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Ky. judicial candidates can't say how they would rule

By The Associated Press

FRANKFORT, Ky. — Judicial candidates in Kentucky can tell voters which political party they belong to and can even personally solicit contributions from attorneys who might later argue cases before them, a federal judge ruled yesterday.

However, U.S. District Judge Karen Caldwell said judicial candidates in the state can't promise how they will rule on particular issues, including hot-button topics like abortion or public postings of the Ten Commandments.

The ruling, filed in federal court in Frankfort, was in response to a lawsuit filed by Marcus Carey, a northern Kentucky lawyer running for the 6th District seat on the Kentucky Supreme Court in the November election against Court of Appeals Judge Wil Schroder.

"Our goal in filing this lawsuit was to provide a level playing field for all candidates," Carey said yesterday. "This is a great day for free speech in Kentucky. It's a great day for those of us who believe in the Constitution."

Carey, a resident of Erlanger, had challenged a rule that says judicial candidates can't "intentionally or recklessly" make statements that could be seen as a commitment to decide a certain way on any issue. Many legal officials have said the new rule gives judicial candidates more leeway in what they can say, but Carey claims the rule is too vague.

In her ruling, Caldwell also granted a preliminary injunction to prevent the Judicial Conduct Commission and the Kentucky Bar Association from enforcing rules that forbid candidates from announcing their political affiliation or personally seeking campaign contributions from attorneys.

Caldwell concluded that judicial candidates wouldn't create an appearance of favoritism by disclosing their political affiliations.

"The political party affiliations of many candidates ... are well known prior to the election," she said. "Even during and after the election, the political party affiliation of all candidates is readily discoverable through public records."

In addition, the judge said the current rule doesn't effectively stop a judge from favoring attorneys who contribute to their campaigns or targeting attorneys who don't contribute.

"Even with the prohibition against direct solicitation, ... judges are able to find out who contributed to their campaigns and the amount they contributed," Caldwell said in the ruling.

Caldwell said Carey established a "strong likelihood" that he would win on those two issues as the lawsuit progresses.

George Rabe, a Lexington attorney who represents the Judicial Conduct Commission, couldn't be reached for comment for this story.

Carey argued that the rules on judicial conduct put a chilling effect on judicial candidates' free-speech rights.

Had he won the right to discuss specific issues, Carey could have added spark to the traditionally low-key judicial campaigns by allowing candidates to more fully discuss their views on a variety of issues.

In the lawsuit, Carey contends judicial candidates are required to "withhold essential information" from the voters.

Carey said he was pleased with Caldwell's ruling.

"I believe she has made it very clear that in areas of great concern to judicial candidates across Kentucky that their First Amendment rights to political speech will not be suppressed," he said.


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Lawsuit says regulations limiting judicial candidates' comments violate free speech, deprive citizens of information they need to cast informed votes. 01.03.07

Wis. judicial candidates can talk about issues, federal court says
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Judicial campaign speech

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