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In response to the U.S. Supreme Court’s decision to strike down a Minnesota canon restricting judicial candidate speech, Pennsylvania Supreme Court Chief Justice Stephen Zappala has announced that the state high court is amending its conduct rules for judicial elections. Changes were made by the court Thursday to Canon 7B (1)(c) of the Code of Judicial Conduct, which governs judges and judicial candidates on the trial and appellate courts, and to Rule 15D (3) of the Rules Governing Standards of Conduct of District Justices. The changes take effect immediately. The first change involves deleting the following language from both Canon 7B (1)(c) and Rule 15D (3): that a candidate should not “announce his views on disputed legal or political issues.” A second change to Canon 7B (1)(c) and Rule 15D (3) involves adding a provision in conformance with the American Bar Association’s Model Code of Judicial Conduct. That amendment prohibits judicial candidates from making “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” Canon 7B (1)(c) and Rule 15D (3) are called “pledges and promises” sections because they basically state that a candidate not pledge or promise anything other than the faithful and impartial duties of the office. This is considered similar to the Minnesota “announce clause” that the U.S. Supreme Court found objectionable. “The fundamental need for judicial impartiality and the appearance thereof — a cornerstone of public trust and confidence in the courts — must be carefully balanced with some of the practical considerations attending campaigns,” Zappala said in a statement. “The changes adopted today underscore the court’s paramount concern with integrity in the judicial process, including judicial campaigns.” The state high court’s amendments are in response to the U.S. Supreme Court’s June 2002 ruling in Republican Party of Minnesota v. White. In a 5-4 vote, the federal court ruled that Minnesota restrictions on candidate speech in judicial elections were unconstitutional and in clear violation of the First Amendment. The decision struck down the state’s “announce clause” canon, which prohibited judicial candidates from announcing their views on disputed legal or political issues and effectively overturned the 8th U.S. Circuit Court of Appeals ruling from earlier this year. Pennsylvania is one of about 40 states that has some form of judicial elections. Most of those states have limits on what candidates can say or do while campaigning. In 23 states, judicial codes include the ABA Model Code provision adopted last week by Pennsylvania’s Supreme Court, and seven other states have similar provisions. University of Pennsylvania Law School professor Geoffrey Hazard, a nationally recognized legal ethics scholar, said he believes the amendments will past muster when stacked up against the U.S. Supreme Court’s Minnesota ruling. “I think there’s a reasonable chance that it will be upheld because it speaks directly to the performance of a judicial office,” Hazard said. “You can’t forecast how you’re going to vote. That’s not open-minded. “It’s slicing the salami pretty thin, but I think it recognizes the [U.S.] Supreme Court’s ruling while holding on to some regulation of speech during campaigns.” After the Minnesota ruling, Pennsylvanians for Modern Courts executive director Lynne Marks told The Legal Intelligencer that she was afraid that decision would encourage judicial candidates to seek votes by making statements that, if elected, would destroy confidence in their impartiality. After the state rules were amended, Marks said she thought the Pennsylvania Supreme Court probably felt that it had to delete the language concerning announcing one’s views because of the Minnesota ruling. But she said she was pleased that the court did not go so far as to also delete the entire pledges-and-promises clause of the Code of Judicial Conduct, which states that judicial candidates cannot pledge or promise how they will vote upon being elected. Accordingly, she was also happy with the amendment conforming to the ABA Code of Judicial Conduct. “I think they had no choice but to delete the announce clause, but the result will probably be more special interest involvement in judicial elections and more pressure on candidates to say where they stand on issues like tort reform, abortion, gun control or the death penalty,” Marks said. “We think this will also result in judicial campaigns that resemble legislative or executive branch elections.”

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