6th Circuit Strikes Down Kentucky Judicial Canon

(CN) - The 6th Circuit struck down as unconstitutional rules barring judicial candidates in Kentucky from disclosing their party affiliations or soliciting campaign donations. The court said a third rule, blocking candidates from making statements that could signal how they might rule, was too ambiguous and needed further consideration.

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

Marcus Carey, a 2006 candidate for the Kentucky Supreme Court, claimed the judicial canon violated his constitutional rights to free speech and association. He sued members of the Kentucky Judicial Conduct Commission, claiming he was chilled from disclosing his party status or signing fund-raising letters. He said he wanted to respond to a Kentucky Right to Life questionnaire, but feared doing so would violate the canon.

The Cincinnati-based appeals court upheld U.S. District Judge Karen Caldwell's order invalidating the first two clauses, on party affiliation and solicitation. It then went a step further and reinstated Carey's challenge of the third clause, which bars candidates from making statements about how they would rule on cases, controversies or issues likely to come before them.

"[W]hat exactly does the 'issues' prohibition cover?" Sutton asked, remanding this part of the decision. "At this point it is not clear what the commonwealth's position on the term is, and the district court has not yet explored these issues," he added.

"If a law does too much, or does too little, to advance the government's objectives, it will fail," Sutton wrote. "This canon does both."

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