The Blue Grass Report just posted a 'scoop' on a law suit filed by Northern Kentucky Supreme Court Candidate Marcus Carey claiming deprivation of his Constitutional rights for not being allowed to run as a party member and discuss issues that might come before the Supreme Court.
Carey, who practices law in Owen County, faces a tough fight against Schroder, who is from the more populous Kenton County. They seek to represent the 6th Supreme Court district, which includes 20 counties in Northern Kentucky.
Carey also must fend off negative publicity from a March 31 story in the Kentucky Enquirer, which disclosed that when he was 18, he was convicted of negligent homicide in a wreck that claimed the life of his 16-year-old passenger. Carey was sentenced to one year in prison but received probation after serving a month in jail.
He admitted drinking a beer at a graduation party before the accident but was not charged with driving under the influence.
In an interview, Carey said that if he prevails in the lawsuit, "I don't think it will give me any advantage that it doesn't give my opponent." [from Courier-Journal story, Judicial candidate rules challenged, 6/12/2006, updated].
Nicholas has not only posted the story and commentary with links to his earlier stories on Mr. Carey's campaign, but has gone one step further and posted a copy of the complaint and exhibits filed in federal court.
Who is/are the defendants you might ask? The members of the Kentucky Judicial Conduct Commission and the KBA's Bar Counsel, Linda Gosnell.
Per the Verified Complaint,
19. Plaintiff Marcus Carey is a candidate for election to the Supreme Court of Kentucky horn the Sixth Appellate District of the Commonwealth of Kentucky. Mr. Carey wants to answer certain Questions announcing his views on disputed legal and political issues by posting his responses on his website. He also wants to pose those questions to other judicial candidates.
20. Mr. Carey also wants to state his political party affiliation, seek endorsements from other political officials, and solicit individuals for contributions during his campaign.
This lawsuit is not to be taken lightly. Counsel representing Marcus Carey include Benjamin Cowgill, former Kentucky Bar Association General Counsel, and James Bopp, Jr., with the James Madison Center for Free Speech who successfully argued the Supreme Court case of Republican Party of Minnesota vs White.
Here is a link to the posting from www.BlueGrassReport.org with a short intro paragraph. Click on the heading for the entire story (plus links to the complaint and another news story from the main stream media).
***SPECIAL REPORT*** Supreme Court Candidate Marcus Carey Files Desperate Federal Lawsuit Against Judicial Conduct Commission For Not Being Allowed To Run As A Republican And Discuss Issues That Might Come Before The Court
Demonstrating again that he does not have the right temperament, or ability to follow the rules, to sit on the Kentucky Supreme Court, BluegrassReport.org has learned that former 4th Congressional District Republican Chairman and Supreme Court candidate Marcus Carey on Friday filed a federal lawsuit (see below) against members of the Kentucky Judicial Conduct Commission claiming his free speech is being violate by not being allowed to run as a Republican (judicial races are non-partisan per our constitution) and discuss the issues that may come before the court.* * *
Click here to read Carey's lawsuit. You will have to click separately to access Exhibits A, B, C, D, E, F and G to the complaint.
UPDATE from the Blue Grass Report: It's not much, but the Herald-Leader just posted a news brief on its website about this.
Kentucky Law Blog Comment:
Welcome to the 'new judicial political reality'. This is not the first judicial candidate campaign lawsuit filed this election season with Jack Wood filing a lawsuit in Jefferson Circuit Court in his Family Court Judge race to keep the other candidates off the ballot due to a perceived confusion on the actual court designation (for example,"Ten" vs. "10").
Rather than a direct assault on the candidate being listed on the ballot, this lawsuit is a declaratory judgment action seeking a determination on his judicial campaign speech. The line between candidate and litigant is getting blurred in our judicial elections with each lawsuit chipping away at the reputation of our courts since it rides on the reputation of the candidates and the conduct of their campaign.
However, our country is a nation of laws, and the laws are available to all, and all are equal under the law. So, let's wait and see what develops. . . .
