Federal appeals court blocks effort to investigate Joe Fischer's Supreme Court bid

A federal appeals court granted an injunction Friday to temporarily block the Kentucky Judicial Conduct Commission from investigating complaints about the campaign of Joe Fischer, a candidate for the state Supreme Court's 6th District.

Fischer, a Republican state legislator from Fort Thomas, filed a lawsuit this month in federal court in Covington, saying he believed the state commission was considering possible sanctions against him for alleged campaign violations — largely that he has identified himself as "the conservative Republican" in a nonpartisan judicial race.

The 2-to-1 ruling by the 6th U.S. Circuit Court of Appeals follows an appeal by Fischer after a federal judge rejected his request to preempt a possible investigation of his campaign or enforcement action.

The two circuit appeals judges signing onto the majority opinion for a temporary injunction were Amul Thapar and Eric Murphy, both Trump appointees, while Bush appointee Richard Griffin issued a dissenting opinion against the injunction.

Fischer, in a news release, welcomed the decision.

“My opponents wanted to prevent voters from learning about my conservative political background," he said. "However, the Sixth Circuit’s decision affirms my right to tell voters about my record of being a registered Republican and conservative legislator as well as my endorsement by Kentucky Right to Life."

On Monday, U.S. District Judge Karen Caldwell denied Fischer's request that she block the state commission from further action against his campaign over complaints it had received, saying that so far, there is no "credible threat" of enforcement.

"The answer here is no − not yet," Caldwell's order said.

The order from the appeals court differed, stating that a letter from the commission seeking information and a meeting with the campaign was a threat to his First Amendment rights.

"When a judicial commission sends vague and threatening letters to candidates on the eve of election, it puts the candidates to a choice between self-censorship and uncertain sanctions," stated the majority opinion. "The First Amendment protects the candidates from having to make such a choice."

The order added that an injunction was warranted pending appeal because Fischer had "shown a likelihood of success on the merits" of his arguments.

In his dissenting opinion, Griffin wrote that Fischer had not demonstrated that the letters sent by the commission contained "credible threats of enforcement," which meant he did not have standing.

The ruling also applies to Kentucky Court of Appeals candidate Robert Winter, a Republican who is running for a seat in the 6th District and who joined Fischer's lawsuit, saying he also believes the commission was considering enforcement action against him.

Christopher Wiest, the lawyer for Fischer and Winter, had predicted a win on appeal for his clients in a tweet Tuesday in which he said "Wait until Thursday. The Sixth Circuit has signaled it's about to reverse this with a vengeance and enter injunctive relief."

Fischer and Winter expressed concern the commission might be looking into complaints about the partisan nature of their campaigns in nonpartisan judicial races after they received letters from the commission indicating it had received complaints and requesting more information as well as a meeting with the candidates.

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Both Fischer and Winter are "lifelong Republicans" and that affiliation is "long-standing and well-known," their appeal said. It also said both men have been endorsed by Kentucky Right to Life and Northern Kentucky Life, which they are promoting in their campaigns. Their appeal also said the two have received endorsements of various county Republican committees.

And it said supporters have been placing "Choose Life" signs on top of their judicial campaign signs.

"Mr. Fischer, Mr. Winter and their campaign teams have not erected the 'Choose Life' signs or put them up; rather, third-party Right to Life groups have," the appeal said.

However, neither candidate has "made a promise or pledge to rule in a particular way regarding any particular party, particular case or particular controversy," their appeal said.

Fischer, a 23-year member of the General Assembly and sponsor of multiple laws to restrict or ban abortion, is seeking to defeat incumbent Justice Michelle Keller for the high court's 6th District, consisting of 13 counties from Northern Kentucky to Oldham and Shelby counties. His campaign already had drawn outside criticism from a citizen watchdog group for what it said was its partisan tone.

Winter is seeking to defeat incumbent Judge Suzanne Cetrulo for the same judicial district.

This story may be updated.

Contact reporters Deborah Yetter at dyetter@courier-journal.com and Joe Sonka at jsonka@courierjournal.com.

This article originally appeared on Louisville Courier Journal: Appeals court rules for Joe Fischer in KY Supreme Court race dispute