Judge not...

Striking a balance between free speech rights and judicial ethics


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How do candidates for judicial office let voters know who they are and where they stand on the issues without running afoul of their own profession’s rules of conduct, which effectively restrict the free speech rights guaranteed to all Americans?

That’s the issue currently before the U.S. Supreme Court in Republican Party of Minnesota vs. Verna Kelly, et al. Closer to home it’s also a question that has dogged the district court judge’s race now underway in Ravalli County.

In the Supreme Court case, where oral arguments were heard in March, the question is whether the Minnesota Code of Judicial Conduct, which prohibits a candidate for judicial office from announcing his or her views on disputed legal or political issues, violates the candidate’s constitutional guarantee of free speech. The case centers around Gregory Wersal, a Minnesota lawyer who campaigned for an associate justice seat on the Minnesota Supreme Court in 1998. He argues that his right to communicate his political views to the voters of Minnesota was infringed by Minnesota’s code of conduct for judicial candidates. A ruling in that case is expected this summer.

A similar situation—though one lacking some of the drama of a Supreme Court case—is now playing out in Ravalli County where two local attorneys have filed for a newly established position of district court judge. Lawyers in western Montana are closely following the campaign being waged by Hamilton City Attorney Jim Haynes and Ravalli County Deputy Prosecutor T. Geoff Mahar.

Interest in this two-man race is keen, in part because judicial campaigns are rarely contested and, for the most part, are usually dull affairs.

In most judicial races candidates typically refrain from announcing their own views on political or legal issues because their professions’ canon of ethics precludes them from doing so. And for good reason: Judges are expected to be fair and impartial. Announcing one’s political views before an election could compromise judicial impartiality and, perhaps more seriously, undermine the public’s respect for and faith in the judiciary, a cornerstone of our democratic system of governance.

In his campaign Haynes has touted his 20-year experience in practicing law in Ravalli County, but has stopped short of announcing his personal views on political issues. Mahar, on the other hand, has made his own political views well known in a variety of campaign venues. It is Mahar’s identification with the Republican Party and with conservative, Christian politics that has garnered him the support of, among others, Ravalli County’s self-appointed moral crusader, Dallas Erickson. Mahar’s alignment with the Republican Party in a non-partisan election has also raised eyebrows and alarm among some members of Ravalli County’s legal community. In the past few weeks the Independent spoke with nearly two dozen lawyers, legal secretaries and judges about the ethical questions raised by Mahar’s outspoken and unconventional campaign. None, however, would speak on the record, fearing for the future of their own legal relationships with Mahar should he be elected or, considering his current status as a prosecutor, even if he isn’t. Privately, however, all express apprehensions about the degree of Mahar’s outspokenness.

Mahar himself has ignored repeated requests to be interviewed. What follows is an account of some of his campaign tactics as reported to the Independent by several Bitterroot Valley attorneys, legal secretaries and clerks.

Mahar’s campaign first came to the attention of local lawyers in November 2001 in Stevensville at a meeting of a Republican organization called the Pachyderm North Club.

According to one observer, Mahar spoke for about 20 minutes, primarily about his prosecution of sex offense cases. Sex—as a criminal activity and as a newsstand consumer item—is a perennial hot-button issue in Ravalli County, thanks in large measure to Erickson, who has tried (thus far unsuccessfully) to outlaw any form of obscenity in the county, and to Mahar, who characterizes himself as vigorous prosecutor of sex offenders. (Ravalli County court records show that sex crimes are not on the rise in the Bitterroot. In 1990, when the county’s population stood at 25,000, there were eight felony sex crimes prosecuted. In 2000, when the population had increased to 36,000, there were a total of seven such crimes.)

Following his talk to the Pachyderm North group, Mahar fielded questions from Erickson and Erickson’s associate, Harris Himes, a pastor at the fundamentalist Big Sky Christian Center in Hamilton, who is also a Mahar campaign contributor and an attorney licensed to practice law in California. Mahar informed the group that he is pro-life and believes that homosexuality is a sin against God. Mahar also asserted at that meeting that he finds sex crimes so disturbing that he would have trouble judging them fairly, and that, if elected, he would likely have to hand those crimes over to incumbent Judge Jeff Langton.

