Archive for April, 2011

THE NEW “SQUEAL” RULE – Your duty to report ethics violations

Wednesday, April 20th, 2011

We note that the language of this rule (which is posted on the KBA web site) does not require the filing of a formal complaint. It only requires a report to the Bar Counsel.        

 If you wish to file a formal complaint you can find the suggested KBA form at the KBA site under ETHICS.

 A formal complaint must be signed and notarized.   There is no such requirement in SCR 3.130 (8.3) for merely making a report to the Bar Counsel.

 The following rule provides “civil and criminal” immunity to the party reporting such information in good faith.

 An Attorney’s Duty to Report Ethical Violations

 SCR 3.130(8.3) Reporting professional misconduct

 (a) A lawyer who knows that another lawyer has committed a violation of the Rules of

Professional Conduct that raises a substantial question as to the lawyer’s honesty,

trustworthiness or fitness as a lawyer in other respects, shall inform the Association’s Bar


(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial

conduct that raises a substantial question as to the judge’s fitness for office shall report such

violation to the Judicial Conduct Commission.

(c) A lawyer is not required to report information that is protected by Rule 1.6 or by other law.

Further, a lawyer or a judge does not have a duty to report or disclose information that is received in the course of participating in the Kentucky Lawyer Assistance Program or Ethics Hotline.

(d) A lawyer acting in good faith in the discharge of the lawyer’s professional responsibilities required by paragraphs (a) and (b) or when making a voluntary report of other misconduct shall be immune from any action, civil or criminal, and any disciplinary proceeding before the Bar as a result of said report, except for conduct prohibited by Rule 3.4(f).


(e) As provided in SCR 3.435, a lawyer who is disciplined as a result of a lawyer disciplinary

action brought before any authority other than the Association shall report that fact to Bar


(f) As provided in SCR 3.166(2), a lawyer prosecuting a case against any member of the

Association to a plea of guilty, conviction by judge or jury or entry of judgment, should

immediately notify the Director of such event.

HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90




(1) Self-regulation of the legal profession requires that members of the profession initiate a

disciplinary investigation when they know that another lawyer has violated certain minimum

standards of behavior as described in the Rule. Lawyers have a similar obligation with respect to

judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that

only a disciplinary investigation can uncover. Reporting a violation is especially important where

the victim is unlikely to discover the offense.

(2) If a lawyer were obliged to report every violation of the Rules, the failure to report any

violation would itself be a professional offense. Such a requirement exists in many jurisdictions

but has proved unenforceable. The Rule limits the reporting obligation to those violations that a

self-regulating profession must vigorously endeavor to prevent. A measure of judgment is,

therefore, required in complying with the provisions of this Rule. The term “substantial” refers to

the seriousness of the possible offense and not the quantum of evidence of which the lawyer is

aware. A report should be made to the bar disciplinary agency unless some other agency, such

as a peer review agency is more appropriate in the circumstances. Similar considerations apply

to the reporting of judicial conduct. Lawyers requiring assistance in determining the need to

report a violation may confer with their Supreme Court District Committee member. Pursuant to

SCR 3.530(7) a lawyer’s communications with a District Committee member are confidential.

(3) A lawyer who knows that a judge has committed a violation of the Code of Judicial Conduct

that raises a substantial question as to the judge’s fitness shall, at a minimum, file a report with

the Judicial Conduct Commission. The term “substantial” refers to the seriousness of the possible


(4) The duty to report professional misconduct does not apply to a lawyer retained to represent a

lawyer whose professional conduct is in question. Such a situation is governed by the rules

applicable to the client-lawyer relationship.

(5) The duty to report misconduct is an important aspect of self-regulation, and is intended to

achieve societal goals. In order to protect a lawyer who makes a report in compliance with the

Rule and to encourage a lawyer to make a voluntary report of other acts of misconduct, the Rule

provides qualified immunity to the reporting lawyer thereby removing the fear of retaliation by the

reported lawyer or judge. The Rule’s immunity provision is founded upon a similar rule of

immunity provided by SCR 4.300, Canon 3D(3) of the Kentucky Code of Judicial Conduct

KBA Ethics Opinion Prohibits Ex Parte Communication Between Judge and Prosecutor

Wednesday, April 20th, 2011


Issued: May 2002

 Subject: Ex Parte Communication Issues in Meetings between Prosecutors and Judges


Question: May prosecutors (Commonwealth’s attorneys or county attorneys) arrange and conduct meetings with judges for the purpose of establishing informal

policies or shared understandings on issues likely to influence outcomes in

pending or future criminal cases?

Answer: No.

Principal References: Rules 3.5 and 8.3(e), Kentucky Rules of Professional

Conduct (S.C.R. 3.130); Canon 3(B)(7), Kentucky Code of

Judicial Conduct (S.C.R. 4.300); American Bar

Association, Center for Professional Responsibility,

Annotated Model Rules of Professional Responsibility (4th

ed. 1999); American Law Institute, Restatement (Third) of

the Law Governing Lawyers § 113 (2000)




This inquiry calls upon us to examine ex parte aspects of meetings held by

prosecutors with judges of a judicial district or circuit, for the purpose of establishing

informal policies or shared understandings on issues of criminal justice and court

administration. Our opinion is narrow in scope. It is not directed toward regular or

recurrent training institutes or continuing professional education programs, where

lawyers and judges necessarily and appropriately interact. Nor is it directed toward

conferences, training institutes, or meetings on matters of case management, scheduling,

and other topics relating generally to the efficient administration of justice. Rather, this

opinion is directed toward meetings focusing on issues likely to influence outcomes in

pending or future criminal cases. Furthermore, this opinion addresses only the

professional responsibilities of lawyers; it does not purport to determine the

responsibilities of judges or court staff.

The inquiry was prompted by a meeting in which the agenda, prepared by the

county attorney, apparently included not only administrative issues regarding the

scheduling of hearings and trials, but also such matters as the following: admissibility of

evidence (e.g., scientific tests of intoxication); proper time at trial to introduce

defendants’ prior criminal records; [dis]allowance of pleas to lesser offenses (e.g., driving

under the influence with lower blood-alcohol content); circumstances in which the court

should consider employing diversion programs, home incarceration, and other alternative

dispositions; possible monetary sanctions against defense counsel who make last-minute

requests for trial continuances or jury trials; and other, unstated concerns over the

conduct of certain defense attorneys. No specific pending or impending cases were

discussed at the meeting. Members of the defense bar evidently received copies of the

agenda, and they were free to attend the meeting or to communicate their views, either to

the county attorney or to the district judges.

The Committee recognizes that recurring issues in criminal justice and court

administration inevitably will generate casual conversation among individual judges,

court staff, prosecutors, and defense counsel. The Committee also acknowledges that

professional education, training, and open communication are essential to developing

case management systems and practices that promote efficiency while enabling the

judiciary, the executive branch, and the bar to perform their distinctive responsibilities

effectively. Thus, if a court engages in administrative rule-making, it may enlist the

expertise of a bench-bar committee, and may provide opportunities for comment by the

bar and the public, in order to understand the perspectives and needs of all constituencies

and key role-players in the administration of justice. But if lawyers and judges meet

outside the framework such professional education, training, or rule-making processes,

for the purpose of exploring informal policies or shared understandings on the way

certain issues will be handled – and if those issues are not limited to case management,

but reach instead to substantive or procedural matters likely to influence the outcomes of

pending or future cases – then such meetings have potential implications for lawyers

under the Rules of Professional Conduct.

Our analysis begins with Rule 3.5 (S.C.R. 3.130 [3.5] ) of the Kentucky Rules of

Professional Conduct, which protects the “impartiality and decorum of the tribunal.”

The rule provides that a lawyer shall not “seek to influence a judge … by means

prohibited by law,” nor shall a lawyer “[c]ommunicate ex parte … as to the merits of the

cause except as permitted by law ….” In general, the rule prohibits a lawyer from

communicating with a judge outside the presence of opposing parties in litigation (or

their counsel), without their knowledge or consent. See generally, American Bar

Association, Center for Professional Responsibility, Annotated Model Rules of

Professional Responsibility (4th ed. 1999), at pp. 343-45 (hereinafter cited as Annotated

Model Rules). The interrelated purposes of the rule are to safeguard the integrity of the

judicial system and to assure that each litigant receives a fair, unbiased hearing. Id. See

also, American Law Institute, Restatement (Third) of the Law Governing Lawyers § 113,

comment b.


Rule 3.5 imposes a constraint upon lawyers that appears to be parallel to the

constraint imposed upon judges by Canon 3(B)(7) of the Kentucky Rules of Judicial

Conduct (S.C.R. 4.300). The canon provides, in pertinent part, as follows:

[A] judge shall not initiate, permit, or consider ex parte communications

with attorneys and shall not initiate, encourage or consider ex parte

communications with parties, except that:

(a) Where circumstances require, ex parte communications for

scheduling, initial fixing of bail, administrative purposes or emergencies

that do not deal with substantive matters or issues on the merits are

authorized; provided

(i) the judge reasonably believes that no party will gain a procedural or

tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the

substance of the ex parte communication and allows an opportunity to


Canon 3(B)(7) is, of course, subject to interpretation by the Judicial Ethics

Committee under S.C.R. 4.310, and nothing in our opinion is binding upon that body or

upon Kentucky’s judges. The canon is noted here, however, because it helps explain the

importance and function of Rule 3.5. By preventing lawyers from exposing judges to

improper ex parte communications, Rule 3.5 gives prophylactic support to the canon.

The relationship between the rule and the canon is further strengthened by Rule 8.3(e),

which makes it unprofessional misconduct for a lawyer to “[k]nowingly assist a judge or

judicial officer in conduct that is a violation of the applicable Rules [sic] of Judicial

Conduct or other law.”

Of course, not all ex parte communications offend Rule 3.5. There are two

exceptions. First, as both the rule and the canon recognize, a communication is not

prohibited if it is specifically permitted by law. Second, if the subject matter of a

communication is unrelated to, and remote from, any matter pending or impending before

a judge, it is deemed to fall outside Rule 3.5. Annotated Model Rules at 349. This

second exception turns on “whether a communication has the possibility or appearance of

influencing the outcome of a case.” Id. The test is an objective one; the rule applies

regardless of whether a lawyer intends to influence an outcome. The rule also applies (a)

regardless of whether the lawyer subjectively believes the communication would not put

any litigant at a disadvantage, see, e.g., In re Bemis, 938 P.2d 1120 (Ariz. 1997); (b)

regardless of whether the subject matter of the potentially outcome-influencing

communication is substantive or procedural, see Philadelphia Bar Association

Professional Guidance Committee, Opinion No. 98-14 (1999); (c) regardless of whether

the lawyer represents a party in the potentially affected case, see, e.g., Florida Bar v.

Saphirstein, 376 So.2d 7 (1979) (decided under prior Code of Professional

Responsibility); and (d) regardless whether the communication is initiated by the lawyer

or a judge. See, Annotated Model Rules at 343-44, and Michigan Standing Committee on

Professional and Judicial Ethics, Opinion No. RI-243 (1995) (observing that lawyer and

judge have “reciprocal” duties to refrain from improper ex parte communications).

Similarly, Canon 3(B)(7) imposes a broad prohibition against ex parte communications,

allowing exceptions only if the judge “reasonably” believes that “no party will gain a

procedural or tactical advantage.”

Interpreted consistently with Canon 3(B)(7), Rule 3.5 allows an ex parte

communication if it merely concerns the scheduling of a hearing or trial, or relates to

some other administrative matter unlikely to influence the outcome of a particular case –

although, even in such a case, the lawyer should make reasonable efforts to notify other

counsel. See North Carolina State Bar Ethics Opinion No. 3 [1993].) Conversely,

however, if a communication deals with an issue likely to influence the outcome of a

case, the communication is prohibited if undertaken ex parte. This fundamental principle

ordinarily is applied to communications between a lawyer and a single judge in a pending

case; but the principle logically applies as well to communications by a lawyer or group

of lawyers with several judges concerning issues likely to influence outcomes in cases

pending or impending before them.

This principle is not avoided by simply labeling such communications as

“meetings” or other gatherings. Although a lawyer’s presentation during a continuing

legal education seminar is generally not considered to be outcome-influencing, even if

judges are in attendance, see, e.g., Michigan Standing Committee on Professional and

Judicial Ethics, Opinion No. JI-84 (1994), a “training seminar” on DUI cases, prepared

and presented by a county attorney specifically for the judges of that county, has been

found to constitute an improper ex parte communication. See New York Advisory

Committee on Judicial Ethics, Opinion No. 87-28 (1988) (expressing “apprehensions”

that the prosecutor’s “educational” presentations on scientific evidence and sentencing

recommendations could produce a “partisan conditioning” of the judges – including, but

not limited to, part-time lay judges — in future cases). Such an in-house “seminar,”

transparently designed to influence outcomes of certain kinds of cases in the jurisdiction,

is easily distinguished from regular or recurrent training and professional education

programs that are not directed toward outcomes in pending or impending cases.

