A three-judge panel of the United States
Court of Appeals for the Sixth Circuit
has refused to stay the preliminary
injunction granted by Kentucky Federal
District Court Judge Danny C. Reeves
against provisions of the Kentucky Code
of Judicial Conduct that prohibited
state court judicial candidates from
responding to a survey asking their
views on legal and political issues.
Family Trust Foundation of Kentucky,
Inc. v. Kentucky Judicial Conduct Comm'n,
Nos. 04-6250/6251 (6th Cir. Oct. 27,
2004); see
http://pacer.ca6.uscourts.gov/opinions.pdf/04a0373p-06.pdf
The case involves a challenge to
provisions of the Kentucky Code of
Judicial Conduct that forbid judicial
candidates from answering a survey sent
to them by the Family Trust Foundation
of Kentucky requesting their views on
such matters as gay marriage and
abortion. The district court granted a
preliminary injunction against the
provisions, Memorandum Opinion and Order
Granting Partial Injunctive Relief,
Family Trust Foundation of Kentucky,
Inc. v. Wolnitzek, No. 6:04-473-DCR (E.D.
Ky., Oct. 19, 2004), thus allowing
Family Trust Foundation to try to
question judicial candidates and place
their replies on its internet site
before this year's election. Defenders
of the Kentucky Code then asked the
Sixth Circuit to stay the district
court's injunction.
Writing for a unanimous panel, Sixth
Circuit Judge Alice M. Bachelder held
that Kentucky's judicial conduct rule
forbidding judicial candidates to
"promise or commit" on issues was
understood by Kentucky law to be the
"functional equivalent" of the Minnesota
clause that prohibited judicial
candidates from announcing their views
on disputed legal or political issues
held unconstitutional by the U.S.
Supreme Court in Republican Party of
Minnesota v. White, 536 U.S. 765
(2002). Thus, according to the Sixth
Circuit, those who challenged the
Kentucky rule were likely to succeed on
the merits of the case, and Kentucky's
request for stay of the district
court's injunction should be denied.
The Sixth Circuit also held that
Kentucky had failed to show that
irreparable harm would result or that
the public interest would not be served
if the injunction were not stayed.
According to the Court, Kentucky failed
to address "the strong public interest
in the electorate's receiving candidate
state statements."
According to James Bopp, Jr., lead
counsel for the challengers, 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 these candidates 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, stated that
the Sixth Circuit agreed that
Kentucky's rules and policy were being
interpreted to "cover the same
unconstitutional territory" as
Minnesota's rule that prohibited
judicial candidates from announcing
their views had done and, according to
Bopp, should be struck down for the same
reasons.
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.