In a surprising ruling, Ky. Judicial Campaign Rules are turned upside down. The ruling demonstrates the growing trend of the Federal Courts to void laws or ethics rule that limits free speech of lawyers and judges.

The Sixth Circuit Court of Appeals in Cincinnati,  on Tuesday cleared the way for Kentucky judicial candidates to raise money and run with political party affiliations, but ordered a lower court to consider whether the candidates can offer specific positions on issues.

The courts have traditionally kept their hands off the ethics rules and judicial conduct rules adopted by the states, but in recent years have nibbled away those rules.

Judge Jeffrey Sutton of the Cincinnati-based U.S. 6th Circuit Court of Appeals said banning campaign fundraising and party affiliations violated the First Amendment’s guarantee of free speech.

“Elections are elections, and the same First Amendment applies to all of them,” Sutton wrote for the three-judge panel.

In 2008, U.S. District Judge Karen Caldwell also threw out the Kentucky Judicial Conduct Commission’s rule against judicial candidates identifying themselves by party and raising money, but she upheld a ban on judicial candidates taking stands on specific issues.

Judge Thomas B. Wiseman of the 6th Circuit said he would have upheld the ban on candidates professing a stand on specific issues. Wiseman said candidates know when such a stance has been taken and states can deal with those on a case-by-case basis.

“Is there any doubt about a commitment when a candidate professes to believe life begins at conception?” Wiseman wrote. “Is there any committed bias in favor of a political party when a candidate for judge states a ‘strong belief in the right to keep and bear arms’?”

James Bopp, a Terre Haute, Ind., attorney who represented the plaintiff, said the ruling brings judicial campaigns into line with other political races.

“It just seems absurd that, as I think the 6th Circuit found, that you would have campaigns for judicial office and candidates could not do things like this that are so basic to running for office,” Bopp said.

The decision could affect Ohio, where judicial candidates are barred from identifying a party affiliation after the primary election.

“It would certainly make it unenforceable,” Bopp said of Ohio’s rule. “That doesn’t mean they may not try to enforce it. But, it certainly makes it unenforceable.”

The Ohio Attorney General’s office filed a brief in the case seeking to uphold the state’s ban. Ted Hart, a spokesman for the Ohio Attorney General’s Office, said office is analyzing the decision and its possible impact on the state, even though the ruling didn’t directly address Ohio.

Former Kentucky Republican Party official Marcus Carey, who lost the 2006 race to Kentucky Supreme Court Justice Wil Schroeder, challenged Kentucky’s rule that said judicial candidates must not “intentionally or recklessly” make a statement that could be perceived “by a reasonable person” as committing them to rule a certain way on an issue they could hear.

The new rule was drafted after a judge struck down a previous one that prevented judicial candidates from making statements that “commit or appear to commit” to positions on cases they likely would hear.

Seven states, including Texas, Louisiana and Pennsylvania, already allow judicial candidates to run affiliated with a political party. Nine other states, including North Carolina, Oregon and Wisconsin, ban judges from running as politically affiliated. Fourteen states that elect or vote to retain judges have no comparable rule.

Certiorari  could be requested from U.S. Supreme Court for their consideration. It is also possible that the intermediary step of asking for an En Banc ruling of the entire 6th. Circuit might be considered.

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