Owen attorney, Supreme Court candidate, files suit

Alleges judicial rules violate his right to free speech

 

An Owen County attorney running for the 6th District Kentucky Supreme Court seat has filed a lawsuit contending that the state’s judicial ethics canons violate the right to free speech as guaranteed by the First Amendment for him, as well as for the other candidates for the 263 judicial races on the fall ballot.
Marcus Carey, of Poplar Grove, filed the lawsuit in U.S. District Court in Frankfort June 9. In the suit, he stated he wants to be able to state his views on political issues, share his policial party affilitation, seek endorsements and directly solicit contributions for his campaign. Judicial canons currently prohibit these acts. Carey also contends that voters should also know where candidates stand on the issues.
Carey’s lawsuit challenges a clause that resulted from a 2004 lawsuit filed by the Family Foundation. That suit challenged the judicial code’s “commit clause,” which prohibits judicial candidates from making statements that “commit” them to a particular stance on an issue. An injunction was issued in October 2004 barring the state Judicial Conduct Commission from enforcing the provision. The state Supreme Court changed the wording on the clause last fall.
It’s that change toward which Carey’s suit is directed. It states that candidates should not “intentionally or recklessly” make statements that a “reasonable person” would view as the candidate taking a stand. Carey’s suit states that the clause is confusing and judicial candidates are unsure what they can and can’t talk about.
Carey’s attorney, James Bopp Jr., filed the suit on behalf of the Family Foundation in 2004. He has also said the rewritten clause is vague and confusing.
And he states that the rules are similar to those that were stricken down in 2002 in the Eighth Circuit.
In that case, the U.S. Supreme Court ruled in 2002 that judges could talk about how they feel on certain issues. The case was sent back to the lower courts where additional provisions were also declared unconstitutional. Similar cases to Carey’s have been filed across the country.
Carey will face state Court of Appeals Judge Wil Schroder for the Kentucky Supreme Court seat in November. Carey’s last venture into judicial politics was in 1999 when he ran for the 15th District Circuit Judge’s seat against current Circuit Judge Stephen Bates.