Judge candidate sues to run openly as a Republican

When judicial candidate Robert Winter Jr. sent out fliers before Kentucky's May primary identifying himself as a "lifelong Republican" — and three of his opponents as Democrats — the Kenton County lawyer thought he was on solid ground.

Just four years earlier, a federal appeals court across the Ohio River in Cincinnati proclaimed that judicial candidates have a right to announce their party affiliation.

"Elections are elections, and the same First Amendment applies to all of them," said the 6th Circuit Court of Appeals in one of a series of rulings around the country loosening restrictions on what candidates can say during judicial election contests.

But less than two weeks after the May 20 primary, the state's Judicial Conduct Commission sent Winter a letter advising him that three complaints had been filed against him. The commission requested that he respond.

Instead, Winter has sued the commission in federal court, demanding that Kentucky's judicial ethics rules — which were slightly revised by the Kentucky Supreme Court after the 2010 appeals court decision — be struck down again as unconstitutional and that the judicial enforcement agency be enjoined from sanctioning him.

Lawyers say the case shows how Kentucky regulators are still grappling with how to balance the interest in keeping judicial races nonpartisan with the new found freedoms afforded to judicial candidates by the courts. Kentuckians have elected judges independent of the partisan political system since the 1975 state constitutional amendment unifying and reforming the courts.

Every district and circuit judgeship in Kentucky is up for election this year, including in Jefferson County, where there are 13 contested races.

Judicial candidates in Jefferson have shunned the right to announce their party affiliation or express their views on controversial issues, as is permitted under decisions from the U.S. Supreme Court and other tribunals.

In First Amendment cases federal courts have said that candidates can say, for example, that they would be "tough on crime," that they would have joined in the dissent in Roe v. Wade, the 1973 decision legalizing abortion nationwide, or that they think the death penalty is cruel and unusual punishment.

"I am not convinced that there is much of anything we can keep anyone from saying," said Steve Wolnitzek, the Judicial Conduct Commission's chair.

But Louisville judicial campaign consultant Larry O'Bryan said candidates are afraid to test the envelope for fear of being slapped by watchdog groups like Citizens for Better Judges and the Kentucky Judicial Campaign Conduct Committee — or The Courier-Journal's editorial board — if they do.

Judicial candidates say there is more to it than that. They say there are idealistic and practical reasons for keeping party politics and ideology out of judicial races.

Jefferson District Judge Stephanie Pearce Burke, who is seeking a second term, said it wouldn't "behoove" a candidate running for judge to "wave the Republican or Democratic flag" because judicial candidates "need to go to everyone to get elected." She also said making ideological statements can turn off voters. "I don't think it makes you look very judicious," she said.

Her opponent, Assistant County Attorney Andre Bergeron, said that running by party or announcing positions on hot-button issues is fundamentally at odds with the notion that judges give "level footing and a fair voice to everybody."

"I think saying you will be 'tough on crime' would sound appealing to most of the population," he said, "unless you're the poor sap who is charged with a crime and has go in that candidate's courtroom thinking the deck is stacked against you."

(In Indiana, most judges are elected in partisan races, where candidates are allowed to identify themselves by party, said Adrienne Meiring, counsel for the state Commission on Judicial Qualifications.)

Running for Kenton circuit judge against four opponents, Winter sent out 12 different mailers. In the six that targeted Republican voters, he identified himself as a "lifelong Republican" and three of his four opponents as registered Democrats. (The fliers didn't identify a fifth candidate who also is a Republican.)

The mailers also said Winter would "protect our conservative values" and that "judicial activism" would have "no place in my courtroom."

The strategy did not succeed; Winter came in last, which he attributes to lack of name recognition. And on June 2, the commission notified him that three anonymous complaints had been filed against him, for identifying his party and the party of his opponents, and for misleading voters by suggesting the election was a partisan race. The judicial discipline agency asked him to respond to the allegations.

Winter sued in U.S. District Court in Covington, charging that the commission was trying to enforce a "patently" unconstitutional rule against speech that the 6th Circuit said was protected.

His lawyer, Christopher Wiest, said that many voters want to know whether a judicial candidate is a Republican or a Democrat, along with their other affiliations, because they are a shorthand way of discovering the candidate's "guiding philosophies and principles" that may influence their decisions on the bench.

As the 6th Circuit said, while "party affiliation might not be a reliable indicator of the qualities that make a good judge, it is simply not the function of government to select which issues are worth discussing or debating in a political campaign."

The rule that court struck down said judicial candidates shall not act as "a leader or hold any office in a political organization." (Commentary with the rule said they shouldn't identify themselves "as a member of a political party.") The rule has since been amended by the state Supreme Court to say a judicial candidate "shall not campaign as a member of a political organization."

Wiest said there is no distinction between the rules and that both are unconstitutional. Wolnitzek conceded in an interview that he doesn't "have a clue" how the rules differ.

But the commission says that Winter's suit is premature because it hasn't filed a formal charge against him — and may never do so. "Just because we ask someone about complaints doesn't say what we are going to do about them or what our position is," Wolnitzek said.

U.S. District Judge Amul Thapar on Wednesday gave both sides until Aug. 21 to file briefs in the case.

Winter faces a possible private reprimand or public admonition if the commission charges him. The Kentucky Bar Association, which he had named in his lawsuit, has been dismissed after it agreed not to consider sanctions against him.

The two top primary finishers who will square off in the general election, Kathy Lape and James Redwine, didn't respond to requests for comment. Fourth-place finisher Jason Hiltz, a prosecutor, said, "I thought it was interesting that he listed three of the opponents and neglected to mention the other Republican in the race, that being me."

Covington lawyer Mary Molloy, who finished third and out of the running, said in an interview that she thinks Winter had the right to identify his party affiliation but misled voters into thinking the race was partisan by citing the affiliation of his opponents.

"Judicial races are supposed to be nonpartisan," she said. "Litigants have the right to expect the judge not to have an agenda when they come into the courtroom. They have a right to a level playing field, and if they don't get it, they're not getting justice."

Reporter Andrew Wolfson can be reached at (502) 582-7189. Follow him on Twitter @adwolfson.

Judicial candidates and free speech

Reversing the longstanding policy of Kentucky and most other states, the U.S. Supreme Court in 2002 struck down a judicial ethics rule that barred judicial candidates from announcing their views on disputed legal or political issues. In a 5-4 ruling in a case from Minnesota, the court said such restrictions "burden a category of speech that is at the core of First Amendment freedoms — speech about the qualifications of candidates for public office."

The majority said states have a compelling interest in preserving judicial impartiality but the rule was not narrowly enough drawn because it put most subjects of interest to the voters off limits. See the ruling in Republican Party of Minnesota vs. White.