Accordingly, the Committee concludes that a meeting of the kind described at the

outset of this opinion – where prosecutors seek to develop informal polices or shared

understandings with judges of their jurisdiction regarding the admissibility of certain

types of evidence, the timing for introduction of certain evidence, the disallowance of

certain pleas, the selection of sentencing or other dispository alternatives, and the

consideration of methods for dealing with certain conduct of defense counsel — constitute

ex parte communications under Rule 3.5. The issues are likely to influence outcomes in

pending and future cases in the jurisdiction. The fact that defense counsel may be invited

to such a meeting does not, in our view, alter the ex parte character of the

communications during the meeting. Not all of a county’s defense bar is likely to attend

such a meeting. Moreover, defense counsel in impending cases might come from any

county or any state, and it could hardly be argued that they had a voice in — or that they

should be charged with knowledge of — any informal policies or shared understandings

generated in their absence.


Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the

Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530

(or its predecessor rule). Note that the Rule provides: “Both informal and formal

opinions shall be advisory only; however, no attorney shall be disciplined for any

professional act on his part performed in compliance with an opinion furnished to him on

his petition, provided his petition clearly, fairly, accurately and completely states his

contemplated professional act.”


Wednesday, April 20th, 2011

Kentucky Retirement System Board targets greater transparency

The shift follows recent personnel changes

By Timothy Inklebarger

The $13.9 billion Kentucky Retirement Systems, Frankfort, is headed in a new direction designed to increase transparency.

The change follows the recent termination of Robert M. Burnside, executive director, and the ousting of Randy Overstreet from his position as chairman of the board of trustees.

Incoming Chairwoman Jennifer L. Elliott, an attorney and current board member, said in a telephone interview that the system is establishing an ad-hoc legal compliance and governance committee; making available the salaries of all KRS employees; making the system’s website easier to navigate; and reviewing various policies systemwide.

“If there are problems, we need to proactively look for them and solve them, and that’s what I intend to do as chair,” she said.

Mr. Overstreet, who remains on the board, said in a telephone interview that he was always transparent during his 12 years as chairman and that Mr. Burnside was fired without cause. Mr. Overstreet said he is concerned about the future of the system.

The nine-member board, at its monthly board meeting on April 7, voted 5-4 to terminate Mr. Burnside and 5-3 to replace Mr. Overstreet as chairman.

Trustee Christopher Tobe said in a telephone interview that his votes to replace Messrs. Overstreet and Burnside were largely due to his inquiry in spring 2009 about whether the system was using placement agents and, if so, to what extent.

He said the system’s internal auditor revealed to the system’s audit committee in early 2010 that the fund was using placement agents, but the amount paid to placement agents was not disclosed until the audit was released in July. Mr. Tobe said he believes Mr. Burnside was aware of the amounts earlier than he revealed and the audit was a “delaying tactic.”

“They knew if they told me that I would make it public,” Mr. Tobe said.

The internal audit revealed that from 2004 to 2009, the system paid about $15 million in fees to placement agents. The audit also noted that roughly $6 million in fees went to Glen Sergeon, a former colleague of then-Chief Investment Officer Adam Tosh. Messrs. Tosh and Sergeon previously worked on a global emerging markets strategy at the $25.5 billion Pennsylvania State Employees’ Retirement System, Harrisburg.

Mr. Tosh left the Kentucky fund last July to become managing director, investment solutions, at Rogerscasey. The internal audit cleared Mr. Tosh and the system of any wrongdoing.

The Securities and Exchange Commission launched an “informal inquiry” into the Kentucky fund last September. A month later, Crit Luallen, state auditor, began a review of the system’s use of placement agents, as well as “various KRS policies, internal controls, and other aspects of the KRS operation,” according to a letter Ms. Luallen sent to the retirement system.

Both investigations are ongoing.

Public battle

The battle over control of the board has not stayed in the board room. Disgruntled board members have criticized Mr. Overstreet in local newspapers and elsewhere over the system’s internal audit.

In October, Ms. Elliott told the Lexington Herald-Leader that “not all board members are given the same level of access to the information we need to perform our fiduciary duties. There aren’t enough checks and balances on Randy Overstreet, who has been chairman of the board for at least 12 years.”

Mr. Overstreet said he, like other board members, was unaware that placement agents were being used and to what extent.

He also said board members should have been aware of the audit. “Some board members said they were not aware an audit was being conducted; they were aware, maybe they just weren’t paying attention,” he said. “As far as issues with the way the board was being conducted, no one ever voiced any concerns.”

Mr. Burnside could not be reached for comment.

Board members also voiced displeasure with Mr. Burnside over a recent bill in the Kentucky General Assembly that would have banned the pension fund’s use of placement agents and established term limits for sitting board members.

The Kentucky General Assembly approved a bill in 2008 by state Rep. Mike Cherry that established term limits for board members. But a subsequent opinion from the state attorney general determined the term limits did not apply to trustees who were active before the bill was passed, grandfathering in sitting board members.

Mr. Cherry said his intent was for term limits to apply to sitting board members as well and he introduced a second bill earlier this year to make the term limits apply to them.

Mr. Cherry said in a telephone interview that in February, Mr. Burnside encouraged him to drop the provision that would have applied term limits to sitting trustees.

“I agreed to wait until Auditor Luallen finished the state audit (to advance the term limits),” Mr. Cherry said. “The placement officers was my biggest issue at the time.”

Some board members supported both parts of the proposal, which did not pass.

“Mr. Burnside said after the fact that he encouraged (Mr. Cherry) to pull the term limits out of the bill,” said a source close to the board, who asked not to be identified. “At a minimum, he should have been neutral or silent.”

Mr. Burnside made it clear to Mr. Cherry that he was not speaking on behalf of the board, Mr. Overstreet said.

Mr. Overstreet said the board had “no basis” to terminate Mr. Burnside. Mr. Overstreet, who has served on the board for 14 years, said he personally has no objection to term limits.

Further strains

Relations between some board members and Mr. Burnside were further strained earlier this year when the system was ordered by state Attorney General Jack Conway to release the salaries of employees of the pension fund.

A source said board members were angered by a decision by Schuyler Olt, general counsel to the system who worked closely with Mr. Burnside, to decline to release the staff salaries to the public.

Board members were not aware of the request for salary information until Mr. Conway said in a March 31 opinion that denying the request violated the state’s Open Records Act.

The board, following the decision to remove Messrs. Burnside and Overstreet, voted on April 7 to make staff salaries public and to post them on the fund’s website.

Ms. Elliott said the board also is working to make the system more transparent.

She said she has established a temporary ad-hoc legal, compliance and governance committee. She said the committee will oversee legal and compliance issues associated with the system and make recommendations to the full board for the amendment and development of new governance policies. The committee also will evaluate reports issued to KRS by state and federal agencies and make recommendations to the board.

Ms. Elliott said she hopes to make the ad-hoc committee a permanent part of the KRS system.

“The compliance piece is important from my perspective because I think historically it has not been clear that the standing audit committee of the board has been responsible for compliance issues,” Ms. Elliott said. “Therefore, at least on a temporary basis, I think it’s important to establish a committee that has that responsibility.”

She said the legal portion of the ad-hoc committee will require the system’s legal counsel, Mr. Olt, to report to the committee.

The system also is redesigning its website to add a transparency page that will include the salary information along with investment policies, annual financial reports, audits and open-record information, Ms. Elliott said. She said the information was available previously, but was difficult for participants to find.

The board also will review the system’s various policies in an effort to improve transparency, she said.

Meanwhile, Mr. Overstreet said he believes the trustees who voted him out as chairman “just want to create problems, rather than solve problems.”

“I think anybody that’s a member of the system should be concerned about the direction this seems to be heading,” he said.


Sunday, April 17th, 2011

 In Kentucky there is a conflict between traditional Constitutional Rights and the Power of the Kentucky Supreme Court.  Nowhere is this conflict more evident than in the regulation of the speech of lawyers by the Ky. Supreme  Court.

This article attempts to discuss the basis for traditional constitutional free speech rights which apply to citizens and lawyers.  It reveals how the Ky. Supreme Court has adopted a rule that limits free speech of lawyers which is contrary to the Federal and State constitutions and an act of the legislature..



First Amendment – Religion and Expression

Amendment Text

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”



Section 8 – Kentucky ConstitutionFREEDOM OF SPEECH AND OF THE PRESS.


“Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof.


Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.”

Text as Ratified on: August 3, 1891, and revised September 28, 1891. – History: Not yet amended.

Section 1 – Kentucky Constitution

“Rights of life, liberty, worship, pursuit of safety and happiness, FREE SPEECH, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.”

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

Fourth: The right of freely communicating their thoughts and opinions.”

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.


KRS 432.240 – No contempt for criticism out of court.

“No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”


KENTUCKY SUPREME COURT BY ADMINISTRATIVE RULE  ADOPTED SCR 3.130 (8.2)(a) which limits the free speech rights of lawyers .

   This Supreme Court Rule limits the right of an attorney to bring into question the integrity or qualifications of a judicial officer, prosecutor, adjudicatory official or public defender. But in the Berry case it was broadly applied to sanction mere criticism of members of the Legislative Ethics Commission, a creature of the legislature.

“ SCR 3.130 8.2(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

    It appears that the Ky. Supreme Court has overruled the specific language of  Kentucky and Federal Constitutions by adopting a limitation of Free Speech rights.

 This was not done under their Constitutional power to decide cases and controversies, but was done under the authority of its rule making power and right to regulate the Bar Association.

Supreme Court Rule (SCR 3.139(8.2)(a)  limits the free speech rights of lawyers and is in direct conflict with the language of a statute the legislature adopted  KRS 432.240. 

 The legislature has protected criticism of a court or judge if the statement or writing is made outside the presence of the court or judge.

To be a violation of statutory law the offending speech must be  ”in the presence of the court or judge in the courthouse during the sitting of the court.”

    The Kentucky Supreme Court has ignored the Federal Constitution and the Kentucky Constitution, and the Kentucky legislature by writing a Rule that limits Free Speech which is otherwise clearly protected in the Federal and State constitutions.  

The jurisdiction of the Kentucky Supreme court to issue rules such as SCR 3.130 (8.2)(a) is found in Sections 110 and 115 of the judicial article adopted in 1976 which states:

Kentucky Constitution  – Section 110

Composition — Jurisdiction — Quorum — Special justices — Districts — Chief

“(1) The Supreme Court shall consist of the Chief Justice of the Commonwealth and six associate Justices.

(2) (a) The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.”

Text as Ratified on: November 4, 1975, effective January 1, 1976

Ky. Constitution Section 116

Rules governing jurisdiction, personnel, procedure, bar membership.

The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar.”

Text as Ratified on: November 4, 1975, effective January 1, 1976


    The argument could be made that the specific protections of the Kentucky Constitution Section 1 and Section 8, regarding Free Speech, should be interpreted to restrict the ability of the Ky. Supreme Court to adopted a Rule in direct conflict with the Kentucky Constitution sections 1 and 8.


U.S. District Judge Danny Reeves recently rejected a claim by attorney John M. Berry, Jr. and The ACLU which challenged SCR 3.130 (8.2(a) as applied to a letter Berry wrote to the Legislative Ethics Commission by attorney Berry.  Berry’s letter was not profane, made no threats, and merely set out a legal argument that the Legislative Ethics Commission had misinterpreted the law.

The Bar has not cited any statement in the Berry letter that was “false” or which questioned the “integrity” or “qualifications for office” of a judge or public legal officer.  In other words, the ethics prosecution against Berry was based on his letter and apparently  became actionable by the KBA since it was critical of the ruling.

The Berry Federal Claim was brought under  the Federal Civil Rights Act 42 U.S.C. 1983 since it violated the constitutional rights of Berry and denied him due process of law.

Judge Reeves ruled that the Federal Courts do not have jurisdiction to review actions of the state bar associations.   Judge Reeves acknowledged that Berry was not provided any right to appeal a finding against him by the Inquiry Commission of the KBA.  However, Judge Reeves held that SCR 3.130 (8.2)(a) served a state interest in regulating the conduct of lawyers, and that even though the rule infringed on constitutional speech, he concluded the statement was “reckless” it didn’t matter that the statement was true.

The ruling of Judge Reeves clearly says a statement made by a lawyer which is “true” but “reckless” is a proper violation of SCR 3.130 (8.2(a).  He did not define how a letter comes to be found to be “reckless”.

We are advised that an appeal of the Berry/ACLU case to the Sixth Circuit Court of Appeals is likely.

The lack of Federal jurisdiction ruling is very interesting.  It appears to conflict with numerous rulings by Federal Courts regarding Bar Rules. 

Some cases in which Federal Courts have ruled on state bar rules:

Shapero v.Kentucky Bar Assn., 486 U.S. 466 (1988) (Set aside KBA Advertising Rules)

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

”But United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”

Nicholson v. Shafe, 558 F.3d 1266 (11th Cir., 2009)

The Supreme Court drew a distinction between general challenges to the constitutionality of state bar rules and challenges to state court decisions in particular cases that raise federal constitutional questions, finding that a federal district court has jurisdiction to consider the former but not the latter. Id. at 485-86, 103 S.Ct. 1303.

In other words, the Supreme Court determined that the federal district court had jurisdiction to consider the general attack on the constitutionality of the d.c. bar rule requiring graduation from an accredited law school but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions.” Id. at 486-87, 103 S.Ct. 1303

“[s]ince Feldman, [the Supreme Court] has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.” Exxon Mobil, 544 U.S. at 287, 125 S.Ct. 1517.

Mothershed v. Justices of the Supreme Court, No. 03-16878 (Fed. 9th Cir. 6/6/2005) (Fed. 9th Cir., 2005)  

“United States district courts . . . have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state court judgment in a particular case.”