In January, Mahar joined other pro-life advocates at an annual Right-to-Life march through Hamilton, apparently aligning himself with a political group in direct violation of his profession’s Code of Judicial Conduct. Identifying himself so strongly with a conservative, religious political organization rankled many lawyers in Hamilton, who call it a clear violation of professional ethics.

“I’m not comfortable with a judicial candidate who appears to have his mind made up on certain issues,” says one Bitterroot Valley attorney, who asked not to be identified. “That’s wholly inappropriate for a judicial candidate. And I’d like to know who he’s going to ‘get tough’ with,” referring to Mahar’s campaign slogan. “Widows in probate court?”

But Mahar’s political activity didn’t cause quite the alarm as did his recent statement to the Ravalli Republic newspaper in Hamilton, in which Mahar openly disparaged the Montana Supreme Court in general, and Justice Patricia Cotter in particular.

Last month the Montana Supreme Court overturned the felony theft conviction of a Darby man Mahar had prosecuted two years earlier. Cotter, who wrote the opinion for the majority, stated that the prosecution had failed to show that the stolen item—a masonry saw—was valued at more than $500, which at the time was the threshold for a crime to be charged as a felony. Mahar took exception to the court’s ruling, and told a Hamilton reporter that the court had put an unfair burden on the state. “The Supreme Court has worked hard at letting another convicted felon go,” he told the Republic. “Justice Cotter let another one of our convicted felons go. That isn’t right.”

While such comments might not seem like a big deal to non-lawyers, the American Bar Association (ABA) and the dean of the University of Montana School of Law take such comments very seriously.

Lawyers, because of their “special knowledge,” are uniquely qualified to assess a judge’s performance, writes the ABA. The public tends to believe what a lawyer says about a judge, “even when the lawyers speak inappropriately or make claims about which they are uncertain,” reads the ABA’s Annotated Model Rules of Professional Conduct. “Therefore, it is argued, maintenance of public confidence in the judiciary requires that lawyers be held to a higher standard of conduct.”

Apparently, UM Law School Dean E. Edwin Eck concurs. In a March 1999 memo to UM law students and faculty, Eck takes on the issue of attorney criticism of judges and free speech. Like the ABA, Eck comes down on the side of caution and propriety.

“To avoid disciplinary sanctions lawyers need generally to adhere to the minimum standards of professionalism,” Eck wrote. Noting that “judges do not have the same means to refute charges in the press as do their accusers,” he recommends lawyerly prudence. “I suggest that we should hold ourselves to a higher standard. Self-restraint and prudent commentary will advance our profession and enable the courts to better serve the public.”

Mahar’s more controversial campaign tactics—his pro-life endorsement, his equating of homosexuality with sin, and his criticism of a Supreme Court—may prove popular with more conservative and religious voter, who may well ask: “What, exactly, is wrong with a candidate for judge announcing his political views during the campaign?”

The short answer is, plenty. The thorny issue of free speech vs. professional ethics has been bounced around in state and federal courts for years. The case of Republican Party of Minnesota vs. Kelly is hardly the first time this issue has surfaced in court.

The courts have attempted to reconcile free speech with professional conduct codes. The ABA’s Annotated Model Rules of Professional Conduct cites numerous court cases dealing with lawyers’ rights and obligations. In New York Times vs. Sullivan, a 1964 case, the U.S. Supreme Court declared that public debate should be “uninhibited, robust and wide-open.” But it had not ruled on the constitutional question of “whether, and how, ethical constraints on lawyer criticism of judges and legal officers are to be interpreted in light of the free speech guarantee.” But as Charles W. Wolfram noted in Modern Legal Ethics: “[L]awyers of a flamboyant turn of phrase should be aware that a disturbing number of decisions show open judicial hostility toward claims of First Amendment protection for strongly worded lawyer criticism of judges.”

Though the courts have attempted to reconcile the free speech guarantee with the legal profession’s self-imposed restrictions on speech, those rulings have been anything but consistent. For example, in 1991 the Pennsylvania Supreme Court held that the canons’ “pledges and promises” language did not violate the First Amendment rights of judicial candidates. Two years later the Illinois Supreme Court ruled that it did.

