Justices Take Campaign Ethics Case

The Supreme Court agreed Monday to decide an issue that goes to the heart of the current debate about state judicial elections: Do candidates for judgeships have a free-speech right to take stands on controversial issues?

Two-thirds of the states, including California, elect some or all of their judges. Yet by tradition and by law, these campaigns are staid, low-key affairs. Professional qualities and experience are emphasized, while a candidate’s party affiliation and ideological views are downplayed.

Most states enforce a judicial code of conduct that requires prospective judges to refrain from taking stands on “cases, controversies or issues” that might come before the court.

But in recent years, big-money campaigning and ideological politics have crept into judicial elections in a number of states, particularly in the South and the Midwest.

Business groups have funded candidates who sought to oust state Supreme Court judges who were seen as too sympathetic to plaintiffs and trial lawyers. The trend toward more openly partisan and ideological campaigns has run squarely into the judicial tradition of keeping politics at arm’s length. Republican party lawyers and anti-abortion advocates brought the issue to the high court this fall in a case from Minnesota.

Gregory Wersal, a Minneapolis-area lawyer and an active Republican, ran for a state Supreme Court seat in 1996 and 1998, stressing his party affiliation. He also issued statements criticizing decisions of the Minnesota Supreme Court concerning issues such as crime, welfare and abortion, saying they were marked by a “lack of common sense.”

An ethics complaint was filed against Wersal, and he responded by filing a lawsuit to challenge the state’s judicial code of conduct.

A U.S. Court of Appeals rejected his free-speech claim. Judges are different from politicians, wrote Judge John Gibbons for the court. Candidates for the state Legislature and the governor’s office need to tell the voters about their views. However, “a state may determine . . . this mode of campaigning . . . is fundamentally at odds with the judge’s obligation to render impartial decisions based on the law and the facts.”

But the state’s Republican Party appealed on Wersal’s behalf, arguing that the state made the choice to elect its judges.

The case of Republican Party of Minnesota vs. Kelly (01-521) will be argued early next year.

Meanwhile, the court refused to revive anti-monopoly rules in the cable television industry. In March, the U.S. Court of Appeals in Washington struck down a federal regulation that prohibited companies from acquiring more than 30% of the national cable TV market. The limit had been challenged on free-speech grounds by AT&T; Corp. and AOL Time Warner Inc.

Congress had told the Federal Communications Commission to set “reasonable limits” on the number of households served by a single cable TV company, and the FCC under the Clinton administration decided on the 30% limit.

But the appeals court said the regulators had not justified their choice, and the FCC, now led by Bush administration officials, said recently it is reconsidering the limit.

Although several consumer groups urged the justices to take up the issue, the court turned away the appeal (Consumer Federation of America vs. FCC, 01-223).

In another case, the justices said they will take up an important issue on the scope of the anti-age bias law.

Sometimes, older workers sue their employers because they have evidence that they were singled out for firings or demotions because of their age. In other instances, their legal claims rely on statistics that suggest that firings or layoffs targeted older workers.

The second kind of claims are more controversial because plaintiffs do not prove their employers were truly biased against older workers. Rather, they seek to prove their actions had an unfair impact on older workers.

Some lower courts have allowed these so-called “disparate impact” lawsuits to go to trial. Other courts have thrown them out because they lack proof of actual discrimination.

The high court agreed to decide the issue in a lawsuit brought on behalf of 117 older employees of Florida Power Corp. who lost their jobs amid several reorganizations.

The justices voted to hear the case, Adams vs. Florida Power Corp. (01-584), early next year.