Sunday, April 17th, 2011

“…at the beginning of a court session about 65 percent of the rulings tended to be in favor of the prisoner, but the chance of a favorable ruling declined to near zero by the end of the session.”


April 12, 2011


AP- Washington — If you have to face a judge, try for first thing in the morning or right after lunch. A new study suggests that’s when they’re most lenient.

Seeking to test the idea that justice depends on “what the judge ate for breakfast,” researchers studied 1,112 rulings by Israeli judges who were presiding over boards deciding whether to grant parole to prisoners.

“We find that the likelihood of a favorable ruling is greater at the very beginning of the work day or after a food break than later in the sequence of cases,” the researchers report in today’s edition of Proceedings of the National Academy of Sciences.

They found that at the beginning of a court session about 65 percent of the rulings tended to be in favor of the prisoner, but the chance of a favorable ruling declined to near zero by the end of the session. After a break for a meal, favorable rulings for the prisoners jumped back up to about 65 percent, and then began declining again.

And the pattern held true for each of the eight judges observed over 50 days, they noted.

“You’re always surprised when you find effects where you don’t want to find them,” Jonathan Levav of Columbia University said in a telephone interview. “If you’re a social scientist it gets you excited. But, as an ordinary citizen, you don’t want to find this.”

When people are making a lot of decisions in a row, they look for ways to simplify the process when they get mentally tired, he said, and the easiest thing is to maintain the status quo — that is, leave the prisoner in jail.

The researchers found the rulings didn’t tend to be affected by the severity of the crime, the prison time served or the prisoner’s gender or ethnicity. Prisoners in rehabilitation programs were more likely to get parole, and those who were repeat offenders were less likely.

Each judge took two breaks. One at mid-morning beginning as early as 9:45 a.m. or as late as 10:30 a.m., and a lunch break that began between 12:45 p.m. and 2:10 p.m.

Levav, a professor of business, said the study was part of research on the process of sequential decision-making. His co-authors are from Ben Gurion University of the Negev in Israel.

The researchers said they suspect people would also seek ways to simplify matters when facing a series of decisions in legislative, medical, financial and other situations.

  1. Study shows judges more lenient after breaks for food /

Apr 12, 2011 Seeking to test the idea that justice depends on “what the judge ate for breakfast,” researchers studied 1112 rulings by Israeli judges who…/study-shows-judges-more-lenient-after-breaks-food/Cached


Wednesday, April 13th, 2011

By LawReader Senior Editor Stan Billingsley      April 13, 2011

On April 12, 2011, U.S. Federal Judge Danny Reeves ruled that under the Rooker-Feldman doctrine that Federal Courts have no jurisdiction to review the constitutionality of state bar rules.   See Judge Reeves ruling: John Berry Federal Court of Appeals Case

This ruling if affirmed would mean that the only recourse for attorney John M. Berry Jr. and other attorneys who may be charged with an ethical violation for expressing their opinions, is to focus their attention on the Kentucky Supreme Court and seek a revision of the applicable rule  SCR 3.130 (8.2)(a) as applied by the KBA Inquiry Commission.

When the KBA Inquiry Commission sanctioned Berry with a Warning Letter they established a principal that an attorney may not write or speak about a ruling by a
“Judge or public legal officer” without risk of being charged with an ethical violation.

SCR 3.130 (2)  says that an attorney may not make a “false” statement questioning the “integrity” or “qualifications for office” of a member of the protected class.

Nowhere in the pleadings filed against Berry did the KBA express just what it was that Berry said that was false. The Berry letter to the Legislative Ethics Commission made no statement that questioned the “integrity” or “qualifications for office” of any judge or member of the Legislative Ethics Commission.


 The Federal Court ruling appears to conflict with a ruling of the U.S. Supreme Court in the Feldman case

. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

” …United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”

Further the Sixth Circuit Court of Appeals has held:

Fieger v. Michigan Supreme Court, 553 F.3d 955 (6th Cir., 2009) While litigation based on hypotheticals is disfavored, it is allowed under certain circumstances in the First Amendment context. Broadrick, 413 U.S. at 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). “Litigants … are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id.”

The Eleventh Circuit Court of Appeals:

NICHOLSON V. SHAFE, 558 F.3d 1266 (11th Cir., 2009)

“The Supreme Court drew a distinction between general challenges to the constitutionality of state bar rules and challenges to state court decisions in particular cases that raise federal constitutional questions, finding that a federal district court has jurisdiction to consider the former but not the latter. Id. at 485-86, 103 S.Ct. 1303.

In other words, the Supreme Court determined that THE FEDERAL DISTRICT COURT HAD JURISDICTION TO CONSIDER THE GENERAL ATTACK ON THE CONSTITUTIONALITY OF THE D.C. BAR RULE REQUIRING GRADUATION FROM AN ACCREDITED LAW SCHOOL but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions.” Id. at 486-87, 103 S.Ct. 1303.”


Unless Judge Reeves ruling is reversed by the Sixth Circuit Court of Appeals, it will be the end of the matter. The ruling by Judge Reeves (if upheld) leaves Berry without any right to appeal the ruling of the Inquiry Commission.

(A full discussion of that ruling is posted on in the News Section.) 

The Federal Court ruling acknowledged that Berry was not entitled to a state appeal from the action of the KBA Inquiry Commission.  This situation appears to violate the Kentucky Constitution since Berry was denied the right to appeal the ruling of the Inquiry Commission.

See Section 115  of Kentucky Constitution:

Right of appeal — Procedure. In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Text as Ratified on: November 4, 1975, effective January 1, 1976.

 We note that the Supreme Court Rules denominates an ethics prosecution as a civil case.    

This case has caught the attention of many lawyers across the state. This author has received many phone calls, e-mails and comments from lawyers and judges across the state.  John Berry Jr. likewise has been contacted by lawyers and legislators who believe that lawyers should have the right of free speech.

If the Sixth Circuit Court of Appeals does not reverse the District Court ruling, then the Kentucky Supreme Court will be the last body that can do anything about this situation.

The Supreme Court wrote SCR 3.130 (8.2) and they can fix it.  They have the power to change the Supreme Court Rules at will.   They will certainly be called on to add language to this rule which limits its application to those situations where an attorney makes a  false statement about a judge or public legal officer with the intent to affect the outcome of a pending case.   Prosecutors who hold press conferences with the intent to affect the outcome of pending cases will probably protest.  

The rule as applied allows the KBA Bar Counsel to investigate and prosecute any attorney who makes a statement with which they disagree. They prosecuted Berry without ever proving the falseness of any statement in his letter. They prosecuted Berry without ever pointing out any language that questioned the integrity or qualifications for office of any member of the Legislative Ethics Commission. They prosecuted Berry in such a way that he had no right to appeal their ruling.   We invite the reader to read the full text of Berry’s letter and point out to us any “false” statement about the “Integrity” or “qualifications for office” of any protected class member.

If our calculation is correct, the next Supreme Court election will be in 2012 for the Seventh Supreme Court District, and in 2014 for several other Supreme Court Districts.  The elections are staggered so the full court is not up for election at the same time.

We can envision a situation where candidates for the Supreme Court will be questioned by voters (and by lawyers) about their position on the current language in SCR 3.130 (8.2).  

Such questions may be:

Will they change this rule to allow an appeal in all cases?

Will they change this rule to clarify what the term “public legal officer” means?

Will they limit the application of SCR 3.130 (8.2) to pending cases?

Will they give an attorney the right to be present at the Inquiry Commission hearing?

Will they establish a definition for the rule which says that all Ethics prosecutions be conducted “promptly”?   There is currently no Speedy Trial rule, and the Bar Counsel prosecutions can linger for years.

Will they establish a statute of limitations for ethics prosecutions?   Under the current rule the KBA can prosecute a lawyer for an act committed 50 years or more in the past.

No candidate is required by law to answer any of these questions.  However the Federal Courts have voided the Ethic rules applying to judges which have been interpreted in the past to prohibit a judge from making a statement about his future position on an issue.

We have added comments from two Federal Rulings which allow a judicial candidate to announce his position on issues.   These rulings have been specifically applied to Kentucky judicial elections.  See these case citations and comments below.

The bottom line is that many attorneys and judges feel that the conduct of the KBA in the Berry case is troubling.   The position of the KBA Bar Counsel and Inquiry Commission that they can sanction an attorney for writing a letter questioning the legal reasoning  in a case after it has been finalized is in our opinion an unconstitutional violation of a lawyers First Amendment rights.

The chickens have come home to roost, the Kentucky Supreme Court has written a rule that allows a sanction to be brought against an attorney in a situation where he is never confronted by his accuser, never given a hearing at which he can appear, and is denied the one appeal he is guaranteed by Section 115 of the Kentucky Constitution.

Don’t be surprised if candidates for the Kentucky Supreme Court are questioned about their willingness to deal with the problems raised by the prosecution of John M. Berry Jr.

These candidates can no longer hide behind the Judicial Code of Conduct  which used to provide them cover from tough questions.









388 F.3d 224

FAMILY TRUST FOUNDATION OF KENTUCKY, INC., et al., Plaintiffs-Appellees,

United States Court of Appeals, Sixth Circuit.

October 27, 2004.

        James Bopp, Jr., Thomas J. Marzen, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellees.

        Leroy A. Gilbert, Jr., Corbin, KY, George F. Rabe, Lexington, KY, Michael W. Hawkins, Dinsmore & Shohl, Cincinnati, OH, for Defendants-Appellants.

        Before: MARTIN and BATCHELDER, Circuit Judges; JORDAN, District Judge.*

        BATCHELDER, Circuit Judge.

        Appellants, which include members of the Kentucky Judicial Conduct Commission (“KJCC”), the Kentucky Inquiry Commission, and various counsel for the Kentucky Bar Association sued in their official capacities,1 filed an Emergency Motion to Stay the district court’s October 19, 2004, order enjoining enforcement of Rule of the Supreme Court of Kentucky (SCR) 4.300, Canon 5B(1)(c). Because we find that the Appellants have failed to meet the

Page 227

standard for a stay, the motion is hereby DENIED.


        At issue in this case is the district court’s injunction prohibiting enforcement of SCR 4.300, which reads in relevant part:

        A judge or a candidate for election to judicial office … shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; and shall not misrepresent any candidate’s identity, qualifications, present position, or other facts.

        SCR 4.300, Canon 5B(1)(c). In considering whether to grant a stay pending appeal, this court applies the traditional four-part injunctive-relief test, which asks:

        (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies.

        Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir.2002) (citing Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir.2001) (order); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). In applying this test, we balance the factors. The Appellant must demonstrate a likelihood of success on the merits to a degree inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. “[I]n order to justify a stay of the district court’s ruling, the [Appellant] must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted.” Id. (citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985)). We conclude that the Appellants have failed to meet their burden on any of the four elements.

        First, the Appellants have not demonstrated a substantial likelihood of success on the merits. The district court noted that the “promises and commit” clause in Canon 5B(1)(c) has been used by the State to reach content covered by the “announce clause” struck down in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)-that is, the State has used Canon 5B(1)(c) to prohibit a candidate from expressing “views on any specific nonfanciful legal question within the province of the court for which he is running ….” Id. at 773, 122 S.Ct. 2528; see, e.g., Deters v. Judicial Retirement and Removal Comm’n, 873 S.W.2d 200 (Ky.1994) (upholding public censure against judicial candidate for running an advertisement stating that he was a “Pro-Life” candidate in violation of Canon 5B(1)(c)).

Although the Supreme Court’s decision in White applied only to an announce clause and did not involve a promises and commit clause, the district court found that the difference in this case is simply one of a label: the State has enforced the promises and commit clause as a de facto announce clause, and therefore the State is unlikely to succeed in light of the binding precedent in White.

        While the Appellants argue that Deters was decided before White and therefore should not be relied upon as a statement of Kentucky law, their statements to judicial candidates suggest a very different enforcement posture. For example, the August

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5, 2002, Memorandum of the KJCC states that “Canon 5(B)(1)(c) of the Kentucky Code of Judicial Conduct is not affected by the ruling on the Minnesota canon, and remains effective as promulgated by the Supreme Court of Kentucky.”

And tellingly, a letter sent by Chief Justice Lambert to judicial candidates concerning the requirements of SCR 4.300 specifically referenced Deters as a case with which candidates should familiarize themselves. Because these letters and Kentucky case law support the district court’s finding that Kentucky views Canon 5B(1)(c) as the functional equivalent of an announce clause, the Appellants have failed to show a substantial likelihood of success on the merits.

        Likewise, the Appellants have failed to demonstrate irreparable harm. Indeed, Appellants’ counsel failed accurately to address the question in their briefs, focusing on whether Plaintiffs-Appellees would be irreparably harmed in the absence of the injunction, instead of answering the question before this court: whether Appellants would be irreparably harmed if this court fails to stay the injunction. Furthermore, Appellants have failed to substantiate their claim that staying the district court proceedings will not substantially injure other interested parties.

        Finally, Appellants argue that the public interest is not advanced by the injunction, which they claim “completely eviscerates Kentucky’s established mechanisms for maintaining the impartiality and independence of the Courts, both in fact and appearance.” However, the district court found that other, narrowly tailored mechanisms existed under Kentucky law to preserve the impartiality of the judiciary-namely Kentucky’s judicial recusal statute. See K.R.S. § 26A.015(2)(e) and Canon 3E(1). Additionally, the Appellants fail to address the strong public interest in the electorate’s receiving candidate statements, an interest that previously has been recognized by the Kentucky Supreme Court:

        We believe a well informed electorate is essential to the democratic election process guaranteed by the Kentucky Constitution. The right[] of the voting public to hear what a candidate has to say is a compelling one.