One rule in the Montana Supreme Court-adopted Canons of Judicial Ethics, titled “Candidacy for Office,” states: “A candidate for judicial position should not make or suffer others to make for him promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce his conclusions of law on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that if chosen he will administer his oath of office with bias, partiality or improper discrimination.”

The “Partisan Politics” canon further states: “While entitled to entertain his personal views of political questions, and while not required to surrender his rights or opinions as a citizen, it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes the active promoter of the interests of one political party as against another.”

The Code of Judicial Ethics puts it even more bluntly: A candidate for judicial office “shall not attend political gatherings.” Nor, the Code states, shall a candidate “make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

As for legal recourse, any citizen can file a complaint against a licensed attorney in Montana. If the attorney is running for judicial office but has not yet been elected (or if elected but not yet seated), the complaint is filed with the Commission on Practice, an arm of the Montana Supreme Court. If the 11-member commission finds sufficient evidence of wrongdoing, an investigation ensues and a recommendation for formal hearing is sent on to the Montana Supreme Court. Following a public hearing the court may punish the offending lawyer in any number of ways, from a letter of admonition to suspension to, in rare instances, disbarment.

All this legal hand-wringing is not as abstract as it may appear. There are many real-life scenarios that could be affected by a judicial candidate who personal bias has been revealed beforehand.

Betsy Brandborg, counsel for the Montana Bar Association in Helena, offers up one of any number of plausible scenarios: A young girl is raped by a brother or father and impregnated. The fact that she is so young makes a healthy pregnancy unlikely, indeed, it puts her own life at considerable risk. Medical experts testify that the chances are good that she will die during childbirth. She, or her guardian, seeks an abortion ruling from a district judge. Will society’s interests, or the child victim’s welfare, be served in a case in which the judge has already publicly declared his opposition to abortion?

“Does that really mean that he’s saying he’s against abortion, that he wouldn’t let a child who’s been raped by her brother or father have an abortion when all the experts say the birth of that child will kill the [impregnated] child? Who would want to require that child to bear a child and cause her extreme danger?” Brandborg asks. “That’s the power this person has, and people really need to understand the power judges have.”

Mahar’s challenger, Jim Haynes, also wonders about the ramifications of a judicial candidate openly declaring his political views. Like Brandborg, he, too, has a case in mind, though hardly a hypothetical one. More than a dozen years ago the civil trial of Deborah Case vs. Frances May was held in Hamilton. Believed to be the longest civil trial in Ravalli County history, it was, for all intents and purposes, a palimony lawsuit between two lesbians. Would their case have been heard fairly by a judge who has publicly declared their lives to be a sin against God, Haynes asks. “If you broadly prejudge something like homosexuality, would a homosexual get a fair hearing in front of Judge Mahar?”

Brandborg agrees. “Sometimes you just can’t broad-brush it,” she says. “Judges need to exercise common sense and good reasoning, and to take positions that may not be popular.”

Though Mahar may have violated the legal profession’s ethics codes, ironically, it is Haynes who may find himself on the defensive in this race. Haynes’s credentials are impressive. The Hamilton City Attorney is a former smokejumper, a former county prosecutor, public defender, a justice of the peace, and an appointee to the U.S. military academy at West Point. Haynes was also co-counsel in a case that won him widespread approval by Bitterrooters: He represented former Sheriff Jay Printz in his successful U.S. Supreme Court challenge to the Brady handgun control bill.

Still, Haynes declines to discuss his own political views on all the hot issues—and even the lukewarm ones. Compared to his challenger, this may put Haynes at a distinct political disadvantage in conservative Ravalli County, although he doesn’t think so.

“I absolutely agree with the ethical view of the profession, because announcing your views and aligning yourself with a political platform or a hotly disputed moral issue creates this evil that’s an expectation that if elected you’ll do all you can [for your political supporters,]” he says. But Haynes may be vulnerable in another way. In 1990 he ran as a Democrat for the Montana Legislature against long-time Republican incumbent Bernie Swift. Haynes lost, but memories do linger in a county that grows more conservative with the passage of time. In Ravalli County, the label “Democrat” has become practically synonymous with being pro-choice, pro-homosexual rights, and pro-gun control.

