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 A Judge Lynching: U.S. Supreme Court Decision Offers Support To Judge Boardman

A Judge LynchingNews Release - for immediate release
Contact: William Boardman (802) 457-1782

By William Boardman

Woodstock, VT - A 2002 U.S. Supreme Court decision offers support to Assistant Judge William Boardman's argument that what he said and wrote during the 2006 election was protected speech under the First Amendment of the U.S. Constitution.

Judge Boardman is appealing a recent order of recommendation from the Vermont Judicial Conduct Board, which seeks to punish him for things he said and didn't say near the end of the 2006 election campaign.

In 2002, the U.S. Supreme Court, in Republican Party of Minnesota v. White, held that a Minnesota rule dealing with political speech during a judicial election campaign violated the First Amendment. Writing for the court's 5-4 majority, Associate Justice Antonin Scalia observed that,"the First Amendment does not permit [the State] to achieve its goal by leaving the principle of elections in place while preventing the candidates from discussing what the elections are about."

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The conduct board seeks to sanction Judge Boardman for critical remarks about his opposition, which had freely criticized him for months beforehand. Judge Boardman also argues that, while the conduct board invented a narrative to support its claim, even if the board's fiction were true, he still has a right to free speech like any other citizen.

In his concurring opinion in the Minnesota case, Associate Justice Anthony Kennedy wrote: "What [the State] may not do, however, is censor what people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of voters, not the State.. The law in question here contradicts the principle that unabridged speech is the foundation of political freedom."

In Judge Boardman's case, unlike the Minnesota case of 2002, there is no specific Vermont rule defining permissible speech by judicial candidates in an election. Rather, the conduct board is seeking to apply a general rule, retroactively, in support of a complaint from a losing candidate.

Vermont has been electing Assistant Judges since it was an eighteenth century republic. At the time of the founding of the United States, and thereafter until 1812, Vermont was the only state to elect any judges.

Justice Kennedy also wrote in his concurring opinion, "The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech. By abridging speech based on its content, [the State] impeaches its own system of free and open elections."

Vermont rules provides no standards by which any judicial candidate may know what speech is safe and what speech might be sanctionable. In Judge Boardman's case, the conduct board decided, a year and a half after the fact, that he had crossed a line that is nowhere laid out.

Again, writing for the majority in the Minnesota case, Justice Scalia pointed out that "the notion that the special context of electioneering justifies an abridgement of the right to speak out on disputed issues sets our First Amendment Jurisprudence on its head.. We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election." [Emphasis in original.]

The judicial conduct board is appointed by the Vermont Supreme Court, which then hears appeals from the board it has appointed. The board comprises nine members, including six lawyers, three of whom are sitting judges. Their order of recommendation did not address First Amendment issues.

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