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

By The Associated Press

MADISON, Wis. — Judicial candidates in Wisconsin can discuss their beliefs on the campaign trail as long as they don’t promise to rule one way or another, a federal judge has ruled.

U.S. District Judge John Shabaz’s decision could give voters a better idea of what judicial candidates stand for, said Mike McCabe, executive director of the government watchdog group Wisconsin Democracy Campaign.

Until now, McCabe said, judicial candidates have had to choose their words carefully for fear of compromising their impartiality.

“We’ve reached a point where voters basically have to choose blindly in judicial campaigns because judges can’t say anything about what they believe or where they stand or how they might rule in a case,” McCabe said. “Justice is supposed to be blind, but voters aren’t supposed to be blind.”

Shabaz on May 29 struck down a section of the state’s judicial-conduct code that prohibits judges and judicial candidates from making public statements that appear to commit them on an issue, calling it too broad and unconstitutional. They can disclose opinions as long as they don’t clearly commit to a decision, Shabaz wrote.

Statements such as “I will” or “I will not” imply commitment, Shabaz said. Phrases such as “I believe” or “It is my opinion” are acceptable, he said.

Judges and candidates should be able to share thoughts on issues to demonstrate they have pondered problems and formed opinions, Shabaz added.

“There is a very real distinction between a judge committing to an outcome before the case begins, which renders the proceeding an exercise in futility for all involved, and a judge disclosing an opinion and predisposition before the case,” the judge wrote.

The ruling comes after Wisconsin Right to Life, an anti-abortion group, and eight state residents filed a lawsuit in December. They challenged the public statement section of the conduct code as well as another provision that prevents judges and candidates from making pledges, promises or commitments.

The group and the residents filed the suit after several judicial candidates this year and last declined to answer a questionnaire on how they interpret abortion laws. The candidates said the conduct code prevented them from responding.

Shabaz ruled responses to the survey are free speech and don’t constitute promises, pledges or commitments.

James Bopp Jr., an Indiana lawyer representing Wisconsin Right to Life, said he agreed candidates shouldn’t telegraph how they would rule in a case. But they should be allowed to discuss legal issues, he said.

“Saying Roe v. Wade was not correctly decided is just talking about your judicial philosophy,” Bopp said.

Kevin St. John, a spokesman with the state Justice Department, which represented the state in the case, declined to comment.

Still, the Wisconsin Democracy Campaign’s McCabe said he was unsure whether the ruling would spark in judicial races the kind of free-for-all rhetoric common in campaigns for the state Legislature or governor.

“Once they start commenting on issues, you can begin to read into those comments how they might rule on a case. They’re going to be very reluctant to go there,” McCabe said. “This ruling begins to open a door. That’s not to say judicial candidates will walk through that door.”

Federal court asked to toss Wis. judicial-campaign rules
Lawsuit says regulations limiting judicial candidates' comments violate free speech, deprive citizens of information they need to cast informed votes. 01.03.07


Rules for judicial candidates divide Wisconsin high court

Some justices argue new provisions go too far, could restrict campaigning judges' free speech. 11.07.04

Ky. judicial candidates can't say how they would rule
Federal judge finds they can tell voters their political affiliation and solicit contributions from attorneys who may argue cases before them. 10.11.06

Ind. candidates challenge judicial-speech rules
Lawsuit seeks to block enforcement of regulations prohibiting judicial hopefuls from responding to survey that asks their views on abortion, euthanasia and other issues. 04.21.08

Judicial campaign speech

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