recuse himself. Jones said the ruling’s effect would also mean “you’re going to see elections like in Alabama,” where some judicial candidates have raised more than $1 million. In this year’s Georgia races for state supreme court, each of the challenged incumbents raised more than $200,000. Weaver was in trial on Monday and could not be reached, but he said in a voice-mail message that he was “very, very pleased” by the ruling. Weaver’s lawyer, Atlanta sole practitioner David J. Myers, said he hoped the ruling will “open things up” in judicial campaigns. ‘THINGS MAY GET MESSIER’ “It’s possible things may get messier,” he acknowledged, but he said an aggressive candidate’s opponent — plus the news media — were well-positioned to address the candidate’s charges. Voters, he added, often reject negative campaigns. James C. Rawls, who represented the JQC, said the “more speech” solution still put incumbent judges in an impossible position. The 11th Circuit ruling would still allow a challenger simply to lie about a judge’s record, thus forcing the incumbent to announce his views on a legal issue likely to come before his court. In fact, Weaver’s campaign dealt with two issues that came before Sears and the Georgia Supreme Court after the election: sodomy and the electric chair. Sears joined court majorities striking down Georgia’s sodomy law and its use of the electric chair. “Judicial elections are different, and they should be different” from other campaigns, said Rawls, a partner at Atlanta-based Powell, Goldstein, Frazer & Murphy. Cobb County, Ga., prosecutor Russell J. Parker, who ran a spirited but unsuccessful challenge against Chief Justice Norman S. Fletcher this year, said he felt the campaign rules restricted what he wanted to say in the campaign. Parker said he hadn’t planned on going negative, but “I probably would have spoken more forcefully” had the 11th Circuit struck down the JQC’s restrictions earlier. The Brennan Center’s Goldberg said allowing judges and candidates to personally solicit funds was a reason states should publicly finance judicial campaigns, a practice used by Wisconsin and North Carolina. The 11th Circuit ruling, she said “reinforces my concern the federal courts don’t understand the dynamics of elections.” Tjoflat and Duhe served on state courts in Florida and Louisiana, respectively, before presidents appointed them to lifetime federal posts. Dubina has never held a state court judgeship. If upheld, the 11th Circuit ruling will cost Georgia more than its JQC rules. If the state ultimately loses the case, it would have to pay Weaver’s legal fees, which Myers said so far total $173,000.

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