The Madison County Record Oct. 24, 2012, 5:11pm

In the rough and tumble of local, state and national politics candidates can bend, shape and twist their opponents' records with reckless abandon - and if that's not effective (as parodied by FedEx Office in a TV ad) resort to: "Honk if you've had an affair with Taylor" yard signs.

Judicial races are much different.

According to Illinois Supreme Court rules, attorneys and sitting judges running for office are restricted by Rule 67:

"A candidate for a judicial office shall not make statements that commit or appear to commit the candidate with respect to cases, controversies or issues within cases that are likely to come before the court."

And, by Supreme Court Rule of Professional Conduct 8.2:

"A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office."

With several local judicial races in play, ethics and integrity challenges have popped up in at least a couple of campaign stumps.

Chicago attorney Robert Cummins, an expert in judicial conduct and ethics, was asked specifically about the Third Judicial Circuit race involving Hamel attorney Thomas Burkart, a Republican, and Madison County Associate Judge Kyle Napp, a Democrat.

Defining boundaries in judicial campaigns

In a recent press release, Burkart raised the possibility of political favoritism with regard to Napp's 2009 decision to dismiss charges against former Glen Carbon attorney Charles Douglas.

Douglas, then 57, had been charged with disorderly conduct on four separate occasions between July and August 2008 for asking parents or caretakers of children at Miner Park in Glen Carbon if he could tickle their children.

“Was it a brain hick-up (sic), or was it preference to a lawyer and Democratic Party loyalist?” Burkart stated in the release.

Cummins said that statement was “completely inappropriate and inconsistent with the mandates” of applicable conduct rules for Burkart to suggest Napp’s decision was politically motivated.

"If you are going to make statements about a sitting judge, you better be truthful and you better be credible,” he said. “You can’t say outrageous things for the purpose of gaining an advantage.”

Cummins, former chairman of the Illinois Judicial Inquiry Board, did remark, however, that candidates can “certainly comment on a judge’s record.”

In a phone interview, Burkart also outright criticized Napp’s decision in the Douglas case, saying he was “flabbergasted” by it.

He said the ruling showed "poor judgment."

"That was the craziest thing I have seen," he said. "It might have been a brain hiccup. She claims to be a child advocate. That was not a good decision."

He said the jury instruction for disorderly conduct requires the state to prove “that the defendant knowingly performed an act in such an unreasonable manner as to alarm or disturb another and provoke a breach of the peace.”

Burkart said the state was not allowed to call witnesses, and that justice was not served.

Napp has declined to comment on the case, saying she is prohibited from doing so because of judicial conduct rules. Instead, she pointed to the order.

The order indicates that no witnesses were called in the case by either the state or  the defense.  The attorneys relied on argument.

Napp’s order, in part, reads:

"The complaints allege that the Defendant, while located in a public park, initiated conversation with four separate adult (sic) on four separate occasions. Each of the conversations revolved around the Defendant's enjoyment from tickling children. Each complaint lists with specificity the statements made by the Defendant. While speaking with two of the four complainants, the Defendant touches his own knee to demonstrate where he liked to tickle children. This demonstration by the Defendant is considered by the court to be a non-verbal form of communication. Given this brief factual history, the 'offensive conduct' alleged in the complaints, consists only of words spoken by the Defendant. The Supreme Court of the United States has ruled that where a charge of Disorderly Conduct arises from the utterance of mere words alone, the words spoken must be 'fighting words'.... While words may be vulgar or offensive they are not prohibited unless they are 'fighting words,' words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

"Freedom of speech is a fundamental right protected by the First Amendment and a right that is protected from invasion by the State by the Fourteenth Amendment...

"Neither attorney argues that the words spoken by the Defendant were lewd, obscene, profane or libelous and therefore not afforded protection. Rather, the issue is whether the words spoken by the Defendant are 'fighting words.'

"In this case, the Defendant while located in a public park initiated conversations with four adults. None of the complaints allege that the defendant's demeanor was threatening or intimidating during the conversation. Rather, it was the substance of his statements that bothered, unsettled and concerned the listeners. When one reviews the statements as alleged in the complaint, they may be bizarre, strange, unconventional and potentially abhorrent, but that alone does not relegate the statements to 'fighting words.' If the basis for the charge of Disorderly Conduct is mere words spoken and there is no other conduct committed in conjunction with the words, then those words must rise to the level of 'fighting words' for the charge to withstand a motion to dismiss."

Douglas voluntarily retired in 2009, according to a spokesman for the Illinois Attorney Registration and Disciplinary Commission, who also said there had never been any discipline proceedings brought against him.

Discussing past rulings

Former Madison County Circuit Judge Don Weber, who had been appointed to the bench to fill the unexpired term of Phil Kardis in 2005, and lost an expensive and fierce election in 2006 to Dave Hylla, said the question of whether a judge can discuss a past ruling during election season is an "interesting" one.

As long as the possibility of appeal has been exhausted, Weber said, "Why not explain?"

However, on the question of Napp's judgment, Weber said that her record as a child advocate is "inarguable."

"I know how she handles" her docket," Weber said. "She has not been and she is not soft on crime."

On potential cases that could come before the court, however, Weber was clear that judges can't comment on specific cases.

"You really can't make a debate on a specific case," Weber said. "A judge can't commit to a specific case until a judge has heard all the facts."

But, how a judge or judicial candidate would rule in the abstract is a legitimate way for voters to understand who they are electing, he said.

"Judges should answer questions on philosophy," he said. "It's the election process."

The candidates

Burkart, who has vowed not to accept campaign contributions from attorneys who could come before him in court, has raised just over $7,000, according to figures from the Illinois State Board of Elections.

From an organizational and messaging standpoint, Burkart faces an uphill battle against Napp, who has raised close to $28,000 in large part from Madison County attorneys or firms.

Napp has a clear advantage in reaching more voters and more often through traditional means - signs, mailings and TV. (Edwardsville attorney Randy Gori recently paid $4,500 for Napp’s advertising on KMOV-TV).  Her campaign focuses on her record as judge, former prosecutor and community servant.

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