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N.Y. judicial candidates can use 'law and order' label

By The Associated Press

07.02.02

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ALBANY, N.Y. — It is fair game for someone running for judicial office in New York state to call themselves "law and order" candidates, the state's highest court ruled yesterday.

The Court of Appeals overturned part of a determination by the state Commission on Judicial Conduct that resulted in an admonishment against Elizabeth Shanley, a Esopus town court justice in Ulster County.

The commission said Shanley should not have used the language in campaign literature in 1999 because "law and order" implied she would be pro-prosecutor and anti-defendant if elected to the bench.

It violates ethical rules in New York state for judicial candidates to make pledges or promises that indicate how they would rule on cases or act toward certain kinds of defendants in the courtroom.

But in an unsigned ruling, the Court of Appeals said "law and order" is a phrase "widely and indiscriminately used in everyday parlance and election campaigns." The judges said they were declining to treat it as an impermissible campaign promise.

Commission lawyers had noted that the phrase has a long association with politics and campaign rhetoric. They noted that former President Richard Nixon helped get elected in 1968 promising to appoint "law and order" judges to get tougher with criminal defendants.

"'Law and order candidate' sounded to me like an implied promise of future conduct," said Gerald Stern, administrator of the Commission on Judicial Conduct.

The court's ruling yesterday came just a few days after the U.S. Supreme Court handed down what may prove to be a landmark ruling in the area of judicial campaigns. The federal court, citing constitutional free-speech violations, ruled in Republican Party of Minnesota v. Kelly that judges should be allowed to speak more freely during campaigns.

New York is one of about 40 states that tightly restrict what judicial candidates can and cannot say.

"Both decisions ... will permit judges to do more than I thought judges could do," Stern said yesterday. "Certainly, it's going to increase the amount of rhetoric, but not to the point, we hope, that judges in New York will be making pledges or promises for votes or committing themselves to specific positions."

Stern conceded that more cases on permissible campaigning by judge candidates will be coming before the Commission on Judicial Conduct. Since 1997, the commission has sanctioned eight judicial candidates for improper conduct during campaigns.

Stern noted yesterday that during oral arguments in the Shanley case before the Court of Appeals in May, he was asked by judges whether he would consider the use of the phrase "tough on crime" by judicial candidates improper in addition to "law and order." Stern said he did.

Stern predicted that the U.S. Supreme Court and Court of Appeals rulings would move New York to appoint more judges because of uncertainty over proper and improper conduct during elections.

Shanley did not escape punishment by the commission. She was admonished for both the use of "law and order candidate" and for implying in campaign literature that she had graduated from legal coursework at Albany Law School and other institutions.

In reality, the courses were three-to-five day training sessions she attended as part of continuing education for county clerks, according to court papers. Shanley acknowledged she misstated the nature of the courses and did not challenge that part of the admonition ruling by the commission, which stood on yesterday.

Admonishment is a public slap on the wrist.

Shanley's lawyer, former state legislator Joseph Pisani, said today he was not surprised by the ruling.

"It was a correct decision," Pisani said. "I wouldn't have taken it (the case) up if I didn't feel that way."

The state Bar Association has also been working with state court administrators since 2001 on creating local judicial election oversight panels. Those boards could police elections of judges to keep out more extreme or suggestive rhetoric, state officials said.

Related

High court ruling may take luster off judiciary
Analysis Decision may signal turning point — the beginning of era in which judges are less special, more exposed to the popularizing glare of the First Amendment.  07.01.02

High court nixes limits on judicial candidates' speech
Justices say Minnesota's rules, while well-intended, impose an unconstitutional gag order.  06.27.02

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