A federal appeals court on Tuesday cleared the way for Kentucky judicial candidates to raise money and run with political party affiliations, but ordered a lower court to consider whether the candidates can offer specific positions on issues.
Judge Jeffrey Sutton of the Cincinnati-based U.S. 6th Circuit Court of Appeals said banning campaign fundraising and party affi liations violated the First Amendment’s guarantee of free speech.
“Elections are elections, and the same First Amendment applies to all of them,” Sutton wrote for the threejudge panel.
In 2008, U.S. District Judge Karen Caldwell also threw out the Kentucky Judicial Conduct Commission’s rule against judicial candidates identifying themselves by party and raising money, but she upheld a ban on judicial candidates taking stands on specific issues.
Judge Thomas B. Wiseman of the 6th Circuit said he would have upheld the ban on candidates professing a stand on specific issues. Wiseman said candidates know when such a stance has been taken and states can deal with those on a case-by-case basis.
“Is there any doubt about a commitment when a candidate professes to believe life begins at conception?” Wiseman wrote. “Is there any committed bias in favor of a political party when a candidate for judge states a ‘strong belief in the right to keep and bear arms’?”
James Bopp, a Terre Haute, Ind., attorney who represented the plaintiff, said the ruling brings judicial campaigns into line with other political races.
“It just seems absurd that, as I think the 6th Circuit found, that you would have campaigns for judicial office and candidates could not do things like this that are so basic to running for office,” Bopp said.
A messages left for Greg Hovious, an attorney for the Kentucky Judicial Conduct Commission, was not immediately returned Tuesday.
Former Kentucky Republican Party official Marcus Carey, who lost the 2006 race to Kentucky Supreme Court Justice Wil Schroeder, challenged Kentucky’s rule that said judicial candidates must not “intentionally or recklessly” make a statement that could be perceived “by a reasonable person” as committing them to rule a certain way on an issue they could hear.
The new rule was drafted after a judge struck down a previous one that prevented judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.