PRESS RELEASE
Thursday, September 30, 2004
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

Federal District Court Judge Danny C. Reeves set oral argument for October 15th in a suit was filed last week to block enforcement of Kentucky's rules that forbid state court judicial candidates from responding to a survey asking their views on legal and political issues. The case was filed in the U.S. District Court for Eastern District of Kentucky in London by the Family Trust Foundation of Kentucky, which sponsored the survey, and two Knox County residents, Leonard Lester and Stephen Toadvine, M.D., who seek information on state judicial candidates. Family Trust Foundation of Kentucky, Inc., et al. v. Wolnitzek, et al., No. 6: 04-473-DCR (E.D. Ky., filed Sep. 24, 2004). It was brought against members of the Kentucky Judicial Conduct Commission and the Kentucky Inquiry Commission – bodies charged with disciplining judges and lawyers who violate the Kentucky Code of Judicial Conduct.

The Family Trust Foundation 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 August 5, 2002, memorandum addressed to "Justices, Judges, and Judicial Candidates" from the Kentucky Judicial Conduct Commission that implied that judicial candidates could be punished for expressing their views in response to surveys like that sent by the Family Trust Foundation. The memorandum 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 Kentucky judicial candidates could be disciplined for announcing their views anyway under separate Kentucky 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 the plaintiffs, the Kentucky rules "contradict the U.S. Supreme Court's decision, 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 Kentucky'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.

The Family Trust Foundation 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.