THE FAMILY FOUNDATION

In a major victory for the rights of citizens, state agencies that regulate judges have agreed to drop the canon that has had judicial candidates fearful of addressing even the broadest of questions about their view of the constitution and current issues facing the courts. This development came on Jan. 31 when the Kentucky Bar Association and the Judicial Conduct Commission agreed to drop the rule that limited the speech of candidates.

The Family Foundation filed the suit in federal court on Sept. 23, 2004 after it broadened its *Kentucky Candidate Information Survey* to include judicial candidates as well as its regular task of surveying candidates for the legislature. However, many judicial candidates, citing the strict canon, declined to participate.

U.S. District Judge Danny Reeves issued a preliminary injunction in late October, allowing The Family Foundation to pursue its survey with judicial candidates for the Nov. 2 election. At that time he said that the rule was so broad that a candidate could be sanctioned for making a generic promise to "uphold the First Amendment" or "to be tough on crime." Even with those expressed concerns, court watchers expected further court deliberation well into 2005. The early settlement came as a surprise to many.

"We are delighted," said Kent Ostrander, executive director of The Family Foundation. "Certainly, we do not want

judicial candidates pledging judgments while campaigning, but we also do not want citizens kept totally in the dark as they scrutinize candidates in an attempt to fulfill their constitutional duty of electing the Kentucky judiciary."

The suit, formally named *Family Trust Foundation of Kentucky, Inc. v. Wolnitzek,* alleged that the canon violated both the candidates’ First Amendment free speech rights and the right of The Family Foundation to publish such speech. The specific portion of the Code of Judicial Conduct that was dropped said "a judge or candidate for election to judicial office shall not make pledges or promises of conduct in office other than the faithful performance of the duties of the office; [and] 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."

"We simply wanted citizens to have the same probing access to their judicial candidates as the U.S. Senate has when it scrutinizes the President’s nominations," said Ostrander. "Both the U.S. Senate and Kentucky citizens have constitutional mandates to do their job. Why should the citizens of the Commonwealth be left without an ability to get the answers they need?"

The lead counsel for The Family Foundation, James Bopp, Jr., of Terre Haute, IN., maintains that judges should be free to give their opinion on issues like abortion – whether life begins at conception, for example – as long as they don’t promise to overturn *Roe v. Wade*. "A person would be unworthy to be a judge if he had no opinions on political or legal issues," said Bopp. "He would be an idiot, a moron."

Given a constitutional re-writing of the regulations, Ostrander anticipates a healthy election year in 2006, when all but three of the 275 Kentucky judicial seats will be placed on the ballot.
Key Family Foundation Contacts: Kent Ostrander , Executive Director Martin Cothran , Senior Associate Policy Analyst

In a major victory for the rights of citizens, state agencies that regulate judges have agreed to drop the canon that has had judicial candidates fearful of addressing even the broadest of questions about their view of the constitution and current issues facing the courts. This development came on Jan. 31 when the Kentucky Bar Association and the Judicial Conduct Commission agreed to drop the rule that limited the speech of candidates.

The Family Foundation filed the suit in federal court on Sept. 23, 2004 after it broadened its Kentucky Candidate Information Survey to include judicial candidates as well as its regular task of surveying candidates for the legislature. However, many judicial candidates, citing the strict canon, declined to participate.

U.S. District Judge Danny Reeves issued a preliminary injunction in late October, allowing The Family Foundation to pursue its survey with judicial candidates for the Nov. 2 election. At that time he said that the rule was so broad that a candidate could be sanctioned for making a generic promise to "uphold the First Amendment" or "to be tough on crime." Even with those expressed concerns, court watchers expected further court deliberation well into 2005. The early settlement came as a surprise to many.

"We are delighted," said Kent Ostrander, executive director of The Family Foundation. "Certainly, we do not want

judicial candidates pledging judgments while campaigning, but we also do not want citizens kept totally in the dark as they scrutinize candidates in an attempt to fulfill their constitutional duty of electing the Kentucky judiciary."

The suit, formally named Family Trust Foundation of Kentucky, Inc. v. Wolnitzek, alleged that the canon violated both the candidates’ First Amendment free speech rights and the right of The Family Foundation to publish such speech. The specific portion of the Code of Judicial Conduct that was dropped said "a judge or candidate for election to judicial office shall not make pledges or promises of conduct in office other than the faithful performance of the duties of the office; [and] 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."

"We simply wanted citizens to have the same probing access to their judicial candidates as the U.S. Senate has when it scrutinizes the President’s nominations," said Ostrander. "Both the U.S. Senate and Kentucky citizens have constitutional mandates to do their job. Why should the citizens of the Commonwealth be left without an ability to get the answers they need?"

The lead counsel for The Family Foundation, James Bopp, Jr., of Terre Haute, IN., maintains that judges should be free to give their opinion on issues like abortion – whether life begins at conception, for example – as long as they don’t promise to overturn Roe v. Wade. "A person would be unworthy to be a judge if he had no opinions on political or legal issues," said Bopp. "He would be an idiot, a moron."

Given a constitutional re-writing of the regulations, Ostrander anticipates a healthy election year in 2006, when all but three of the 275 Kentucky judicial seats will be placed on the ballot.