Shearing says election speech rule is valid

Thursday, July 1, 2004 | 9:46 a.m.

CARSON CITY -- Chief Justice Miriam Shearing says the canon of the Nevada Supreme Court, which limits what a judicial candidate can talk about in an election campaign, is "murky" but does not violate a free-speech ruling by the U.S. Supreme Court.

But her fellow justices are looking at the canon "primarily to make it clear to judges what they can and cannot say," and the court will consider the issue at its meeting this month.

Two organizations are pushing for changes to be made prior to the election.

The Nevada Policy Research Institute on Wednesday called upon the Nevada Supreme Court to change its canons so that voters can learn where judicial candidates stand on critical issues.

The institute, a conservative-leaning organization, quoted from a 2002 decision by the U.S. Supreme Court in a Minnesota case that said a canon of judicial conduct prohibiting candidates for judicial election from announcing their view on disputed legal and political issues violates the First Amendment.

Ranson Webster, chairman of the institute, said in a news release that the failure of the Nevada Supreme Court to act means "state voters will be seriously hindered in their efforts to learn the judicial philosophies of the candidates they are being asked to choose between."

The Nevada canon prohibits a candidate from making statements that "commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court," Shearing said.

"This is quite different than Minnesota," she said. The U.S. Supreme Court did not rule on the Minnesota canon that prohibits a candidate from pledging or promising a certain course of action, said Shearing.

Last month, a group called Nevadans' Judicial Information Committee asked the Secretary of State's Office to petition the attorney general for a legal opinion on changing the judicial code to eliminate the so-called "gag order" on candidates for elective judicial offices.

The attorney general has not yet offered an opinion whether the secretary of state has authority over the judicial canon.

Shearing said that as soon as the U.S. Supreme Court issued its decision in the Minnesota case two years ago, the Nevada court looked at its canon of judicial conduct "and ours conforms to the Supreme Court opinion."

"We do not feel we need to withdraw our present canon in view of the (U.S.) Supreme Court," she said. Shearing added that the court wants to clarify what statements can be made by a candidate.

The chief justice says no one has been cited or disciplined so far for making statements. The state Judicial Discipline Commission would handle those cases.

The court has received suggestions from the discipline commission and the committee on election practices on changing the language in the canons. But the potential changing of any canon is "is not a top priority," said Shearing.

She said the court was "buried" with other business such as deciding cases.