U.S. Court Strikes Down Kentucky's Free-Speech Restrictions on Judges

by | May 16, 2016

By John Cheves

A federal judge has struck down some of Kentucky's judicial conduct rules meant to keep nonpartisan judges and judicial candidates out of organized politics.

On Thursday, U.S. District Judge Amul R. Thapar handed down a summary judgment largely in favor of Kentucky Court of Appeals Judge Allison Jones and 2014 judicial candidates Robert A. Winter Jr. and Cameron A. Blau.

The plaintiffs, all from Northern Kentucky, sued the Kentucky Judicial Conduct Commission in 2014 to challenge its assorted prohibitions against political behavior by judges and judicial candidates. Thapar said Kentucky has a right to make judicial races nonpartisan, but the First Amendment's protection of free speech means judges and judicial candidates also have rights.

Specifically, Thapar struck down parts of the code that prohibited publicly declaring membership in a political party; on giving political donations; on engaging in political activity in general; on speaking for or against a political organization or candidate, short of an official endorsement; and on pledging to act a certain way on given issues likely to come before the court.

"We do have a First Amendment in this country ... and that means states like Kentucky must be surgically precise when they enact what is in fact a speech code," Thapar wrote. "It also means that states cannot gag candidates from announcing their views on the important issues of the day. Thus, to the extent that the canons are too vague -- or limit what a judge or would-be judge can say about an issue -- they violate the First Amendment."

Steven D. Wolnitzek, chairman of the Judicial Conduct Commission, did not return a call seeking comment Friday. The commission operates under rules set by the Kentucky Supreme Court.

Christopher Wiest, attorney for Winter and Blau, said Kentucky cannot elect its judges while expecting judicial candidates to say little about themselves during their campaigns. If judicial candidates want to say they are a Republican or a Democrat or they want to do something about the state's heroin addiction epidemic, then that should be permitted, Wiest said.

"There's always this tug of war between some parts of the judiciary that don't want any partisanship being brought into the courtroom and candidates like Mr. Winter who recognize that political affiliation and personal opinions are just a fact of life," Wiest said. "Otherwise, why would we be having this big standoff in Washington right now over whether Merrick Garland gets to serve on the U.S. Supreme Court?"

Kentucky's judicial conduct rules against partisan activity have suffered several defeats in recent years. Marcus Carey, an Erlanger lawyer who ran for the state Supreme Court in 2006, sued for the right to publicly share his political views as a judicial candidate. Carey was backed in 2010 by the 6th Circuit U.S. Circuit Court of Appeals, which warned Kentucky that its judicial conduct rules must be narrowly tailored to avoid infringing on anyone's free speech.

"There is room for debate about whether the election of state court judges is a good idea or a bad one. Yet there is no room for debate that, if a state opts to select its judges through popular elections, it must comply with the First Amendment in doing so," the appellate court ruled.

(c)2016 the Lexington Herald-Leader (Lexington, Ky.)