By the way, here is the press release from Mr. Bopp's office and the James Madison Center for Free Speech:
Kentucky Rules Prohibiting Judicial Candidates' Speech Challenged
Judicial candidate Marcus Carey filed suit today in federal court to block enforcement of Kentucky judicial canons that forbid state court judicial candidates from answering questions asking for their views on legal and political issues. Mr. Carey also brought suit against three other judicial canons that prohibit judicial candidates from endorsing other political candidates, from making phone calls and sending personal letters seeking contributions, and from stating their party affiliation while campaigning. The suit was filed in the U.S. District Court for the Eastern District of Kentucky in Frankfort. The case was brought against members of the Kentucky Judicial Conduct Commission and members of the Inquiry Commission and Kentucky State Bar Counsel – entities charged with disciplining judges and lawyers who violate the judicial canons of Kentucky and the Commonwealth's Rules of Professional Conduct.
Mr. Carey has a list of questions he would like to answer and submit to other judicial candidates to answer. The questions inquire about Mr. Carey's views on policies and court decisions related to judicial ethics, religion in schools and the courtroom, same-sex marriage, and various other issues. Mr. Carey will not answer the questions because he believes doing so would violate the Kentucky canons governing judicial candidates' speech.
Mr. Carey would also like to use any endorsements that political candidates who support his candidacy might make and to state his views by letting the public know his party affiliation so that voters might know his qualifications and views. Likewise, he would like to personally solicit funds from those who wish to support him by making phone calls and sending out letters.The United States Supreme Court has held unconstitutional a Minnesota rule that prohibited judicial candidates from "announc[ing] their views on disputed legal or political issues." But the Kentucky canons and advisory opinions promulgated by the Kentucky Judicial Ethics Advisory Panel, which forbid judicial candidates from being perceived as committing on an issue that might come before them as a judge, have also been used to prevent judicial candidates from announcing their views on issues. In addition, the canons and advisory opinions restrict judicial candidates from personally soliciting funds, using endorsements, or stating a party affiliation.
According to attorney James Bopp, Jr., lead counsel for the plaintiffs, "these canons are in direct violation of the U.S. Supreme Court's ruling in 2002. Judicial candidates' free speech rights are being unconstitutionally restricted and voters are being deprived of their right to cast an informed vote." He continues, "judicial candidates have a right to announce their views by answering questions and stating their party affiliation, and to seek individual and financial support during their campaign." Mr. Bopp successfully argued the case challenging the Minnesota judicial rule struck down by the U.S. Supreme Court in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).Mr. Carey has asked for a preliminary injunction so that he, along with other judicial candidates, may state their views and seek support throughout their campaign before the November 2006 general election.
The case is Carey v. Wolnitizek, et al., Civil Action Number 3:06-CV-36-KKC. The complaint and memorandum supporting the motion for preliminary injunction will be made available in PDF format online at the James Madison Center's website, www.jamesmadisoncenter.org , under the "Judicial Accountability Project" link.
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.
UPDATED with link to Herald Leader AP story:
Lawsuit challenges rule restricting judicial candidate comments
BRUCE SCHREINER
Associated Press
LOUISVILLE, Ky. - A Kentucky Supreme Court candidate has asked a federal judge to strike down a rule that he says prohibits him declaring his views on such legal issues as abortion, gay marriage and the role of religion in schools.Marcus Carey, a candidate for the 6th District seat on the high court, argues that the rule puts a chilling effect on judicial candidates' free-speech rights.
In his lawsuit, the northern Kentucky lawyer seeks an order striking down other rules that he contends keeps him from seeking endorsements and personally soliciting campaign funds. He also wants to tell voters his party affiliation. He contends those prohibitions also violate free-speech rights.
The lawsuit, filed late last week in U.S. District Court in Frankfort, names members of the Kentucky Judicial Conduct Commission as among the defendants.
The suit also seeks injunctions to prevent the rules from being enforced.
Carey's suit, if successful, could drastically alter traditionally staid judicial campaigns this fall, allowing candidates to more fully discuss their views on legal issues. This year's ballot includes numerous judicial elections.
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