Sunday, October 3, 2004

Lawsuit disputes judicial silence

The Associated Press

LOUISVILLE - A conservative group has filed a federal lawsuit seeking to throw out a Kentucky rule that bars judges and challengers from committing themselves on topics that may come before them.

The Family Foundation of Kentucky, which opposes gay marriage and abortion, says the judicial canon infringes on the free-speech rights of citizen groups to survey judges and inform the public.

The lawsuit was filed Sept. 23 in U.S. District Court. It says that most of the 28 judicial candidates on the ballot statewide this year who responded to a survey sent out by the Family Foundation declined to fill it out, citing fear of violating the rule.

"Judicial candidates are unable to make their views known so that the electorate may intelligently evaluate the candidate's personal qualities and positions," the Family Foundation argued in its complaint.

The Lexington-based Family Foundation was unable to persuade a judge or candidate in Kentucky to join the suit as a plaintiff, said foundation director Kent Ostrander.

Louisville lawyer Richard Porter, who is running for the circuit bench in Jefferson County, understands the group's position.

"The public has a right to know where judges are coming from," Porter said.

Authorities on judicial ethics, however, said that if Family Foundation prevails, judges could promise in advance how they would decide cases, destroying the impartiality of the courts.

"It would be a disaster for the due process of law," said Northwestern law professor Steven Lubet, co-author of the book Judicial Conduct and Ethics: A Treatise on the Law of Judging.

The Kentucky Code of Judicial Conduct says judicial candidates shall not make pledges or promises other than to perform their duties impartially, and that they shall not make statements "that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."

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