We further believe candidates for judicial office can announce their views on legal and political issues without jeopardizing the integrity and independence of the legal system or undermining the impartiality of the judiciary.

        J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 956 (Ky.1991)(emphasis added)(striking down Kentucky’s previous announce clause). Appellants have therefore failed to demonstrate that the public interest lies with staying the injunction.

        For the foregoing reasons, Appellants’ Motion for Emergency Stay is hereby DENIED.

        BOYCE F. MARTIN, JR., Circuit Judge, dissenting.

        In my view, the preliminary injunction issued by the district court should be stayed until the case is fully briefed and argued on expedited appeal before a panel of this Court. The defendants’ challenge to the district court’s injunction is more than sufficient to support a stay pending such appeal. Given the nature and timing of the injunction, allowing it to remain in effect would be significantly more injurious than issuing a stay. Therefore, I respectfully dissent.

536 U.S. 765


No. 01-521.

Supreme Court of the United States.

Argued March 26, 2002.

Decided June 27, 2002.


        The Minnesota Supreme Court has adopted a canon of judicial conduct that prohibits a “candidate for a judicial office” from “announc[ing] his or her views on disputed legal or political issues” (hereinafter announce clause). While running for associate justice of that court, petitioner Gregory Wersal (and others) filed this suit seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. The District Court granted respondent officials summary judgment, and the Eighth Circuit affirmed.

        Held: The announce clause violates the First Amendment. Pp. 770-788.

        (a) The record demonstrates that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions — and in the latter context as well, if he expresses the view that he is not bound by stare decisis. Pp. 770-774.

        (b) The announce clause both prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms — speech about the qualifications of candidates for public office. The Eighth Circuit concluded, and the parties do not dispute, that the proper test to be applied to determine the constitutionality of such a restriction is strict scrutiny, under which respondents have the burden to prove that the clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222. That court found that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the state judiciary’s impartiality and preserving the appearance of that impartiality. Pp. 774-775.

        (c) Under any definition of “impartiality,” the announce clause fails strict scrutiny. First, it is plain that the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the word, i. e., as a lack of bias for or against either party to the proceeding. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties,

Page 766

but rather speech for or against particular issues. Second, although “impartiality” in the sense of a lack of preconception in favor of or against a particular legal view may well be an interest served by the announce clause, pursuing this objective is not a compelling state interest, since it is virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law, see Laird v. Tatum, 409 U. S. 824, 835. Third, the Court need not decide whether achieving “impartiality” (or its appearance) in the sense of openmindedness is a compelling state interest because, as a means of pursuing this interest, the announce clause is so woefully underinclusive that the Court does not believe it was adopted for that purpose. See, e. g., City of Ladue v. Gilleo, 512 U. S. 43, 52-53. Respondents have not carried the burden imposed by strict scrutiny of establishing that statements made during an election campaign are uniquely destructive of openmindedness. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841. Pp. 775-784.

        (d) A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional, see McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 375-377. However, the practice of prohibiting speech by judicial candidates is neither ancient nor universal. The Court knows of no such prohibitions throughout the 19th and the first quarter of the 20th century, and they are still not universally adopted. This does not compare well with the traditions deemed worthy of attention in, e. g., Burson v. Freeman, 504 U. S. 191, 205-206. Pp. 785-787.

        (e) There is an obvious tension between Minnesota’s Constitution, which requires judicial elections, and the announce clause, which places most subjects of interest to the voters off limits. The First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what the elections are about. See, e. g., Renne v. Geary, 501 U. S. 312, 349. Pp. 787-788.

        247 F. 3d 854, reversed and remanded.

        SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O’CONNOR, KENNEDY, and THOMAS, JJ., joined. O’CONNOR, J., post, p. 788, and KENNEDY, J., post, p. 792, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 797. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 803.

        James Bopp, Jr., argued the cause for petitioners Republican Party of Minnesota et al. With him on the briefs were

Page 767

Thomas J. Marzen, Richard E. Coleson, and Ronald D. Rotunda. William F. Mohrman and Erick G. Kaardal filed briefs for petitioners Wersal et al.

        Alan I. Gilbert, Chief Deputy and Solicitor General of Minnesota, argued the cause for respondents. With him on the brief were Mike Hatch, Attorney General, Kristine L. Eiden, Deputy Attorney General, and Julie Ralston Aoki, Mark B. Levinger, and Thomas C. Vasaly, Assistant Attorneys General.*

Page 768

        JUSTICE SCALIA delivered the opinion of the Court.

        The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.


        Since Minnesota’s admission to the Union in 1858, the State’s Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, § 7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2, 1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a “candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the “announce clause.” Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), 11(d) (2002). Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional Conduct 8.2(b) (2002) (“A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct”). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002).

        In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal

Page 769

challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board,1 investigates and prosecutes ethical violations of lawyer candidates for judicial office. The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that, although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make.2

        Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents,3 seeking, inter alia, a

Page 770

declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. Republican Party of Minn. v. Kelly, 247 F. 3d 854 (2001). We granted certiorari. 534 U. S. 1054 (2001).


        Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002).

        We know that “announc[ing] … views” on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate’s mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called “pledges or promises” clause, which separately prohibits judicial candidates from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office,” ibid. — a prohibition that is not challenged here and on which we express no view.

Page 771

        There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that “[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense.” App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking “[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?” Ibid. It criticized a decision striking down a state law restricting welfare benefits, asserting that “[i]t’s the Legislature which should set our spending policies.” Ibid. And it criticized a decision requiring public financing of abortions for poor women as “unprecedented” and a “pro-abortion stance.” Id., at 38. Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board’s opinion in upholding the announce clause, 247 F. 3d, at 882, and the Minnesota Supreme Court recently embraced the Eighth Circuit’s interpretation, In re Code of Judicial Conduct, 639 N. W. 2d 55 (2002).

        There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. 63 F. Supp. 2d, at 986. The

Page 772

Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. 247 F. 3d, at 881-882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit’s opinion. In re Code of Judicial Conduct, supra.

        It seems to us, however, that — like the text of the announce clause itself — these limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34.4 Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the “disputed legal or political issues” raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, “[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.”

Page 773

Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 229 (CA7 1993). Third, construing the clause to allow “general” discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a “`strict constructionist.’” Tr. of Oral Arg. 29. But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a court — for example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Id., at 43. Without such application to real-life issues, all candidates can claim to be “strict constructionists” with equal (and unhelpful) plausibility.

        In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions — and in the latter context as well, if he expresses the view that he is not bound by stare decisis.5

Page 774

        Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate’s “character,” “education,” “work habits,” and “how [he] would handle administrative duties if elected.” Brief for Respondents 35-36. Indeed, the Judicial Board has printed a list of preapproved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the caseload, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Minnesota State Bar Association Judicial Elections Task Force Report & Recommendations, App. C (June 19, 1997), reprinted at App. 97-103. Whether this list of preapproved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment’s guarantee of freedom of speech is the question to which we now turn.


        As the Court of Appeals recognized, the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is “at the core of our First Amendment freedoms” — speech about the qualifications of candidates for public office. 247 F. 3d, at 861, 863. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny, id., at 864; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the announce

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clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222 (1989). In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not “unnecessarily circumscrib[e] protected expression.” Brown v. Hartlage, 456 U. S. 45, 54 (1982).

        The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary. 247 F. 3d, at 867. Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the judiciary.6 Respondents are rather vague, however, about what they mean by “impartiality.” Indeed, although the term is used throughout the Eighth Circuit’s opinion, the briefs, the Minnesota Code of Judicial Conduct, and the ABA Codes of Judicial Conduct, none of these sources bothers to define it. Clarity on this point is essential before we can decide whether impartiality is indeed a compelling state interest, and, if so, whether the announce clause is narrowly tailored to achieve it.


        One meaning of “impartiality” in the judicial context — and of course its root meaning — is the lack of bias for or against either party to the proceeding. Impartiality in this sense

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assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster’s New International Dictionary 1247 (2d ed. 1950) (defining “impartial” as “[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just”). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U. S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212, 215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133, 137-139 (1955) (judge violated due process by sitting in the criminal trial of defendant whom he had indicted).

        We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party.

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Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.7


        It is perhaps possible to use the term “impartiality” in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-JUSTICE REHNQUIST observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had

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not at least given opinions as to constitutional issues in their previous legal careers.” Laird v. Tatum, 409 U. S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” Ibid. The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, § 5 (“Judges of the supreme court, the court of appeals and the district court shall be learned in the law”). And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the “appearance” of that type of impartiality can hardly be a compelling state interest either.


        A third possible meaning of “impartiality” (again not a common one) might be described as openmindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose.

        Respondents argue that the announce clause serves the interest in openmindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with

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statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e. g., Laird, supra, at 831-833 (describing Justice Black’s participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes’s authorship of the opinion overruling Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge’s confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication — in classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this. See Minn. Code of Judicial Conduct, Canon 4(B) (2002) (“A judge may write, lecture, teach, speak and participate in other extra-judicial activities concerning the law …”); Minn. Code of Judicial Conduct, Canon 4(B), Comment. (2002) (“To the extent that time permits, a judge is encouraged to do so …”). That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here.

        The short of the matter is this: In Minnesota, a candidate for judicial office may not say “I think it is constitutional for the legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly

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(until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous. See City of Ladue v. Gilleo, 512 U. S. 43, 52-53 (1994) (noting that underinclusiveness “diminish[es] the credibility of the government’s rationale for restricting speech”); Florida Star v. B. J. F., 491 U. S. 524, 541-542 (1989) (SCALIA, J., concurring in judgment) (“[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited” (internal quotation marks and citation omitted)).

        JUSTICE STEVENS asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 801. That might be plausible, perhaps, with regard to campaign promises. A candidate who says “If elected, I will vote to uphold the legislature’s power to prohibit same-sex marriages” will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises are — by long democratic tradition — the least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign “pledges or promises,” which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. It seems to us quite likely, in fact, that in many cases the opposite is true. We doubt, for example, that a mere statement of position enunciated during the pendency of an election will be regarded by a judge as more binding — or as more likely

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to subject him to popular disfavor if reconsidered — than a carefully considered holding that the judge set forth in an earlier opinion denying some individual’s claim to justice. In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 841 (1978) (rejecting speech restriction subject to strict scrutiny where the State “offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined”); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816-825 (2000) (same).8

        Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. “[D]ebate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms,” not at the edges. Eu, 489 U. S., at 222-223 (internal quotation marks omitted). “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters

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of current public importance.” Wood v. Georgia, 370 U. S. 375, 395 (1962). “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” Brown, 456 U. S., at 60 (internal quotation marks and citation omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

        JUSTICE GINSBURG would do so — and much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. Post, at 816, 819. She reaches this conclusion because, she says, such a judge would have a “direct, personal, substantial, and pecuniary interest” in ruling consistently with his previously announced view, in order to reduce the risk that he will be “voted off the bench and thereby lose [his] salary and emoluments,” post, at 816 (internal quotation marks and alterations omitted). But elected judges — regardless of whether they have announced any views beforehand — always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as JUSTICE GINSBURG claims, it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then — quite simply — the practice of electing judges is itself a violation of due process. It is not difficult to understand how one with these views would approve the election-nullifying effect of the announce

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clause.9 They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786.

        JUSTICE GINSBURG devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.10 What we do assert, and what JUSTICE GINSBURG ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully underinclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections, supra, at 781-782, only to make the obvious point that this underinclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.11

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        But in any case, JUSTICE GINSBURG greatly exaggerates the difference between judicial and legislative elections. She asserts that “the rationale underlying unconstrained speech in elections for political office — that representative government depends on the public’s ability to choose agents who will act at its behest — does not carry over to campaigns for the bench.” Post, at 806. This complete separation of the judiciary from the enterprise of “representative government” might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to “make” common law, but they have the immense power to shape the States’ constitutions as well. See, e. g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.12

Page 785


        To sustain the announce clause, the Eighth Circuit relied heavily on the fact that a pervasive practice of prohibiting judicial candidates from discussing disputed legal and political issues developed during the last half of the 20th century. 247 F. 3d, at 879-880. It is true that a “universal and long-established” tradition of prohibiting certain conduct creates “a strong presumption” that the prohibition is constitutional: “Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 375-377 (1995) (SCALIA, J., dissenting). The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal.

        At the time of the founding, only Vermont (before it became a State) selected any of its judges by election. Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944); Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). We know of no restrictions upon statements that could be made by judicial candidates (including judges) throughout the 19th and the first quarter of the 20th century. Indeed, judicial elections were generally partisan during this period, the movement toward nonpartisan judicial elections not even beginning until the 1870′s. Id., at 176-177;

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M. Comisky & P. Patterson, The Judiciary — Selection, Compensation, Ethics, and Discipline 4, 7 (1987). Thus, not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail, but they were touting party affiliations and angling for party nominations all the while.

