Free speech and judicial discipline

The Nevada Judicial Discipline Commission has charged Clark County District Judge Lee Gates with two counts of making improper contributions to the 2004 campaigns of fellow jurists.

The complaint, filed Nov. 2 by commission special prosecutor Dorothy Nash Holmes, asserts Judge Gates contributed $5,000 to Las Vegas Justice of the Peace Karen Bennett-Haron and $5,000 to Supreme Court Justice Michael Douglas.

Both Ms. Bennett-Haron and Justice Douglas reported the Gates contributions on their reports filed with the secretary of state’s office. But the complaint charges Judge Gates did not report either contribution on his own financial report.

The complaint also charges that Judge Gates told the discipline commission conflicting stories about the contribution to Ms. Bennett-Haron, first maintaining the contribution was made at the direction of his wife, former Clark County Commissioner Yvonne Atkinson Gates, while saying at another time that he made it at his own discretion.

After the investigation was under way, Judge Gates amended his 2005 campaign expense report to reflect the contribution to Justice Douglas, and filed a 2006 campaign report showing a personal loan of $10,600 to his campaign account to cover the two contributions.

Now, first let’s stipulate that — even if the commission can prove everything they allege, here — none of these activities rises to a level that could be called bribery or corruption. Yes, the commission has a duty to probe discrepancies in the handling of judicial campaign funds, and an experienced, sitting judge ought to know what he can do with those monies and how they must be reported. But — while it sure does look sloppy — no evidence presented indicates unfitness for office.

Rather, the big source of concern here is Ms. Holmes’ second assertion, that Judge Gates’ contributions violated the judicial canon against endorsing other judicial candidates, since in Nevada a donation of $100 or more to a candidate constitutes an endorsement.

That’s ridiculous.

In 2002, in the case of the Republican Party of Minnesota v. White, the U.S. Supreme Court voided limitations in 30 states on judicial candidates revealing their legal or political views. Since then, the court has let stand a lower court decision out of Minnesota that threw out local rules preventing candidates for the bench from participating in partisan political activities and certain fund-raising efforts

Those rulings telegraphed to states in which judges are elected — including Nevada — that they risk running afoul of the First Amendment if they attempt to gag judicial candidates in the interest of “propriety,” thus keeping voters ignorant in the name of election reform.

In fact, the Nevada Supreme Court changed its own rules last year to reflect this, stating any limit on contributions that are legal under state and federal law would be a violation of the judge or judicial candidate’s free-speech rights.

Furthermore, the state Supreme Court held, “A judge or judicial candidate’s donation to a candidate or political organization that is otherwise permitted by state or federal law is not considered a public endorsement of a candidate for political office.”

Yes, Judge Gates’ donations were made before that was written. But when a court throws out a law for violating the Constitution, that law should be considered invalid from its inception.

“The U.S. Supreme Court has been quite clear in the White ruling on the free speech rights of judicial candidates,” comments Allen Lichtenstein, general counsel for the ACLU of Nevada, on Ms. Holmes’ decision to include the “endorsement” charges,

“The Nevada Supreme Court has showed in their new rules that they are cognizant of that as well,” Mr. Lichtenstein continues. “Why the commission has taken this action, at least to me, is somewhat of a mystery.”

On his use of surplus campaign funds and retroactive bookkeeping, Judge Gates may have some explaining to do. But when it comes to assertions that he “endorsed” other judicial candidates, it’s the discipline commission that would appear to be out of line.

The courts have ruled that putting on a black robe doesn’t automatically remove a judge’s rights to free speech and political activity.

Others are free to criticize Judge Gates’ choices as to whom he supports. But not to take away his right to choose, or to talk about it.