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Legal Ethics

Kansas High Court Asked to Decide: Can Judges Fill Out Questionnaires?

Posted Sep 5, 2008 4:14 PM CDT
By Martha Neil

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A federal court has asked the Kansas Supreme Court to weigh in on a question of state law: Can state judges ethically fill out questionnaires that ask them about their opinions on issues that are likely to come before them? On the one hand, judges have a First Amendment right to free speech. But, on the other, the Constitution requires that defendants who come before them get a fair trial.

"This is a clash of constitutional rights, no doubt about it," attorney George Patton, who represents the Kansas Commission on Judicial Qualifications, tells the Associated Press.

A 2002 decision by the U.S. Supreme Court would seem to weigh on the side of Kansas Judicial Watch, which is trying to get state judges to fill out questionnaires asking them about their views on topics such as abortion, pornography and same-sex marriage, according to the news agency. However, the commission is appealing an injunction issued by a federal judge in Topeka that bars it from enforcing ethical rules that could prohibit state judges from answering the questions.

The situation is complicated because the commission has revised the ethical canons for Kansas judges to conform with the 2002 decision in Minnesota Republican Party v. White, and the state supreme court hasn't yet approved them.

Hence, a federal appeals court in Denver has now requested that the state supreme court clarify the ethical rules that apply before it decides the case.

Under the proposed new rules, "judges would be able to answer questions about issues so that they would not be construed by a reasonable person to be taken as a promise or pledge to rule a given way," the AP article states.

Related coverage:

ABAJournal.com: "Ex-Gov: Constitution Could Express Public Distaste for Judge Campaign Statements"

Updated at 5:30 p.m., central time, to add related coverage link.

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