        The first code regulating judicial conduct was adopted by the ABA in 1924. 48 ABA Reports 74 (1923) (report of Chief Justice Taft); P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990). It contained a provision akin to the announce clause: “A candidate for judicial position … should not announce in advance his conclusions of law on disputed issues to secure class support ….” ABA Canon of Judicial Ethics 30 (1924). The States were slow to adopt the canons, however. “By the end of World War II, the canons … were binding by the bar associations or supreme courts of only eleven states.” J. MacKenzie, The Appearance of Justice 191 (1974). Even today, although a majority of States have adopted either the announce clause or its 1990 ABA successor, adoption is not unanimous. Of the 31 States that select some or all of their appellate and general-jurisdiction judges by election, see American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002), 4 have adopted no candidate-speech restriction comparable to the announce clause,13 and 1 prohibits only the discussion of “pending litigation.”14 This practice, relatively new to judicial elections and still not universally adopted, does not compare well with the traditions deemed worthy of our attention in prior cases. E. g., Burson v. Freeman, 504 U. S. 191, 205-206 (1992) (crediting tradition of prohibiting speech around

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polling places that began with the very adoption of the secret ballot in the late 19th century, and in which every State participated); id., at 214-216 (SCALIA, J., concurring in judgment) (same); McIntyre, supra, at 375-377 (SCALIA, J., dissenting) (crediting tradition of prohibiting anonymous election literature, which again began in 1890 and was universally adopted).

* * *

        There is an obvious tension between the article of Minnesota’s popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.15) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. See ABA Model Code of Judicial Conduct, Canon 5(C)(2), Comment (2000) (“[M]erit selection of judges is a preferable manner in which to select the judiciary”); An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence 96 (1997) (“The American Bar Association strongly endorses the merit selection of judges, as opposed to their election …. Five times between August 1972 and August 1984 the House of Delegates has approved recommendations stating the preference for merit selection and encouraging bar associations in jurisdictions where judges are elected … to work for the adoption of merit selection and retention”). That opposition may be well taken (it certainly had the support

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of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. “[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles.” Renne v. Geary, 501 U. S. 312, 349 (1991) (Marshall, J., dissenting); accord, Meyer v. Grant, 486 U. S. 414, 424-425 (1988) (rejecting argument that the greater power to end voter initiatives includes the lesser power to prohibit paid petition-circulators).

        The Minnesota Supreme Court’s canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion.

        It is so ordered.



* Briefs of amici curiae urging reversal were filed for the American Center for Law and Justice by Jay Alan Sekulow, James H. Henderson, Sr., Colby M. May, and Walter M. Weber; for the American Civil Liberties Union et al. by David B. Isbell, David H. Remes, and Steven R. Shapiro; for the Chamber of Commerce of the United States by Jan Witold Baran and Stephen A. Bokat; for Minnesota State Representative Philip Krinkie et al. by Raymond C. Ortman, Jr.; for Public Citizen by Allison M. Zieve, David C. Vladeck, and Scott L. Nelson; and for State Supreme Court Justices by Erik S. Jaffe.

        Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, and Manuel M. Medeiros, State Solicitor, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, John Cornyn of Texas, and Christine O. Gregoire of Washington; for the Ad hoc Committee of Former Justices and Friends Dedicated to an Independent Judiciary by S. Shawn Stephens and Andy Taylor; for the American Bar Association by Robert E. Hirshon, Reagan Wm. Simpson, and Warren S. Huang; for the Minnesota State Bar Association by Wayne D. Struble; for the Brennan Center for Justice at NYU School of Law et al. by Scott Bales and Deborah Goldberg; for the Conference of Chief Justices by Roy A. Schotland, George T. Patton, Jr., Sarah Steele Riordan, and Robert F. Bauer; for the Missouri Bar by Joseph C. Blanton, Jr.; and for Pennsylvanians for Modern Courts by Edmund B. Spaeth, Jr., and Brett G. Sweitzer.

        Briefs of amici curiae were filed for the Idaho Conservation League et al. by John D. Echeverria; and for the National Association of Criminal Defense Lawyers by David W. Ogden, Jonathan J. Frankel, Neil M. Richards, and Lisa Kemler.

1. The Eighth Circuit did not parse out the separate functions of these two entities in the case at hand, referring to the two of them collectively as the “Lawyers Board.” We take the same approach.

2. Nor did Wersal have any success receiving answers from the Lawyers Board when he included “concrete examples,” post, at 799, n. 2 (STEVENS, J., dissenting), in his request for an advisory opinion on other subjects a month later:

        ”As you are well aware, there is pending litigation over the constitutionality of certain portions of Canon 5. You are a plaintiff in this action and you have sued, among others, me as Director of the Office of Lawyers Professional Responsibility and Charles Lundberg as the Chair of the Board of Lawyers Professional Responsibility. Due to this pending litigation, I will not be answering your request for an advisory opinion at this time.” App. 153.

3. Respondents are officers of the Lawyers Board and of the Minnesota Board on Judicial Standards (Judicial Board), which enforces the ethical rules applicable to judges.

4. JUSTICE GINSBURG argues that we should ignore this concession at oral argument because it is inconsistent with the Eighth Circuit’s interpretation of the announce clause. Post, at 810 (dissenting opinion). As she appears to acknowledge, however, the Eighth Circuit was merely silent on this particular question. Ibid. Silence is hardly inconsistent with what respondents conceded at oral argument.

5. In 1990, in response to concerns that its 1972 Model Canon — which was the basis for Minnesota’s announce clause — violated the First Amendment, see L. Milord, The Development of the ABA Judicial Code 50 (1992), the ABA replaced that canon with a provision that prohibits a judicial candidate 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.” ABA Model Code of Judicial Conduct, Canon 5(A)(3)(d)(ii) (2000). At oral argument, respondents argued that the limiting constructions placed upon Minnesota’s announce clause by the Eighth Circuit, and adopted by the Minnesota Supreme Court, render the scope of the clause no broader than the ABA’s 1990 canon. Tr. of Oral Arg. 38. This argument is somewhat curious because, based on the same constitutional concerns that had motivated the ABA, the Minnesota Supreme Court was urged to replace the announce clause with the new ABA language, but, unlike other jurisdictions, declined. Final Report of the Advisory Committee to Review the ABA Model Code of Judicial Conduct and the Rules of the Minnesota Board on Judicial Standards 5-6 (June 29, 1994), reprinted at App. 367-368. The ABA, however, agrees with respondents’ position, Brief for ABA as Amicus Curiae 5. We do not know whether the announce clause (as interpreted by state authorities) and the 1990 ABA canon are one and the same. No aspect of our constitutional analysis turns on this question.

6. Although the Eighth Circuit also referred to the compelling interest in an “independent” judiciary, 247 F. 3d, at 864-868, both it and respondents appear to use that term, as applied to the issues involved in this case, as interchangeable with “impartial.” See id., at 864 (describing a judge’s independence as his “ability to apply the law neutrally”); Brief for Respondents 20, n. 4 (“[J]udicial impartiality is linked to judicial independence”).

7. JUSTICE STEVENS asserts that the announce clause “serves the State’s interest in maintaining both the appearance of this form of impartiality and its actuality.” Post, at 801. We do not disagree. Some of the speech prohibited by the announce clause may well exhibit a bias against parties — including JUSTICE STEVENS’ example of an election speech stressing the candidate’s unbroken record of affirming convictions for rape, ante, at 800-801. That is why we are careful to say that the announce clause is “barely tailored to serve that interest,” supra, at 776 (emphasis added). The question under our strict scrutiny test, however, is not whether the announce clause serves this interest at all, but whether it is narrowly tailored to serve this interest. It is not.

8. We do not agree with JUSTICE STEVENS’s broad assertion that “to the extent that [statements on legal issues] seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack of fitness for office.Post, at 798 (emphasis added). Of course all statements on real-world legal issues “indicate” how the speaker would rule “in specific cases.” And if making such statements (of honestly held views) with the hope of enhancing one’s chances with the electorate displayed a lack of fitness for office, so would similarly motivated honest statements of judicial candidates made with the hope of enhancing their chances of confirmation by the Senate, or indeed of appointment by the President. Since such statements are made, we think, in every confirmation hearing, JUSTICE STEVENS must contemplate a federal bench filled with the unfit.

9. JUSTICE GINSBURG argues that the announce clause is not election nullifying because Wersal criticized past decisions of the Minnesota Supreme Court in his campaign literature and the Lawyers Board decided not to discipline him for doing so. Post, at 811-812. As we have explained, however, had Wersal additionally stated during his campaign that he did not feel bound to follow those erroneous decisions, he would not have been so lucky. Supra, at 772-773. This predicament hardly reflects “the robust communication of ideas and views from judicial candidate to voter.” Post, at 812.

10. JUSTICE STEVENS devotes most of his dissent to this same argument that we do not make.

11. Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues. Thus, JUSTICE GINSBURG’s repeated invocation of instances in which nominees to this Court declined to announce such views during Senate confirmation hearings is pointless. Post, at 807-808, n. 1, 818-819, n. 4. That the practice of voluntarily demurring does not establish the legitimacy of legal compulsion to demur is amply demonstrated by the unredacted text of the sentence she quotes in part, post, at 819, from Laird v. Tatum, 409 U. S. 824, 836, n. 5 (1972): “In terms of propriety, rather than disqualification, I would distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench.” (Emphasis added.)

12. Although JUSTICE STEVENS at times appears to agree with JUSTICE GINSBURG’s premise that the judiciary is completely separated from the enterprise of representative government, post, at 798 (“[E]very good judge is fully aware of the distinction between the law and a personal point of view”), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, ante, at 799 (“If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls”); post, at 799, n. 2. Even if the policymaking capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. “[I]f announcing one’s views in the context of a campaign for the State Supreme Court might be” protected speech, ibid., then — even if announcing one’s views in the context of a campaign for a lower court were not protected speech, ibid. — the announce clause would not be narrowly tailored, since it applies to high-and low-court candidates alike. In fact, however, the judges of inferior courts often “make law,” since the precedent of the highest court does not cover every situation, and not every case is reviewed. JUSTICE STEVENS has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e. g., Reves v. Ernst & Young, 494 U. S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U. S. 350, 376-377 (1987) (dissenting opinion).

13. Idaho Code of Judicial Conduct, Canon 7 (2001); Mich. Code of Judicial Conduct, Canon 7 (2002); N. C. Code of Judicial Conduct, Canon 7 (2001); Ore. Code of Judicial Conduct, Rule 4-102 (2002). All of these States save Idaho have adopted the pledges or promises clause.

14. Ala. Canon of Judicial Ethics 7(B)(1)(c) (2002).

15. These restrictions are all contained in these States’ codes of judicial conduct, App. to Brief for ABA as Amicus Curiae. “In every state, the highest court promulgates the Code of Judicial Conduct, either by express constitutional provision, statutory authorization, broad constitutional grant, or inherent power.” In the Supreme Court of Texas: Per Curiam Opinion Concerning Amendments to Canons 5 and 6 of the Code of Judicial Conduct, 61 Tex. B. J. 64, 66 (1998) (collecting provisions).


        JUSTICE O’CONNOR, concurring.

        I join the opinion of the Court but write separately to express my concerns about judicial elections generally. Respondents claim that “[t]he Announce Clause is necessary … to protect the State’s compelling governmental interes[t] in an actual and perceived … impartial judiciary.” Brief for Respondents 8. I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest.

        We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at

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least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994) (quoting former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of visible decisions is “`like ignoring a crocodile in your bathtub’”); Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B. U. L. Rev. 759, 793-794 (1995) (citing statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty than are judges who do not run for election). Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.

        Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. See Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. Rev. Mich. State U. Detroit College of Law 849, 866 (reporting that in 2000, the 13 candidates in a partisan election for 5 seats on the Alabama Supreme Court spent an average of $1,092,076 on their campaigns); American Bar Association, Report and Recommendations of the Task Force on Lawyers’ Political Contributions, pt. 2 (July 1998) (reporting that in 1995, one candidate for the Pennsylvania Supreme Court raised $1,848,142 in campaign funds, and that in 1986, $2,700,000 was spent on the race for Chief Justice of the Ohio Supreme Court). Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of

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campaigning requires judicial candidates to engage in fund-raising. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. See Thomas, National L. J., Mar. 16, 1998, p. A8, col. 1 (reporting that a study by the public interest group Texans for Public Justice found that 40 percent of the $9,200,000 in contributions of $100 or more raised by seven of Texas’ nine Supreme Court justices for their 1994 and 1996 elections “came from parties and lawyers with cases before the court or contributors closely linked to these parties”). Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire 4 (2001) (available at http://www.justiceatstake. org/files/JASNationalSurveyResults.pdf) (describing survey results indicating that 76 percent of registered voters believe that campaign contributions influence judicial decisions); id., at 7 (describing survey results indicating that two-thirds of registered voters believe individuals and groups who give money to judicial candidates often receive favorable treatment); Barnhizer, “On the Make”: Campaign Funding and the Corrupting of the American Judiciary, 50 Cath. U. L. Rev. 361, 379 (2001) (relating anecdotes of lawyers who felt that their contributions to judicial campaigns affected their chance of success in court).

