Sparks were already flying in the Northern Kentucky Supreme Court race between Justice Michelle Keller and challenger Rep. Joe Fischer, R-Ft. Thomas, with allegations that he was “cheating” the state constitution’s requirement that judges be elected “on a nonpartisan basis.”
Now there’s a lawsuit.
But the lawsuit doesn’t pit candidate against candidate. Fischer filed a suit in federal court Tuesday against the Judicial Conduct Commission (JCC), the body responsible for investigating judicial misconduct, for allegedly violating his First Amendment rights in its investigation of the partisan nature of his campaign.
The JCC sent Fischer a letter dated Sep. 27 informing him of two complaints that have been filed against his campaign, claiming it’s been “inconsistent” with the integrity and independence of the judiciary. Similar complaints were lodged by Keller against Fischer’s campaign over the summer, as Fischer has been attempting to closely tie his campaign to the Republican Party – the GOP has traditionally done well in the region – despite the constitutionally-required nonpartisan nature of judicial elections in Kentucky.
The letter specifically states that allegations were made about Fischer’s campaign “publicly identifying” as the GOP nominee in the nonpartisan race, that he was “seeking, accepting, and using” endorsements from the GOP and that he has made commitments regarding abortion – a topic that is set to come before the Kentucky Supreme Court later this year.
Chris Wiest, a Northern Kentucky litigator known best for representing ‘Liberty’-aligned conservatives like Thomas Massie and Andrew Cooperrider challenging COVID-19 restrictions, has taken up Fischer’s case. He argues in the suit that Fischer’s right to do everything he’s done thus far on the campaign trail is protected by the First Amendment, and referenced a federal case from 2016 that struck down many of Kentucky’s judicial ethics rules as a case in point.
“They know that these restrictions are unconstitutional… I know that they don’t like voters being informed or judicial candidates talking about issues, but there is a well-established First Amendment right to do so,” Wiest told the Herald-Leader.
Keller, in a statement to the Herald-Leader, said that she has not reviewed the complaint and is limited in what she can say because the Kentucky Supreme Court has final review over JCC decisions. Still, she echoed her earlier criticisms of Fischer’s campaign, claiming that he’s violating ethical rules “almost daily” by referencing his GOP membership and position on issues that could come before the court.
“Our State Constitution, Section 117, calls for the non-partisan election of all judges. Mr. Fischer, despite his claims to be a constitutional scholar, does not seem to understand this,” Keller said.
A nonprofit, nonpartisan group called the Kentucky Judicial Campaign Conduct Committee has already criticized the partisan nature of Fischer’s campaign. The group, chaired by retired state Court of Appeals judge and former executive director of the Legislative Ethics Commission Anthony Wilhoit, said in a statement that they believe Fischer is “undermin(ing) the independence and integrity of the judiciary” with his campaign.
The JCC did not return a request for comment on Thursday, and complaints filed against a judge or judicial candidate are confidential unless charges are issued, but in a response letter to Jimmy Shaffer, JCC executive secretary, Wiest detailed what he believed to be the source of the complaints.
What did he do?
Fischer’s position on abortion as a legislator is well known.
He is the author of Kentucky’s trigger abortion ban, which is currently enacted and pending an appeal before the state Supreme Court on Nov. 15. Fischer is also the author of a proposed constitutional amendment that will allow voters to decide on Nov. 8 whether or not to amend the state constitution to make clear there is no guaranteed right to an abortion.
But judges are required to not make commitments on matters that could come before the judicial seats they’re seeking. Fischer, on his official Facebook page, has posted photos of his campaign signs with an additional “choose life” sign connected to them. Fischer is also touting his endorsements from Kentucky Right to Life and Northern Kentucky Right to Life, a regional group that, beyond anti-abortion issues, also advocates for limiting access to birth control.
“Insofar as these ‘Choose Life’ signs are concerned, Mr. Fischer and his campaign team have not erected them or put them up; supporters of third party Right to Life groups have. That said, Mr. Fischer has not been shy about his endorsements from Kentucky Right to Life or Northern Kentucky Right to Life and shared a photo of one of them on his campaign Facebook page,” the suit reads.
Wiest, in his response to Shaffer, highlighted that Fischer has “never, in the course of his campaign, made a promise or pledge to rule a particular way regarding any particular party, case, or controversy,” though he has made general statements about some issues.
When asked on Facebook how he would be able to rule on abortion issues given his political stances, Fischer responded: “The best answer comes in the form of another question. If a judge holds a personal moral objection to murder, does that moral objection disqualify the judge from deciding a capital murder case? If the same judge has a personal moral objection to the death penalty, does that objection likewise disqualify the judge?”
As for the allegation that Fischer has sought, accepted, or used endorsements from the Republican Party, the state GOP has not gotten involved. Republican executive committees from counties within the Sixth Supreme Court District have endorsed Fischer, though, as have partisan elected officials, the suit admits.
“He has not used or sought the endorsements of the Republican Party or partisan elected officials, and he has not used or sought endorsements from the Republican party in his campaign or any of his campaign materials, or in any of his public statements,” the suit reads.
In the past, Fischer argued that including several elected Republicans on an invitation to an event did not violate judicial campaign ethics because simply listing the names did not qualify as publicizing “endorsements” and posting their names on an invitation to a campaign fundraiser does not qualify as an “advertisement.”
That invitation was shared by Kentucky Right to Life Executive Director Addia Wuchner – who’s the leading state advocate for the anti-abortion constitutional amendment on the ballot in November – as well as the Kenton County Republican Party and the 4th Congressional District Republican Party, among others.
The suit also claims that the JCC could potentially ding his campaign for using signage indicating that he is “the conservative Republican” running for the post and that it’s failed to disavow endorsements from Republican executive committees.
In the Spring, Fischer asked the Judicial Ethics Committee if he could use symbols like an elephant or donkey, closely associated with a political party, in campaign advertising. They told him no, although he was not disallowed from sending out mass advertisements and adopting signage that brands him as a “conservative Republican.”
Wiest, in the lawsuit and a response to Shaffer, said that the allegation that Fischer is skirting rules by identifying himself as the Republican nominee might have stemmed from his use of a “generic elephant,” as opposed to the official elephant symbol of the Republican Party in his advertising. That “generic elephant” is a more realistic portrayal of the animal as opposed to the colored-in official GOP symbol – a distinction that the suit argues is important.
In the lawsuit, Fischer filed a motion for a temporary restraining order on the JCC, which asked to meet with Fischer to discuss the complaint allegations on Oct. 28, just under two weeks before the Nov. 8 election, to preclude them initiating a formal complaint against him.
“Because of the pendency of that election, and the critical election-related speech that occurs in the next month, emergency relief is warranted,” the motion reads.
The lawsuit indicates that Fischer will run again for a judicial post, using a similar strategy, if he does not beat Keller this November.
“At present, Mr. Fischer faces threat of imminent enforcement action by the JCC for this First Amendment protected campaign related speech. Further, if Mr. Fischer is not successful in his present campaign, he intends to run for judicial office again, and again engage in the same speech.”
Over the course of the week, the case has bounced around between Kentucky judges due to conflicts of interest. Originally assigned to Covington-based senior judge William Bertelsman, the case moved from him to U.S. District Court Judge David Bunning, son of former Republican U.S. Senator Jim Bunning, on Wednesday due to a conflict. Later that day, Bunning recused himself and the case is now assigned to U.S. District Court Judge Karen Caldwell’s court in Lexington.