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Rules for judicial candidates divide Wisconsin high court

By The Associated Press

MADISON, Wis. — A divided state Supreme Court has approved new rules governing campaign activity by judges and judicial candidates, with some justices arguing certain provisions go too far and could restrict free speech.

Three of the justices objected to regulating the political activity of judicial candidates who are not yet judges.

The new rules are "permeated with unrealistic expectations, unreasonable prohibitions, and inexplicable bias," Justice David Prosser wrote in a dissenting opinion released this week with the court's order adopting the rule revisions.

The rules require people who seek election or appointment to a court to give up membership in political parties and other partisan activity, even if it's unrelated to the judgeship. But the rules allow judicial candidates who already hold a partisan political office to continue to engage in partisan political activities "required by his or her present position."

Prosser said that was unfair because it permits some candidates to engage in partisan politics while prohibiting it for others. He also said it didn't make sense to prohibit political-party membership for candidates who aren't judges while still allowing them to belong to organizations that lobby for policy changes.

Justices Louis Butler and Patience Roggensack also objected to the restriction, arguing it violated the First Amendment right to free speech.

But Chief Justice Shirley Abrahamson wrote that the rules provided reasonable and meaningful limits on partisan political activity.

Abrahamson called the limitations on partisan political activity "minor conveniences" compared to the compelling public interest of having courts committed to nonpartisanship.

"The impartial and detached judge is not merely a virtuous, lofty ideal," she said. "Such a judge is the essence of due process, the keystone of our concept of justice."

The rules also prohibit judges and judicial candidates from personally soliciting or accepting campaign contributions and making statements on how they might rule on particular cases or issues.

The new rules resulted from a seven-year process launched with a commission the court appointed to study judicial elections and judges' participation in partisan politics.

The commission said the judicial system could benefit from more-specific campaign rules, but said writing them would be challenging because of the difficulty predicting what issues could become "grist in an election mill," while also protecting candidates' free-speech rights.

An Associated Press review earlier this year found Wisconsin's Supreme Court justices all had political connections to legislators and attorneys involved in appeals asking the judges to throw out felony counts against the lawmakers.

Those links range from campaign contributions as small as $20 to direct involvement in the justices' campaigns for the state's highest court.

The Judicial Conduct Advisory Committee, appointed by the state Supreme Court, issued an opinion this year that judges can hear cases involving past supporters.


High court nixes limits on judicial candidates' speech

Justices say Minnesota's rules, while well-intended, impose an unconstitutional gag order. 06.27.02

Minnesota judicial candidates still reside in free-speech 'gray area'
Although U.S. Supreme Court struck down state's restrictions, Minnesota high court issued rules last month that essentially keep those limits in place. 10.18.04

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

Wis. judicial candidates can talk about issues, federal court says
Judge rules judicial hopefuls can disclose opinions as long as they don't promise to rule one way or another. 05.31.07

Judicial campaign speech

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Last system update: Thursday, November 13, 2008 | 20:56:45
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