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Ruling lets judges speak their minds outside court

Posted: Friday, August 19, 2005

ANCHORAGE - A law prohibiting state judges from stating opinions on controversial issues beyond the courtroom is unconstitutional, according to a ruling by a federal judge in Anchorage.

U.S. District Judge Ralph Beistline said the rule banning judges from announcing their views on disputed political, legal and social issues is a violation of the First Amendment.

"This is a matter that is better left to the sound discretion of each judge," Beistline wrote in his opinion. The July 29 decision was released earlier this month.

The federal ruling stems from a 2004 lawsuit brought against the state by Alaska Right to Life, which asked judges in a questionnaire before the 2002 election to take a position on abortion.

The questionnaire asked judges whether they believed Roe v. Wade was wrongly decided, and where they stood on abortions in cases of rape and incest and where birth might result in death of the mother, said Will Sherman, an attorney and board member for the group, Alaska Right to Life.

Some judges wrote back that their code of ethics did not permit a response, Sherman said.

The group's political action committee sued the state in U.S. District Court, claiming the rule improperly limited a judge's right to free speech under the First Amendment. No judges joined the suit.

Sherman said Wednesday that Alaska Right to Life, which claims 50,000 members, is thrilled about the decision and plans to send questionnaires to judges in 2006.

Similar rulings have been handed down in three other states, Sherman said..

The Alaska Judicial Conduct Commission, which monitors judicial behavior, says judges should not take public stands on political issues because they could be disqualified from handling cases involving those issues.

"The role of the judge is to hear each individual case on its own merits and not prejudge," Marla Greenstein, executive director of the Conduct Commission, said Wednesday. Expressing such opinions publicly is equivalent to prejudging, she said.

Greenstein said she hopes judges will continue to operate under the old rule and not take public stands.

In his decision, Beistline made clear that judges are free to make their own decisions on the issue.

"There is nothing ... that requires any judge standing for retention to respond to any questionnaires or surveys," said Beistline, formerly a state judge in Fairbanks.

On Tuesday, the Judicial Conduct Commission three Alaska lawyers and three public members, asked Gov. Frank Murkowski's administration to appeal the ruling. The Department of Law will make a decision in the next month, a spokesman said.



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