        Despite these significant problems, 39 States currently employ some form of judicial elections for their appellate courts, general jurisdiction trial courts, or both. American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002). Judicial elections were not always so prevalent. The first 29 States of the Union adopted methods for selecting judges that did not involve popular elections. See Croley, The Majoritarian Difficulty:

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Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 716 (1995). As the Court explains, however, beginning with Georgia in 1812, States began adopting systems for judicial elections. See ante, at 785. From the 1830′s until the 1850′s, as part of the Jacksonian movement toward greater popular control of public office, this trend accelerated, see Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. Miami L. Rev. 1, 5 (1994), and by the Civil War, 22 of the 34 States elected their judges, ibid. By the beginning of the 20th century, however, elected judiciaries increasingly came to be viewed as incompetent and corrupt, and criticism of partisan judicial elections mounted. Croley, supra, at 723. In 1906, Roscoe Pound gave a speech to the American Bar Association in which he claimed that “compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench.” The Causes of Popular Dissatisfaction with the Administration of Justice, 8 Baylor L. Rev. 1, 23 (1956) (reprinting Pound’s speech).

        In response to such concerns, some States adopted a modified system of judicial selection that became known as the Missouri Plan (because Missouri was the first State to adopt it for most of its judicial posts). See Croley, 62 U. Chi. L. Rev., at 724. Under the Missouri Plan, judges are appointed by a high elected official, generally from a list of nominees put together by a nonpartisan nominating commission, and then subsequently stand for unopposed retention elections in which voters are asked whether the judges should be recalled. Ibid. If a judge is recalled, the vacancy is filled through a new nomination and appointment. Ibid. This system obviously reduces threats to judicial impartiality, even if it does not eliminate all popular pressure on judges. See Grodin, Developing a Consensus of Constraint: A Judge’s Perspective on Judicial Retention Elections, 61 S. Cal. L. Rev. 1969, 1980 (1988) (admitting that he cannot be sure that his votes as a California Supreme Court Justice

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in “critical cases” during 1986 were not influenced subconsciously by his awareness that the outcomes could affect his chances in the retention elections being conducted that year). The Missouri Plan is currently used to fill at least some judicial offices in 15 States. Croley, supra, at 725-726; American Judicature Society, supra.

        Thirty-one States, however, still use popular elections to select some or all of their appellate and/or general jurisdiction trial court judges, who thereafter run for reelection periodically. Ibid. Of these, slightly more than half use nonpartisan elections, and the rest use partisan elections. Ibid. Most of the States that do not have any form of judicial elections choose judges through executive nomination and legislative confirmation. See Croley, supra, at 725.

        Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significantly restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.

        JUSTICE KENNEDY, concurring.

        I agree with the Court that Minnesota’s prohibition on judicial candidates’ announcing their legal views is an unconstitutional abridgment of the freedom of speech. There is authority for the Court to apply strict scrutiny analysis to resolve some First Amendment cases, see, e. g., Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), and the Court explains in clear and forceful terms why the Minnesota regulatory scheme fails that test. So I join its opinion.

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        I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. The speech at issue here does not come within any of the exceptions to the First Amendment recognized by the Court. “Here, a law is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent. No further inquiry is necessary to reject the State’s argument that the statute should be upheld.” Id., at 124 (KENNEDY, J., concurring in judgment). The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose.

        Here, Minnesota has sought to justify its speech restriction as one necessary to maintain the integrity of its judiciary. Nothing in the Court’s opinion should be read to cast doubt on the vital importance of this state interest. Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.

        Articulated standards of judicial conduct may advance this interest. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059 (1996). To comprehend, then to codify, the essence of judicial integrity is a hard task, however. “The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe

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the process which he had followed a thousand times and more. Nothing could be farther from the truth.” B. Cardozo, The Nature of the Judicial Process 9 (1921). Much the same can be said of explicit standards to ensure judicial integrity. To strive for judicial integrity is the work of a lifetime. That should not dissuade the profession. The difficulty of the undertaking does not mean we should refrain from the attempt. Explicit standards of judicial conduct provide essential guidance for judges in the proper discharge of their duties and the honorable conduct of their office. The legislative bodies, judicial committees, and professional associations that promulgate those standards perform a vital public service. See, e. g., Administrative Office of U. S. Courts, Code of Judicial Conduct for United States Judges (1999). Yet these standards may not be used by the State to abridge the speech of aspiring judges in a judicial campaign.

        Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of the voters, not the State. See Brown v. Hartlage, 456 U. S. 45, 60 (1982). The law in question here contradicts the principle that unabridged speech is the foundation of political freedom.

        The State of Minnesota no doubt was concerned, as many citizens and thoughtful commentators are concerned, that judicial campaigns in an age of frenetic fundraising and mass media may foster disrespect for the legal system. Indeed, from the beginning there have been those who believed that the rough-and-tumble of politics would bring our governmental institutions into ill repute. And some have sought to

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cure this tendency with governmental restrictions on political speech. See Sedition Act of 1798, ch. 74, 1 Stat. 596. Cooler heads have always recognized, however, that these measures abridge the freedom of speech — not because the state interest is insufficiently compelling, but simply because content-based restrictions on political speech are “`expressly and positively forbidden by’” the First Amendment. See New York Times Co. v. Sullivan, 376 U. S. 254, 274 (1964) (quoting the Virginia Resolutions of 1798). The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgment of speech.

        If Minnesota believes that certain sorts of candidate speech disclose flaws in the candidate’s credentials, democracy and free speech are their own correctives. The legal profession, the legal academy, the press, voluntary groups, political and civic leaders, and all interested citizens can use their own First Amendment freedoms to protest statements inconsistent with standards of judicial neutrality and judicial excellence. Indeed, if democracy is to fulfill its promise, they must do so. They must reach voters who are uninterested or uninformed or blinded by partisanship, and they must urge upon the voters a higher and better understanding of the judicial function and a stronger commitment to preserving its finest traditions. Free elections and free speech are a powerful combination: Together they may advance our understanding of the rule of law and further a commitment to its precepts.

        There is general consensus that the design of the Federal Constitution, including lifetime tenure and appointment by nomination and confirmation, has preserved the independence of the Federal Judiciary. In resolving this case, however, we should refrain from criticism of the State’s choice to use open elections to select those persons most likely to achieve judicial excellence. States are free to choose this mechanism rather than, say, appointment and confirmation.

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By condemning judicial elections across the board, we implicitly condemn countless elected state judges and without warrant. Many of them, despite the difficulties imposed by the election system, have discovered in the law the enlightenment, instruction, and inspiration that make them independent-minded and faithful jurists of real integrity. We should not, even by inadvertence, “impute to judges a lack of firmness, wisdom, or honor.” Bridges v. California, 314 U. S. 252, 273 (1941).

        These considerations serve but to reinforce the conclusion that Minnesota’s regulatory scheme is flawed. By abridging speech based on its content, Minnesota impeaches its own system of free and open elections. The State may not regulate the content of candidate speech merely because the speakers are candidates. This case does not present the question whether a State may restrict the speech of judges because they are judges — for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates. Whether the rationale of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968), and Connick v. Myers, 461 U. S. 138 (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.

        Petitioner Gregory Wersal was not a sitting judge but a challenger; he had not voluntarily entered into an employment relationship with the State or surrendered any First Amendment rights. His speech may not be controlled or abridged in this manner. Even the undoubted interest of the State in the excellence of its judiciary does not allow it to restrain candidate speech by reason of its content. Minnesota’s attempt to regulate campaign speech is impermissible.

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Federal Judge Dismisses John M. Berry Jr. Claim Against Ky. Bar Association but His ruling Limiting the Jurisdiction of the Federal Courts to review State Bar Rules, is Contrary to a Ruling of the U.S. Supreme Court

Tuesday, April 12th, 2011

By LawReader Senior Editor Stan Billingsley                 April 12, 2011

(Authors Disclaimer:  In light of the ruling discussed herein, the author states that he has made every effort to speak accurately and truthfully on this subject.  We have reviewed it for any possible challenges to the “integrity or qualifications for office” of any “Judge or public legal officer” and we find none.  While we question the legal reasoning of Federal Judge Reeves, we do not in any manner question his integrity or qualifications for office.)

On Apirl 12, 2011 U.S. District Judge Danny Reeves ruled in the Section 1983 civil rights action filed by John M. Berry Jr. and the ACLU,  against the Ky. Bar Association, that the limitations on free speech imposed by the SCR 3.130 (8.2) upon Kentucky lawyers was not within the subject-matter jurisdiction of the Federal Courts.     See Judge Reeves ruling: John Berry Federal Court of Appeals Case

(Note:  The last page of Judge Reeves ruling (page 16 of a 16 page ruling) was lost in transmission and will be posted shortly.)

We have reviewed the authorities cited by Judge Reeves. Our review suggests that the planned appeal by Berry and the ACLU to the Sixth Circuit Court of Appeals is mandated.  Rulings of  Federal Appeallate Courts and the U.S. Supreme Court appear to recognize jurisdiction of Federal Courts to hear constitutional challenges of state bar rules.

Federal Judge Danny Reeves dismissed John M. Berry, Jr.’s  challenge of  a State Bar Rule.  He concluded that his court had no subject-matter jurisdiction over State Bar Rules.

This  legal reasoning appears to be contrary to a ruling of the U.S. Supreme Court in Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)  which held:

United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.

The case of John Berry Jr. was only considered by the secretive Inquiry Commission.  Berry was not allowed to be present.  The action of the Inquiry Commission of the Ky. Bar Association was final and but was not appealable by Berry.

Judge Reeves frequently cited the 60 year old Rooker-Feldman doctrine to find that the Federal District Court had no subject-matter jurisdiction of Berry’s constitutional challenge to a Kentucky Supreme Court Rule which limits the free speech of lawyers.   The Eleventh Circuit Court of Appeals discussed the danger in extending Rooker-Feldman to exclude claims.  See discussion below.

The essential elements of the Berry case involved an interpretation of SCR 3.130 (8.2) which forbids an attorney to make “false” statements about the “integrity” or “qualifications for office” of a judge or public legal officer. 

 In 2007 John M. Berry, jr. a former State Senator and former Majority Leader of the Kentucky State Senate, wrote a letter to the Legislative Ethics Commission. 

Berry wrote about a ruling the LEC had made in dismissing a claim of improper fundraising by Senate President David Williams.  The LEC ruled that while some of Sen. Williams employees may have violated the rules, that Williams himself had not violated any ethical rule.  (Williams as Senate President appointed at least three of the board members who heard his case.)

Subsequent to the ruling of the LEC, John M. Berry Jr. wrote a letter to the LEC (after it was final and no longer “pending” ) and presented them with a legal argument which questioned their findings.  Kentucky court rulings have held that the rule cited against Berry did not apply unless the statement was made during a pending case.

 He made no threats in the letter, there was no disrespect or profanity in the letter.  We find no language in the letter which questions the integrity of anyone.


After receipt of the letter LEC member Paul Gudgel,  a former Ct. of Appeals judge, reported Berry’s letter to Linda Gosnell the KBA Bar Counsel.  As a result the Bar Counsel began an investigation of  Berry’s letter.   

The Inquiry Commission almost two years after the letter was sent, ruled that Berry had violated SCR 3.130 (8.2).   We have reviewed their findings and they don’t specifically say what it was about the Berry Letter (which is posted on LawReader) that violated SCR 3.130. 

The KBA concluded that his letter was “inappropriate”.   That is not a legal term found in the SCR.

The BAR issued an official Warning Letter and placed it in Berry’s KBA personnel file and said it would be destroyed after one year (of good conduct by Berry).  If any additional charges were brought against Berry then if the Warning Letter was still in existence, the penalty for a new charge could be enhanced.

 (Apparent  Message:  Keep quiet or we will really get you next time. Berry argued that this was a chilling effect on his First Amendment Right to Free Speech.)

Today, Judge Reeves dismissed the Federal Civil Rights action filed by Berry and the ACLU.  He found that the U.S. District Court had no jurisdiction of this First Amendment claim as it involved an ethics issue before the Bar Association.

He reasoned that the KBA Inquiry Commission was a “state court”.  He acknowledged that Berry had no right to an appeal from the findings of the Inquiry Commission.

We have read Judge Reeves ruling where he ruled that Federal Courts do not have subject matter jurisdiction over challenges to state bar rules.   Judge Reeves did not cite a contrary ruling of the United States Supreme Court issued in 1983.  The following decision seems directly contrary to Judge Reeve’s ruling.

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

” United States district courts have no jurisdiction over challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may be had only in this Court.  (Meaning the U.S. Supreme Court.)

Thus, to the extent that respondents sought review in the District Court of the District of Columbia Court of Appeals’ denials of their petitions for waiver, the District Court lacked subject-matter jurisdiction over their complaints.

 But United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”

Judge Reeves ruling has become a national news story. (We found a story about the decision in a Danbury, Connecticut  newspaper.)

Public comments by attorneys in Kentucky may be restricted as part of a general effort to uphold public confidence in the judiciary, “even if the remarks are true but considered reckless”, a federal judge ruled Tuesday.

U.S. District Judge Danny C. Reeves found that the Kentucky Supreme Court‘s regulations as enforced by the state bar association on attorney speech are constitutional.

Although the rule extends to some constitutionally protected speech — namely, reckless true statements — it does not reach a substantial number of impermissible applications,” Reeves wrote in the 16-page decision.”

“Berry, a Henry County lawyer, former state senator and brother of writer Wendell Berry, sued the Kentucky Bar Association in 2009 after receiving a letter saying he “did not adequately comply” with an ethics rule on false statements. The letter, which was kept in Berry’s file for a year, advised him to “conform your conduct to the requirements of the Rules of Professional Conduct.”

