Attempt to suspend Canon 3 rejected: case involved questionnaires mailed to judicial candidates.

An effort to suspend Canon 3 for this year's state judicial elections as part of an effort to allow judicial candidates to answer issue questionnaires has been dealt a severe blow.

U.S. District Judge Robert Hinkle held an evidentiary hearing October 4 and denied an injunction sought by the Florida Family Policy Council. The judge found that the recusal sections of Canon 3 of the Code of Judicial Conduct do not violate the First Amendment, as claimed by the FFPC.

FFPC President Stemberger said the group plans to seek an emergency appeal of Hinkle's decision to the 11th U.S. Circuit Court of Appeals.

The FFPC, along with the Christian Coalition, sent questionnaires to judicial candidates this year, asking their personal views on a variety of matters, including abortion and gay marriage.

Stemberger said the group was not asking candidates to commit how they would rule on those issues but only their views, which he said would lead to a better informed electorate. The questionnaires were sent to both trial court candidates and appellate judges up for merit retention on the November ballot.

Several candidates asked the Supreme Court's Judicial Ethics Advisory Committee for guidance. The JEAC issued an opinion saying candidates could answer the questions, as long as they specified they would follow the law on the bench, not their own personal opinions. The committee also cautioned that judges might have to recuse themselves if they got a case involving an issue where they had expressed a personal opinion during a campaign.

That prompted the FFPC to go to federal court, saying the part of Canon 3 dealing with recusals violated the First Amendment. It asked that the Judicial Qualifications Commission be prevented from taking any enforcement action on the recusal provision. The FFPC also named the Bar as a defendant, saying--erroneously--it investigated complaints for the JQC.

Judge Hinkle found the canon legal, and said other courts in other states have ruled similarly in recent years since the U.S. Supreme Court's ruling in Republican Party v. White, 536 U.S. 765 (2002). That opinion threw out some restrictions on what Minnesota judicial candidates could say.

"Florida does not prohibit judicial candidates from having or even expressing opinions, including on issues that might come before them. All the canon at issue requires is the disqualification of a judge if a reasonable person might question the judge's ability to keep an open mind...