03/27/02

Washington

- U.S. Supreme Court justices yesterday questioned the constitutionality of a Minnesota law forbidding state court candidates from making promises or pronouncements on disputed legal issues.

Ohio and more than 30 other states that elect judges have similar laws. They are aimed at making sure candidates do not prejudice future cases by saying in advance how they would decide them.

"A candidate could criticize a past decision by a judge, but could not say how they would decide a future case," said Alan Gilbert, the deputy Minnesota solicitor general defending the law.

During arguments yesterday, the justices seemed skeptical as to the practicality of such a rule, which pits the goal of an impartial judiciary against free speech rights.

If the high court overturns the Minnesota law, the opinion could also change the nature of judicial campaigns in Ohio and other states where candidates seldom take strong positions on thorny issues such as the death penalty or abortion.

"I am absolutely befuddled," said Justice Antonin Scalia. Why elect judges, he asked, if the public cannot determine during a campaign how they will behave on the bench?

The Minnesota rule prohibits a judicial candidate from "announcing his or her views" on public policy or political issues that are under debate in the public arena.

"It is totally imprecise," said Scalia. "It is nothing but fluff."

"Very fuzzy," added Justice Ruth Bader Ginsberg.

Even Gilbert conceded that there is a "fine distinction" in some instances on what can and cannot be discussed.

The rule in Ohio and some 24 other states is narrower. Based on an American Bar Association model canon from 1990, the Ohio rule says judicial candidates shall not "make statements that commit or appear to commit" them to positions on cases or matters likely to come before the court.

"I have found it not to be as confining as some may regard it to be," said Ohio Supreme Court Justice Paul Pfeifer. "I think you can discuss general philosophy. If you know there is a case coming, then you should stay away from it."

But Pfeifer did not defend the rule. He said some judicial candidates hide behind it to avoid taking stands on tough issues.

Catherine Turcer, campaign reform director for Citizen Action, a Cleveland public-interest group, said the court should lift some of the speech restrictions and permit candidates for the Ohio Supreme Court, Ohio Court of Appeals and Common Pleas courts to make broad statements about issues. "Now, it is too limited for voters to make adequate decisions," she said.

In Washington, lawyer James Bopp, representing a 1996 Minnesota Supreme Court hopeful, told the court that when a candidate's speech is "severely restricted," the public is denied access to information it needs for an informed choice.

The Minnesota candidate, Republican Gregory Wersal, challenged the judicial rule in federal court, arguing that he was muzzled in a race against a better-known rival, onetime football star Alan Page. He was backed by the American Civil Liberties Union and the U.S. Chamber of Commerce, but the U.S. District Court and 8th U.S. Circuit Court of Appeals upheld the state code.

Bopp said the rule governing judicial campaigns violates the First Amendment because it does not offer a "bright line" on what is allowable. Yet he agreed that judicial candidates should not be permitted to promise "certain results" on cases that might come before them down the road.

Here, the justices seemed to recognize murkiness on both sides of the issue.

"That is an extremely fine line you are drawing," Chief Justice William Rehnquist told Bopp.

Plain Dealer reporter T.C. Brown contributed to this article.

Contact Tom Diemer at:

tdiemer@plaind.com, 216-999-4212