“The dispute was over Berry’s criticism of the ethics commission decision to dismiss a complaint in 2007 against Kentucky Senate President David Williams involving campaign money solicited from Frankfort lobbyist. The commission ruled Williams’ Senate aides innocently erred by asking lobbyists for up to $50,000 each at a fundraising luncheon for Senate Republicans. State law bans lobbyists from giving to state legislative campaigns.”

Berry sent a letter to the commission, then shared it with reporters, prompting a complaint by ethics commissioner and retired state Court of Appeals chief judge Paul Gudgel. Gudgel told the bar that “intentionally impugning the reputation” of a commission member “to advance his own agenda” was improper.  Apparently lawyers on the Legislative Ethics Commission were entitled to have their agenda, but a lawyer who questioned the wisdom of their ruling is not allowed to have an agenda.

One must conclude that Members of the Legislative Ethics Commission  (a creature of the Legislature) are now declared a class protected by a Rule of the Kentucky Supreme Court. 

The language of the rule applies to “judges and public legal officers”, the term “public legal officer” is not defined by the rule.  Other court decisions appear to apply this rule only to “pending cases”.  Berry’s letter was written after the conclusion of the hearings by the LEC.

After a 15-month professional conduct investigation, the bar (found Berry guilty of a violation of SCR 3.130 (8.2) and issued a Warning Letter and then dismissed Gudgel’s complaint.  This action by the KBA prevented Berry from having the right to appeal their action. 

We recall a favorite saying of the late Chief Justice Robert Stephens, who often said, “Under the new judicial article, every person has the right to at least one appeal.”   Berry was not granted the right to appeal…not even once.  This right to one appeal is found in the Ky. Constitution as Section 115.

Berry was never granted a hearing, was never was provided with all the evidence against him and never learned from the BAR who his accuser was.  Our exhaustive search of the papers has not revealed any findings of fact which explain how this rule was violated by Berry’s letter.  

He has not been told what portion of his letter was “false” or what part of his letter “questioned the integrity or qualifications for office” of a member of the protected class.  We have read the Berry letter many times looking for a false statement or a statement questioning the integrity or qualifications of any member of the Legislative Ethics Commission.  One would think that if the BAR had found a false statement in Berry’s letter that they would have pointed this out more clearly.

“On its face, the rule does not bar honest, informed criticism,” Reeves wrote. “It merely requires lawyers to speak with greater care and civility than is the norm in political debate.”  (???)

The reason cited for dismissal by Judge Reeves was that :

“Under the Rooker-Feldman doctrine, the Court lacks subject-matter jurisdiction over Berry’s as-applied challenge to Kentucky Supreme Court Rule 8.2(a). Furthermore, Berry’s facial challenge to Rule 8.2(a) fails because the rule is narrowly tailored o serve a compelling state interest.”

Reeves also found that federal courts have no jurisdiction to overturn state bar association disciplinary actions, no matter what form the discipline takes”

In 2009 the Eleventh Circuit Court of Appeals discussed the limits of the shaky old  Rooker-Feldman doctrine in the following case:

    Nicholson v. Shafe, 558 F.3d 1266 (11th Cir., 2009)This appeal calls upon us to address the scope of the Rooker-Feldman1 doctrine, which provides that “lower federal courts are precluded from exercising appellate jurisdiction over final state-court judgments.” Lance v. Dennis, 546 U.S. 459, 463, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006). The Supreme Court has only applied the Rooker-Feldman doctrine as a bar to jurisdiction on two occasions, the first instance being Rooker and the second instance being Feldman. Recently, in Exxon Mobil Corporation v. Saudi Basic Industries Corporation, 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005), the Supreme Court addressed the scope of the Rooker-Feldman doctrine, holding that it “is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517.

We review dismissals for lack of subject matter jurisdiction de novo. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir.2006).

 A. The Rooker-Feldman Doctrine

        Generally speaking, the Rooker-Feldman doctrine bars federal district courts from reviewing state court decisions.

The Supreme Court stated in Exxon Mobil that the Rooker-Feldman doctrine “has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases” and it should be “confined to cases of the kind from which the doctrine acquired its name.” Exxon Mobil, 544 U.S. at 283, 284, 125 S.Ct. 1517.

Approximately 60 years after Rooker, the Supreme Court decided Feldman. There, two disappointed applicants to the District of Columbia bar filed separate lawsuits in the United States District Court for the District of Columbia after the District of Columbia Court of Appeals refused to waive a court rule that required District of Columbia bar applicants to have graduated from an accredited law school approved by the American Bar Association. Neither plaintiff graduated from an accredited law school.

The district court determined that it lacked jurisdiction to hear their claims, but the United States Court of Appeals for the District of Columbia reversed in part, concluding that the waiver proceedings in the District of Columbia Court of Appeals were not judicial proceedings.

The Supreme Court granted certiorari.

        Having determined that the proceedings surrounding the plaintiffs’ waiver petitions in the District of Columbia Court of Appeals were judicial in nature, the Supreme Court concluded that a federal district court has “no authority to review final judgments of a state court in judicial proceedings.” Feldman, 460 U.S. at 482, 103 S.Ct. 1303. “Review of such judgments may be had only in [the United States Supreme Court].” Id.

The Supreme Court drew a distinction between general challenges to the constitutionality of state bar rules and challenges to state court decisions in particular cases that raise federal constitutional questions, finding that a federal district court has jurisdiction to consider the former but not the latter. Id. at 485-86, 103 S.Ct. 1303.

In other words, the Supreme Court determined that THE FEDERAL DISTRICT COURT HAD JURISDICTION TO CONSIDER THE GENERAL ATTACK ON THE CONSTITUTIONALITY OF THE D.C. BAR RULE REQUIRING GRADUATION FROM AN ACCREDITED LAW SCHOOL but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions.” Id. at 486-87, 103 S.Ct. 1303.

Building on this foundation, the Eleventh Circuit set forth a four-factor test to guide the application of the Rooker-Feldman doctrine, finding that it bars federal court jurisdiction where:

        (1) the party in federal court is the same as the party in state court, see Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995);

(2) the prior state court ruling was a final or conclusive judgment on the merits, see David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1332 (11th Cir.2000);

 (3) the party seeking relief in federal court had a reasonable opportunity to raise its federal claims in the state court proceeding, see Dale v. Moore, 121 F.3d 624, 626 (11th Cir.1997) (per curiam); and (4) the issue before the federal court was either adjudicated by the state court or was inextricably intertwined with the state court’s judgment, see Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001).

(LawReader Comment: None of the issues raised by John Berry were litigated by a state court.  Judge Reeves concludes that the (secret) action of the Inquiry Commission (from which Berry was excluded) was a “state court ruling”.

Under test No. 3 above, the Rooker-Feldman doctrine does not apply since Berry never had “a reasonable opportunity to raise (his)…federal claim in the state court proceeding.”)

“The Supreme Court held that the Rooker-Feldman doctrine is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Id. at 284, 125 S.Ct. 1517.

Drawing on the facts of Rooker and Feldman, the Supreme Court delineated the scope of the Rooker-Feldman doctrine: when the “the losing party in state court file[s] suit in federal court after the state proceedings end[], complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” Id. at 291, 125 S.Ct. 1517.

The Court noted that parallel state and federal litigation does not trigger the Rooker-Feldman doctrine “simply by the entry of judgment in state court.” Id. at 292, 125″

A year after Exxon Mobil, the Supreme [558 F.3d 1279] Court referred to it as a “limited doctrine.” See Lance, 546 U.S. at 464, 126 S.Ct. 1198 (“Neither Rooker nor Feldman elaborated a rationale for a wide-reaching bar on the jurisdiction of lower federal courts, and our cases since Feldman have tended to emphasize the narrowness of the Rooker-Feldman rule.”).

After all, “[s]ince Feldman, [the Supreme Court] has never applied Rooker-Feldman to dismiss an action for want of jurisdiction.” Exxon Mobil, 544 U.S. at 287, 125 S.Ct. 1517.

Therefore, we reverse the district court’s dismissal of the Appellants’ case for lack of subject matter jurisdiction by way of the Rooker-Feldman doctrine” 



Saturday, April 9th, 2011

 By LawReader Senior Editor Stan Billingsley   April 9, 2011

Court of Appeals Judge Sara Combs has published a concurring opinion upholding a legal theory she helped establish in 2000.  Judge Combs now finds that ruling to be “a victory of theory over common sense”.

In Commonwealth v. Marshall, 15 SW3d 392 (2000) she voted with the majority to uphold the rule of law that holds that a parent who is in prison can be punished for failing to pay child support which accrues during the prison service.

This rule has resulted in repeated criminal charges being filed against parents who are in prison and cannot work to earn money, and as a result can’t pay their child support obligations.

Once the arrearage adds up to $1000 they can, and often are, prosecuted and years can be added to their existing sentence.  This is a vicious circle  akin to the establishment of a Debtor’s Prison, such as the ones found in a Charles Dickens novel.

 This is the ultimate Catch-22.  “You must pay child support, but we will remove you from society so you can’t work, and then we will punish you further for not working.”

She writes in a Court of Appeal decision issued April 8, 2011 (cited below) that:

“The theory is that those who are incarcerated continue to accrue arrearages in child support not only in spite of — but also because of — the fact of their incarceration. No doubt the deliberate failure of a parent to support a dependent child is intolerable.

However, in reality, it makes no sense to charge a prisoner with constantly accruing new arrearages when he is in no position to work to obtain income either to meet or to offset child support that is owed and becomes owing. ”

“We have in effect created a legal nightmare of No Exit in which arrearages

continue to accrue and to constitute new felonies without any possibility on the part of the incarcerated to mitigate or to avoid the felonies of which he/she becomes instantly guilty.”

Judge Combs voted again to uphold the doctrine, in this week’s decision due to the precedent set in the 2000 ruling.  But she is unhappy with the result and calls on the legislature to remedy the injustice of this doctrine.

“On numerous occasions over the intervening years, I have regretted that vote after seeing the glaring injustice inherent in the rule of the Marshall case

“I do not know the solution to this social conundrum, but I am convinced as a matter of law, public policy, and conscience that it needs to be addressed by the legislature – perhaps as a continuation of its heroic overhaul of the penal system.”








For full text of case click case number 2010-CA-001175




COMBS, JUDGE, CONCURRING: I was a member of the panel that

decided Commonwealth v. Marshall, 15 S.W.3d 392, 402 (Ky. App. 2000), and I concurred reluctantly in its holding that “incarcerated parents are to be treated no differently than other voluntary unemployed, or underemployed, parents owing support.”

On numerous occasions over the intervening years, I have regretted that

vote after seeing the glaring injustice inherent in the rule of the Marshall case.

Marshall is a prime example of the victory of theory over common sense, of

academic opining over the dictates of reality, and of form over substance.

The theory is that those who are incarcerated continue to accrue arrearages in child support not only in spite of — but also because of — the fact of their incarceration. No doubt the deliberate failure of a parent to support a dependent child is intolerable.

However, in reality, it makes no sense to charge a prisoner

with constantly accruing new arrearages when he is in no position to work to obtain income either to meet or to offset child support that is owed and becomes owing.

We have in effect created a legal nightmare of No Exit8 in which arrearages

continue to accrue and to constitute new felonies without any possibility on the part of the incarcerated to mitigate or to avoid the felonies of which he/she becomes instantly guilty.

In effect, we are imputing criminal mens rea, a per se violation of due process on the part of the legal establishment.

I do not know the solution to this social conundrum, but I am convinced as a matter of law, public policy, and conscience that it needs to be addressed by the legislature – perhaps as a continuation of its heroic overhaul of the penal system.

There is no beneficiary under the current state of the law. Even those

intended to be protected — namely, the dependent children – are further victimized by suffering continued and often permanent non-support because the parent who is incarcerated likely will never be able – even if willing – to address and meet his or her growing arrearage and future child support obligations.


Friday, April 8th, 2011


“we do not believe the Horns have set forth a prima facie case of estoppel. First, the alleged false representation made by the developer in no way prevented the Horns from bringing an action seeking enforcement of the subdivision covenant.

“the Horns maintain that a $200 per hour fee was unreasonable and that certain attorney’s fees and costs should be disallowed.”

As to the amount charged per hour, we think $200 is both reasonable and well within the circuit court’s discretion for which we find no abuse.  See: Horn v. Messamore  2010-CA-000504

KBA seeks applicants to fill vacancy for Deputy Bar Counsel

Thursday, April 7th, 2011






The Kentucky Bar Association announces a vacancy in the position of Deputy Bar Counsel in the Office of Bar Counsel (OBC).  The applicant must be a licensed member of the Kentucky Bar, with a minimum experience in the practice of law of 3 years. Litigation experience preferred.

The OBC is responsible for the investigation and prosecution of all disciplinary cases against members of the Kentucky Bar, pursuant to the Rules of the Supreme Court of Kentucky.  OBC lawyers investigate bar complaints, review and analyze allegations of professional misconduct, present complaints to the Inquiry Commission regarding the issuance of disciplinary charges, examine witnesses at evidentiary hearings, present oral arguments to the KBA Board of Governors, and write briefs.

The OBC also advises the Board of Governors and Bar Committees on issues relating to ethics and the practice of law, provides staff support to the Attorneys’ Advertising Commission and the Clients’ Security Fund; assists the Executive Director with the enforcement of prohibitions against the unauthorized practice of law; and performs various other duties relating to the regulation of the Kentucky legal profession, as directed by the Board of Governors and the Executive Director.

