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A debate over free speech in judicial elections is being kept secret in the Georgia Supreme Court. The justices have refused to release recommendations made by the state Judicial Qualifications Commission that would change campaign rules that bar candidates from making misleading statements and personal fund-raising solicitations. Those rules were struck down last year by a federal appeals court as a violation of the First Amendment. The court’s intransigence shields the public from an important policy decision — how to maintain the dignity of judicial elections without running afoul of the Constitution. Some judicial elections around the country have started to cost millions of dollars and have been marked by negative campaigns in which judges complain their records are being distorted. Beyond a request that candidates conduct themselves with decorum, legal experts said it’s unclear what kind of rules could survive the broad language of a U.S. Supreme Court decision that last year struck down Minnesota’s rule prohibiting judicial candidates from announcing their views on political issues. The Georgia rules grew out of a 1996 campaign in which a candidate running for the Georgia Court of Appeals accused the incumbent of “protecting criminals” because he wrote a decision reversing a child molestation conviction on a “technicality.” When the commission in 1997 recommended the current campaign speech rules to the Georgia high court, the commission’s then-executive director spoke at length with the Daily Report about the proposals and the reasons behind them. In contrast, the current JQC executive director, Cheryl F. Custer, last week referred a request to see the recommendations to the commission’s chairman, Judge Steven C. Jones of the Western Circuit Superior Court in Athens, Ga. Jones, who has been credited with making the judicial discipline process more transparent, said he did not think he was authorized to share the JQC’s recommendations without the state Supreme Court’s permission. Jones compared the commission to a law clerk who gives private advice to a judge. In Jones’ analogy, the judge is the Georgia high court, which may adopt, amend or reject the commission’s recommendations. On Monday, court spokesman Rick Diguette said the court had “nothing to release on this issue.” Calls to each of the seven justices were unsuccessful in getting an explanation of why they would not open the recommendations for public review. Justice George H. Carley, who is the liaison between the court and the commission, said he would not elaborate on Diguette’s statement. “You have the position of the public information officer,” Carley said. ‘THE SMART THING TO DO’ “What in the world are they thinking?” asked Lucy A. Dalglish, of the Arlington, Va.-based Reporters Committee for the Freedom of the Press, when told of the Georgia court’s stance. Dalglish acknowledged that many states’ open records laws do not apply to the courts. But she added that “courts all over the country have been rather open” when they are considering making rule changes. “It would be useful to float the recommendations out there,” Dalglish said, so that anyone could comment on potential problems before the court makes its final decision. Dalglish said releasing the commission’s recommendations would be “the smart thing to do — particularly since this is such a hot-button issue around the country.” Gerald Weber of the Georgia chapter of the American Civil Liberties Union noted that drafts of legislation from public agencies usually are considered public records. “But more importantly,” he added, “openness is in the public interest and should be the mantra for the JQC and the courts as well.” Arnall Golden Gregory partner Walter H. Bush Jr., who works on First Amendment and media law issues, said “it’s perfectly legal and proper” for the court to keep the public out while it considers what to do with the JQC’s recommendations — just as the court’s deliberations on cases are secret. But Bush added that once the court decided how to rewrite the campaign rules, it would be “highly advisable” to announce its plans and give the public a month or so to comment on them. A JUDICIAL FREE-FOR-ALL? The federal appeals decision that prompted the JQC to rewrite its campaign rules grew out of the heated 1998 race for state Supreme Court, in which Atlanta litigator George M. Weaver challenged Justice Leah Ward Sears. In campaign flyers and television commercials, Weaver made an issue of Sears’ statements and writings that criticized Georgia’s same-sex marriage prohibition, the solicitation of sodomy law and the electric chair. 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 sued the JQC, claiming its rules violated the First Amendment right of free speech. U.S. District Judge Willis B. Hunt Jr. 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. He also upheld the special committee’s powers to punish errant candidates. The 11th U.S. Circuit Court of Appeals last year said the “misleading” speech canon didn’t survive strict scrutiny 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,” wrote Judge Gerald B. Tjoflat. “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.” Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002). The 11th Circuit also found that the JQC’s special monitoring committee chilled Weaver’s free speech rights when it rebuked him. One local judge awaiting the Georgia high court’s decision on the new campaign rules said that as a result of the 11th Circuit decision, there could be no speech restrictions that would comply with the First Amendment. That “is sort of a horrifying thought. We could turn into a free-for-all like other states,” the judge said. Weaver said the Georgia high court “should not re-enact some broad rule to restrict free speech. They should leave it to the marketplace of ideas.”

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