Judicial Election Rules Loosened in Kentucky

     COVINGTON, Ky. (CN) — A federal judge ruled that the Kentucky Judicial Conduct Commission can no longer enforce certain state ethics rules prohibiting political speech in judicial elections based on its content.
     Kentucky holds “nonpartisan” judicial elections, meaning political parties are not listed next to candidates on the ballot and judicial candidates do not need to win a party primary to get on the ballot.
     Instead, one primary election is held, and the two candidates with the most votes go on to face each other in a general election, according to court records.
     Allison Jones was appointed to fill a vacancy on the Kentucky Court of Appeals in 2013 by then-Gov. Steven Beshear. She needed to win an election the next year to keep her seat.
     Jones told voters “that she would make it a priority of hers to fight the heroin epidemic that has plagued Kentucky in recent years,” urged them to “re-elect” her, and “promised to promote stiff heroin sentences at the same time,” court records show.
     Jones won the election, but later received a letter saying she was accused of violating judicial code of conduct by asking voters to re-elect her even though she was appointed, and by stating that she would work with the legislative and executive branches to ensure stiff penalties for heroin dealers.
     Robert Winter, meanwhile, was running for a circuit judge position in May 2014 when he sent out mailers emphasizing conservative values and including details about the political party affiliations of Winter and his opponents.
     Winter was also accused of state judicial ethics canons. He responded by suing the Kentucky Judicial Conduct Commission.
     Robert Blau also ran for a district judge position in 2014, and sent out campaign literature identifying himself as a Republican. He claims he wanted to seek an endorsement from the Republican Party, but feared that would be against judicial conduct code, according to court records.
     Blau intervened in Winter’s lawsuit in October 2014, and Jones intervened three months later.
     On Thursday, U.S. District Judge Amul Thapar ruled that the Kentucky Judicial Conduct Commission can no longer enforce some ethics canons stopping judges or judicial candidates from campaigning for or against political organizations or issues.
     “It is easy for those in the Article III courts to cluck our tongues schoolmarmishly at the idea of judicial elections—to recoil at the idea of mixing politics and judging. Of course, those things are mixed somewhat in the federal system, too, as the current state of our judicial-nominations process shows,” Thapar wrote. “Each of us was appointed by a president beholden to the popular will. And each of us was confirmed by senators who would lose their jobs quite quickly if they disregarded the desires of their constituents.”
     But, the judge said, individual states “have the prerogative to choose just how insulated from the will of the people—or how responsive—they want their judges to be.”
     “A state can choose to appoint its judges outright, as many do. A state can choose to elect its judges in the same manner as other leaders, as many do. And a state can take a middle course—as Kentucky has done—and allow the people pick judges but at the same time try to insulate those judges from the often dirty business of partisan politicking,” Thapar wrote. “To the extent that Kentucky’s judicial canons try to do that, they are constitutional. And to the extent that the canons try to ensure that judges are honest—another laudable goal—they are constitutional as well.”
     However, the First Amendment means that states like Kentucky “must be surgically precise when they enact what is in fact a speech code,” Thapar said in the 45-page ruling.
     “It also means that states cannot gag candidates from announcing their views on the important issues of the day,” the judge wrote. “Thus, to the extent that the canons are too vague—or limit what a judge or would-be judge can say about an issue—they violate the First Amendment.”
     The specific judicial ethics canons struck down by Thapar are portions of Canon 5(A)(1) that prohibit judges and judicial candidates from making speeches for or against a political organization or candidate, making a financial contribution to a political organization, or making “pledges, promises or commitments” regarding certain issues.

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