The OBC is supervised and directed by a Chief Bar Counsel and a Chief Deputy.  In addition, there are seven Deputy Bar Counsel.  Each Deputy is responsible for a full caseload of disciplinary files and is also assigned one or more administrative or supervisory responsibilities.

This position represents a unique opportunity for a member of the Bar to use litigation skills and acquire expertise in the field of ethics as applied to the practice of law.

This is a full-time professional position in the public service sector that requires the same level of dedication as any other legal career.  Lawyers employed by the Kentucky Bar Association are not permitted to serve private clients or otherwise practice law outside of their official duties.  The OBC lawyers keep regular office hours at the Kentucky Bar Center in Frankfort and are required to engage in occasional travel throughout the state.  The contemplated salary for the vacant position is competitive with salaries for lawyers with 3 or more years of experience.   Benefits include vacation and sick leave, paid single health insurance and participation in the Kentucky Employees’ Retirement System (KERS).

To apply for the position, mail two copies of a detailed professional resume, which must include your salary requirement or salary history, references, and two copies of a recent legal writing sample, to John Meyers, Executive Director, Kentucky Bar Association, 514 West Main Street, Frankfort, Kentucky 40601-1812, before April 27, 2011.  No e-mail or fax submissions will be accepted.  The Kentucky Bar Association is an equal opportunity employer.

Clarence Thomas writes one of the meanest Supreme Court decisions ever.

Tuesday, April 5th, 2011

By Dahlia LithwickPosted Friday, April 1, 2011, at 7:43 PM ET

Clarence Thomas In 1985, John Thompson was convicted of murder in Louisiana. Having already been convicted in a separate armed robbery case, he opted not to testify on his own behalf in his murder trial. He was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson’s private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim’s family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson’s blood type.

1963, in Brady v. Maryland, the Supreme Court held that prosecutors must turn over to the defense any evidence that would tend to prove a defendant’s innocence. Failure to do so is a violation of the defendant’s constitutional rights. Yet the four prosecutors in Thompson’s case managed to keep secret the fact that they had hidden exculpatory evidence for 20 years. Were it not for Thompson’s investigators, he would have been executed for a murder he did not commit.

Both of Thompson’s convictions were overturned. When he was retried on the murder charges, a jury acquitted him after 35 minutes. He sued the former Louisiana district attorney for Orleans Parish, Harry Connick Sr. (yes, his dad) for failing to train his prosecutors about their legal obligation to turn over exculpatory evidence to the defense. A jury awarded Thompson $14 million for this civil rights violation, one for every year he spent wrongfully incarcerated. The district court judge added another $1 million in attorneys’ fees. A panel of the 5th Circuit Court of Appeals upheld the verdict. The 5th Circuit, sitting en banc, affirmed again.

But this week, writing on behalf of the five conservatives on the Supreme Court and in his first majority opinion of the term, Justice Clarence Thomas tossed out the verdict, finding that the district attorney can’t be responsible for the single act of a lone prosecutor. The Thomas opinion is an extraordinary piece of workmanship, matched only by Justice Antonin Scalia’s concurring opinion, in which he takes a few extra whacks at Justice Ruth Bader Ginsburg’s dissent. (Ginsburg was so bothered by the majority decision that she read her dissent from the bench for the first time this term.) Both Thomas and Scalia have produced what can only be described as a master class in human apathy. Their disregard for the facts of Thompson’s thrashed life and near-death emerges as a moral flat line. Scalia opens his concurrence with a swipe at Ginsburg’s “lengthy excavation of the trial record” and states that “the question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors.” But only by willfully ignoring that entire trial record can he and Thomas reduce the entire constitutional question to a single misdeed by a single bad actor.

Both parties to this case have long agreed that an injustice had been done. Connick himself conceded that there had been a Brady violation, yet Scalia finds none. Everyone else concedes that egregious mistakes were made. Scalia struggles to rehabilitate them all.

One of the reasons the truth came to light after 20 years is that Gerry Deegan, a junior assistant D.A. on the Thompson case, confessed as he lay dying of cancer that he had withheld the crime lab test results and removed a blood sample from the evidence room. The prosecutor to whom Deegan confessed said nothing about this for five years. While Scalia pins the wrongdoing on a single “miscreant prosecutor,” Ginsburg correctly notes that “no fewer than five prosecutors” were involved in railroading Thompson. She adds that they “did so despite multiple opportunities, spanning nearly two decades, to set the record straight.” While Thomas states the question as having to do with a “single Brady violation,” Ginsburg is quick to point out that there was far more than just a misplaced blood sample at issue: Thompson was turned in by someone seeking a reward, but prosecutors failed to turn over tapes of that conversation. The eyewitness identification of the killer didn’t match Thompson, but was never shared with defense counsel. The blood evidence was enough to prove a Brady violation, but it was the tip of the iceberg.

In the 10 years preceding Thompson’s trial, Thomas acknowledges, “Louisiana courts had overturned four convictions because of Brady violations by prosecutors in Connick’s office.” Yet somehow this doesn’t add up to a pattern of Brady violations in the office, because the evidence in those other cases wasn’t blood or crime lab evidence. Huh? He then inexplicably asserts that young prosecutors needn’t be trained on Brady violations because they learned everything in law school.

Scalia and Thomas are at pains to say that Connick was not aware of or responsible for his subordinates’ unconstitutional conduct, except—as Ginsburg points out—that Connick acknowledged that he misunderstood Brady, acknowledged that his prosecutors “were coming fresh out of law school,” acknowledged he didn’t know whether they had Brady training, and acknowledged that he himself had ‘stopped reading law books … and looking at opinions’ when he was first elected District Attorney in 1974.” And Connick also conceded that holding his underlings to the highest Brady standards would “make [his] job more difficult.” As Bennett Gershman and Joel Cohen point out, the jury had “considerable evidence that both Connick and prosecutors in his office were ignorant of the constitutional rules regarding disclosure of exculpatory evidence; they were ignorant of the rules regarding disclosure of scientific evidence; there was no training, or continuing education, and no procedures to monitor compliance with evidentiary requirements; prosecutors did not review police files; and shockingly, Connick himself had been indicted by federal prosecutors for suppressing a lab report of the kind hidden from Thompson.”

It’s not just that a jury, a judge, and the 5th Circuit Court of Appeals found that Connick knew his staff was undertrained and he failed to fix it. It’s that it’s almost impossible, on reviewing all of the evidence, to conclude anything else. Nobody is suggesting that the legal issue here is simple or that there aren’t meaningful consequences to creating liability for district attorneys who fail to train their subordinates in Brady compliance. But those aren’t the opinions that Thomas and Scalia produced. Their effort instead was to sift and resift the facts until the injury done to Thompson can be pinned on a single bad actor, acting in bad faith. It’s a long, sad, uphill trek.

Beyond that, there is no suggestion in either opinion that this is a hard question or a close call or even a hint of regret at their conclusion. There is only certainty that the jury, the appeals court, and above all Ginsburg got it completely wrong in believing that someone should be held responsible for the outrages suffered by John Thompson. If there is empathy for anyone in evidence here, it’s for the overworked and overzealous district attorneys.

It’s left to Ginsburg to acknowledge that the costs of immunizing Connick from any wrongdoing is as high as the cost of opening him to it: “The prosecutorial concealment Thompson encountered … is bound to be repeated unless municipal agencies bear responsibility—made tangible by §1983 liability—for adequately conveying what Brady requires and for monitoring staff compliance.” As Scott Lemieux points out, by all-but-immunizing Connick for the conduct of his subordinates, the court has created a perfect Catch-22, since the courts already give prosecutors absolute immunity for their actions as prosecutors (though they may still be liable for their conduct as administrators or investigators). By immunizing their bosses as well, the court has guaranteed that nobody can be held responsible for even the most shocking civil rights violations.

I don’t think that the failure at the court is one of empathy. I don’t ask that Thomas or Scalia shed a tear for an innocent man who almost went to his death because of deceptive prosecutors. And, frankly, Ginsburg’s dissent—while powerful—is no less Vulcan in tone than their opinions. But this case is of a piece with prior decisions in which Thomas and Scalia have staked out positions that revel in the hyper-technical and deliberately callous. It was, after all, Scalia who wrote in 2009 that “this court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” It was Thomas who wrote that a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form had no constitutional claim.

The law awards no extra points for being pitiless and scornful. There is rarely a reason to be pitiless and scornful, certainly in a case of an innocent man who was nearly executed. It leads one to wonder whether Thomas and Scalia sometimes are just because they can be.


Friday, April 1st, 2011

Where to Go During an Earthquake

Remember that stuff about hiding under a table or standing in a doorway? Well, forget it! This is a real eye opener. It could save your life someday.


My name is Doug Copp. I am the Rescue Chief and Disaster Manager of the American Rescue Team International (ARTI ), the world’s most experienced rescue team. The information in this article will save lives in an earthquake.

I have crawled inside 875 collapsed buildings, worked with rescue teams from 60 countries, founded rescue teams in several countries, and I am a member of many rescue teams from many countries. I was the United Nations expert in Disaster Mitigation for two years, and have worked at every major disaster in the world since 1985, except for simultaneous disasters.

The first building I ever crawled inside of was a school in Mexico City during the 1985 earthquake. Every child was under its desk. Every child was crushed to the thickness of their bones. They could have survived by lying down next to their desks in the aisles. It was obscene — unnecessary.

Simply stated, when buildings collapse, the weight of the ceilings falling upon the objects or furniture inside crushes these objects, leaving a space or void next to them – NOT under them. This space is what I call the ‘triangle of life’. The larger the object, the stronger, the less it will compact. The less the object compacts, the larger the void, the greater the probability that the person who is using this void for safety will not be injured. The next time you watch collapsed buildings, on television, count the ‘triangles’ you see formed. They are everywhere. It is the most common shape, you will see, in a collapsed building.


1) Most everyone who simply ‘ducks and covers’ when building collapse are crushed to death. People who get under objects, like desks or cars, are crushed.

2) Cats, dogs and babies often naturally curl up in the fetal position. You should too in an earthquake. It is a natural safety/survival instinct. You can survive in a smaller void. Get next to an object, next to a sofa, next to a bed, next to a large bulky object that will compress slightly but leave a void next to it.

3) Wooden buildings are the safest type of construction to be in during an earthquake. Wood is flexible and moves with the force of the earthquake. If the wooden building does collapse, large survival voids are created. Also, the wooden building has less concentrated, crushing weight. Brick buildings will break into individual bricks. Bricks will cause many injuries but less squashed bodies than concrete slabs.

4) If you are in bed during the night and an earthquake occurs, simply roll off the bed. A safe void will exist around the bed. Hotels can achieve a much greater survival rate in earthquakes, simply by posting a sign on the back of the door of every room telling occupants to lie down on the floor, next to the bottom of the bed during an earthquake.

5) If an earthquake happens and you cannot easily escape by getting out the door or window, then lie down and curl up in the fetal position next to a sofa, or large chair.

6) Most everyone who gets under a doorway when buildings collapse is killed. How? If you stand under a doorway and the doorjamb falls forward or backward you will be crushed by the ceiling above. If the door jam falls sideways you will be cut in half by the doorway. In either case, you will be killed!

7) Never go to the stairs. The stairs have a different ‘moment of frequency’ (they swing separately from the main part of the building). The stairs and remainder of the building continuously bump into each other until structural failure of the stairs takes place. The people who get on stairs before they fail are chopped up by the stair treads – horribly mutilated. Even if the building doesn’t collapse, stay away from the stairs. The stairs are a likely part of the building to be damaged. Even if the stairs are not collapsed by the earthquake, they may collapse later when overloaded by fleeing people.. They should always be checked for safety, even when the rest of the building is not damaged.

8) Get near the outer walls of buildings or outside of them if possible – It is much better to be near the outside of the building rather than the interior. The farther inside you are from the outside perimeter of the building the greater the probability that your escape route will be blocked.

9) People inside of their vehicles are crushed when the road above falls in an earthquake and crushes their vehicles; which is exactly what happened with the slabs between the decks of the Nimitz Freeway. The victims of the San Francisco earthquake all stayed inside of their vehicles. They were all killed. They could have easily survived by getting out and sitting or lying next to their vehicles. Everyone killed would have survived if they had been able to get out of their cars and sit or lie next to them. All the crushed cars ha d voids 3 feet high next to them, except for the cars that had columns fall directly across them.

10) I discovered, while crawling inside of collapsed newspaper offices and other offices with a lot of paper, that paper does not compact. Large voids are found surrounding stacks of paper.

Spread the word and save someone’s life…

The entire world is experiencing natural calamities so be prepared!

‘We are but angels with one wing, it takes two to fly’

In 1996 we made a film, which proved my survival methodology to be correct. The Turkish Federal Government, City of Istanbul, University of Istanbul Case Productions and ARTI cooperated to film this practical, scientific test. We collapsed a school and a home with 20 mannequins inside. Ten mannequins did ‘duck and cover,’ and ten mannequins I used in my ‘triangle of life’ survival method. After the simulated earthquake collapse we crawled through the rubble and entered the building to film and document the results. The film, in which I practiced my survival techniques under directly observable, scientific conditions , relevant to building collapse, showed there would have been zero percent survival for those doing duck and cover.

There would likely have been 100 percent survivability for people using my method of the ‘triangle of life.’ This film has been seen by millions of viewers on television in Turkey and the rest of Europe, and it was seen in the USA , Canada and Latin America on the TV program Real TV.