North Dakota Rules Chilling Judicial Speech Challenged

The North Dakota Family Alliance filed suit today in federal court to block enforcement of North  Dakota rules that forbid state court judicial candidates from responding to a survey asking their views on legal and political issues.  The suit was filed in the U.S. District Court for the District of North Dakota in Fargo.  The North Dakota Family Alliance was joined in the suit by a Fargo resident, Stella Jeffrey,  who seeks information on state judicial candidates. The case  was brought against members of the North Dakota Judicial Conduct Commission and the North Dakota Bar Association Inquiry Committee – bodies charged with disciplining judges and lawyers who violate the North Dakota Code of Judicial Conduct.

The Family Alliance had sent a survey to candidates for judicial office in the November 2004 election requesting that they state their views on policies and court decisions related to such matters as same-sex marriage and abortion.  Several of the judicial candidates refused to do so, citing a May 13, 2004, letter to "Candidates for Election to Judicial Office" from the North Dakota Judicial Ethics Advisory Committee that implied that judicial candidates could be punished for expressing their views on the Family Alliance survey.  The letter acknowledged that the U.S. Supreme Court had held a Minnesota rule that prohibited judicial candidates from "announcing their views on disputed legal or political issues" unconstitutional, but suggested that North Dakota judicial candidates could be disciplined for announcing their views anyway under separate  North Dakota rules that forbid judicial candidates from pledging or promising  and from committing to a particular result in a particular  case.

According to James Bopp, Jr., lead counsel for plaintiffs Family Alliance and Jeffreys, the North Dakota rules "fly in the face of the Supreme Court, which clearly stated that judicial candidates have a right to respond to surveys like this and that voters have a right to hear what they have to say."  Bopp, who argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), stated that North Dakota's rules and policy were being interpreted to "cover the same unconstitutional ground" as Minnesota's rule that prohibited judicial candidates from announcing their views had done.  "Judicial candidates should be able to respond to questions about their beliefs so that voters will have something more to vote on other  than their names, law school rank, and date of birth," said Bopp.

Family Alliance asked  for a preliminary injunction so that it judges may respond to their survey without fear of disciplinary action.  It hopes  to publish the candidates' responses on their website before the November 2004 election.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.