Judges free to more aggressively campaign

Friday, July 12, 2002

JEFFERSON CITY, Mo. --By the end of a political campaign season, well-informed voters have heard all about candidates for legislative and executive branch office -- often more than they care to know --and the hopefuls' views on issues relevant to the posts they seek. The same isn't true concerning candidates for judge.

While those vying a spot on the bench are free to tout their experience, qualifications and background to the electorate and promise to faithfully carry out the duties of the office, state rules on ethics bar them from saying much more. As a result, judicial campaigns tend to be hum-drum affairs.

However, a recent U.S. Supreme Court ruling will change that, forcing Missouri and other states that restrict the political speech of judicial candidates to loosen the rules.

In a close 5-4 decision issued last month, the high court struck down a Minnesota canon of judicial conduct that said candidates from the bench couldn't "announce views on disputed legal issues." The majority said the "announce clause" violated the First Amendment in that it "places most subjects of interest to the voters off limits."

The Missouri Supreme Court's rules on political activity by judges and judicial candidates contain a clause identical to that found unconstitutional in Minnesota.

Chief Justice Stephen N. Limbaugh Jr. said the Missouri high court will meet in August to discuss what changes are needed to bring the state's rules in line with the new decision. However, those changes will come too late to provide guidance to those running in the Aug. 6 party primary elections.

"We expect candidates to follow the U.S. Supreme Court decision, which is controlling, of course," Limbaugh said. "In the meantime, we will try to evaluate what the impact is on our own rules."

Aside from banning announce clauses, the decision offers little further direction for state courts reviewing their standards, said Dr. Brian Smentkowski, a political science and constitutional law professor at Southeast Missouri State University.

"One of the things conspicuously lacking in the court's ruling is guidance," Smentkowski said. "The parameters are still ambiguous."

Unaddressed by the court were restrictions against candidates to "pledge or promise" to take certain actions from the bench. Smentkowski predicted further litigation will result to clarify this and other related issues.

Although judicial candidates who violate the rules are subject to discipline by the court, complaints about comments made on the campaign trail are rare.

Because Missouri appellate judges, as well as trial judges in the St. Louis and Kansas City areas, are appointed, the ruling is expected to have less impact in the state than in states, such as Minnesota, where judges at all levels of the judiciary are chosen in partisan elections.

Still, all circuit and associate circuit court judges outside of the state's two main urban areas are selected by voters, and over time the ruling could lead to more lively campaigns. However, the two candidates running for judge in the 32nd Circuit, which covers Bollinger, Cape Girardeau and Perry counties, don't expect it to have much immediate impact.

Bryan Keller, a lawyer with the state public defender's office in Jackson, Mo., said the current rules already allow a candidate to draw contrasts between himself and his opponent. Keller is challenging incumbent circuit Judge William L. Syler in the GOP primary. As there is no Democratic candidate, the primary winner claims the job.

"I find that, as a candidate, I can speak fairly openly," Keller said. "One thing I can't do is say something that is not true. I don't think the decision will make that much difference in Missouri."

Missouri's rules and those like them in other states are intended to help keep judges, especially elected ones, above the political fray as much as possible to preserve ideal of judicial impartiality.

Syler, who has served on the bench since 1992, said there is a delicate balance a candidate must strike between giving voters the information they need to make a decision and avoiding the appearance of bias on issues that may come before the court.

"If you say certain things, they might come back to haunt you," Syler said. "You still have to be careful with what you say even though you are theoretically allowed to say it."

Unlike appeals court judges, who have more leeway in interpreting and molding the law, trial judges must follow established precedent. Syler said a judge's personal and professional opinions on disputed issues are often at odds. If a judicial candidate states an opinion that runs counter to the law, it could create the impression that, as a judge, that person would disregard the law in favor of his own beliefs, Syler said.

Southeast's Smentkowski agrees there is a fine line for judicial candidates.

"The problem is voters don't have a sophisticated calculus for determining judicial suitability," Smentkowski said.


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