No one has hounded Haynes more about this legislative race of 12 years ago than Dallas Erickson. In frequent letters to the editor, Erickson never misses an opportunity to attack Haynes as a political liberal. “The fact is,” he wrote recently, “Jim Haynes is a liberal, pro-abortion Democrat who is trying to pass himself off as a conservative Republican...”

Haynes shrugs off such criticisms as just another Dallas Erickson diatribe. “The real issue to me is not whether you’re a Republican or a Democrat,” he says. “I really think I’m more conservative in my approach, because a true conservative takes responsibility for his actions and holds others accountable for their actions.”

Himes, the pastor of the Big Sky Christian Center in Hamilton, is a Mahar supporter. Not only did he contribute to his campaign, but the Big Sky Christian Center was the venue for a Mahar fundraiser that brought in nearly $400 in March. Himes, a California-licensed attorney who received his law degree from a non-accredited law school, is also assisting Ravalli County in its appeal to the Montana Supreme Court of three obscenity ordinances that were struck down by Judge Langton. As a result, it is widely believed in Ravalli County legal circles that Langton has been targeted for ouster by Erickson and his supporters, in large part because of his ruling on the obscenity ordinances. The phrase now buzzing around Langton’s head is “activist judge.”

Haynes is quick to dismiss Erickson’s and Himes’s campaign against him. The two have made Haynes’s previous Democratic race a factor in this non-partisan race “by promoting the notion that we need a judge who will uphold obscenity laws. It’s an intellectually dishonest motive that’s being promoted for political reasons.”

It’s not only Himes and Erickson who have Haynes in their sights, however. Last February Haynes received an anonymous call from a woman upset about the “rumors that the Christian Right were (sic) spreading,” according to written notes Haynes kept. The woman, who spent an hour-and-a-half on the phone talking and praying with Haynes’ wife, said she’d been invited to a Mahar fundraiser, the point of which was to oppose Haynes “because he supports homosexuality and abortions.”

Aligning himself with the conservative wing of the Republican Party, as Haynes believes Mahar has done in this campaign, leaves the party faithful with an expectation—whether real or perceived—that they may someday benefit from their support with a political payback from the bench.

“Judges are supposed to protect and serve the constitution and if you politicize these principles, then one by one [constitutional rights], like dominoes, fall,” says Haynes. “Your personal views aren’t relevant, and they’re not [valid reasons] on which to base your choice for judge. The relevant question is, can you follow the law as written?”

One of the more disturbing aspects of Mahar’s political frankness, says the Bar Association’s Brandborg, is that it undermines the public’s respect for the judiciary. When a lawyer directs a disrespectful remark against a judge, as Mahar has done against Justice Cotter, he may be appealing to the baser instincts of those who believe the Supreme Court has issued too many liberal rulings. But, says Brandborg, he also shows disrespect for the structure of government. The American system of government depends for its success, in part, on public acceptance of judicial rulings, no matter how unpopular or controversial. Undermine those principles, she says, and anarchy will not be far behind. “It’s called respect for the system we have,” she says. Lawyers, she adds, “are not supposed to be tearing down their own houses.”

On a more practical level, announcing political views can result in too many requests from lawyers that the judge step down, or recuse himself from a case.

Retired District Judge Robert Keller of Libby says that a judge can be disqualified from a case if he or she has made views known on political matters that may end up before the court.

“When you’ve already told me how you’re going to do on the case, you’re knocked off,” he says. “From a lawyer’s standpoint, if he doesn’t get rid of that judge, that lawyer is looking at a malpractice suit…You’d like to think everyone going in there is going in with an open mind. Their position should be, ‘I’m going to be open-minded and listen to both sides.’”

Perhaps. In a perfect world, everyone would hope that judges and lawyers go into each case with an open mind, willing to listen to both sides of the argument.

But in our less-than-perfect democracy, where some voters are concerned solely with a single issue, and where the act of voting itself can be easily eclipsed by a night of mediocre television or a mild snowstorm, an open mind may be too much to ask.


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