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Due to the unique relevance to lawyers, judges, and the current campaign season, I have posted substantial portions of this story by Andrew Wolfson.

One comment on the story posted on-line basically sees the writing on the wall if the changes continue in the current direction; eg., "So much for justice being blind. "For Sale" signs out in judiciary campaigns - Can't wait for that one."  One can't argue much with the portent of things to come with this decision and the decision last year by SCOTUS which opened the corporate coffers for campaign contributions.

Here is another development in the continuing changes in judicial elections with a further partisan politicization of the process.  Soon we will be seeing party endorsements, if not slates, of candidates.

The above image is from the book by C. harles Ashman, "The Finest Judges Money Can Buy and Other Forms of Judicial Polution".  Click on this link to obtain the book from Amazon.com.

For the full text of Marcus Carey v. Stephen Wolnitzek, click here.

And for some commentary from Marcus Carey's blog at BlueGrassBulletin.com:

I Stood Up For The Constitution, And Won

I am thrilled to announce that the United States District Court for the Sixth Circuit has affirmed the decision in my case wherein I challenged the Canons of Judicial Ethics in 2006 as violating the First Amendment to the U.S. Constitution.

Here are a few highlights from today's decision, Carey vs. Wolnitzek:

From the Courier Journal: 

Kentucky judicial hopefuls get right to solicit funds, reveal party

Judicial candidates in Kentucky have a First Amendment right to announce their political party affiliation and to directly solicit campaign contributions, a federal appeals court ruled Tuesday.

"Elections are elections, and the same First Amendment applies to all of them," a 6th U.S. Circuit Court of Appeals panel said.

The panel also questioned another rule that bars judicial candidates from pledging to rule a certain way on issues likely to come before them, but sent that back to a federal judge for additional consideration.

Marcus Carey, a former Republican Party leader from Northern Kentucky who lost a Kentucky Supreme Court race in 2006 and challenged the rules, said: "It's a great day for the Constitution."

But two candidates for Jefferson District Court said that they won't take advantage of either portion of the ruling because they think the changes will erode confidence in the impartiality of the courts.

"Just because you have a right to do something doesn't mean you should go out and do it," Judge Claude Prather said.

He and challenger Sandy McLaughlin, a former prosecutor, said they will continue to use committees to seek campaign contributions, rather than soliciting donations themselves.

"I just don't believe in putting pressure on people to do that," Prather said.

McLaughlin said litigants would be uncomfortable appearing before somebody who had advertised that he belonged to a different political party.

District court seats in Kentucky are up for election this year; circuit judges don't run for re-election until 2014.

Under the ruling, judicial candidates will still run in nonpartisan elections and their political party won't be identified on the ballot.

Steve Wolnitzek, chairman of the state Judicial Conduct Commission, a defendant in Carey's suit, said it would be up to the state Supreme Court, which sets judicial election rules, to decide whether to ask the U.S. Supreme Court to hear the case.

Carey also challenged a portion of a rule that bars judicial candidates from making statements committing them to rule a certain way "in a case, controversy, or issue that is likely to come before the court."

The court said Carey didn't dispute that the state has a compelling interest in "prohibit[ing] candidates from promising to rule a certain way on cases."

But the court said he feared he might violate the rule if he responded to a judicial questionnaire distributed by Kentucky Right to Life that raised questions for the candidates about their judicial philosophy and positions on specific issues.

In a 2008 opinion, U.S. District Judge Karen Caldwell had upheld that rule, but the 6th Circuit panel, ruling 2-1, sent it back to her for further consideration of what constitutes an "issue" that would violate the rule.

Carey's attorney, Jim Bopp of Terre Haute, Ind., said the portion is so broad that a candidate could be sanctioned for saying: "I promise to make sure everyone who appears before me will get a fair trial."

In a dissent, Judge Thomas B. Wiseman said the ban on committing on issues should have been upheld because it is obvious when such comments show bias.

"Is there any doubt about a commitment when a candidate professes to believe life begins at conception?" Wiseman wrote. "Is there any committed bias in favor of a political party when a candidate for judge states a 'strong belief in the right to keep and bear arms?'"

Wolnitzek and Bopp said the appellate court ruling was expected because federal courts around the country have been giving judicial candidates the same rights as contestants in other political races.

The Judicial Conduct Commission and Kentucky Bar Association defended the prohibitions on direct solicitation and announcing party affiliation, saying they help prevent corruption of the judicial process.

But the appeals court panel said that while "party affiliation might not be a reliable indicator of the qualities that make a good judge ... it is simply not the function of government to select which issues are worth discussing or debating in a political campaign."

The court also noted that judicial candidates could already disclose their party membership in response to a question; they were prohibited only from bringing it up themselves.

Seven states already allow judicial candidates to run affiliated with a political party. Nine others ban judges from running as politically affiliated. Fourteen other states that elect judges have no comparable rule.

In Indiana, where judges run in retention elections, they are barred from publicly identifying themselves by party and personally soliciting campaign contributions, according to appendices to the opinion.

The panel said that the rule barring candidates from soliciting money directly "suppresses speech in the most conspicuous of ways."

The judges said the rule favors the well-to-do, who may not need to raise any money at all, and the well-connected.

But McLaughlin said she will continue to let others raise money for her.

"It is hard to ask for money," she said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.

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