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Questions arise about politics in big nonpartisan judicial races in Northern Kentucky

By Jack Brammer
NKyTribune reporter

The two biggest judicial races in Northern Kentucky on the ballot next Tuesday are for the Kentucky Supreme Court and the Kentucky Court of Appeals.

Both are nonpartisan. That means they are not affiliated with any political party.

But it doesn’t take long in reviewing campaign materials from two candidates in the races this fall to see that they are touting their political party.

In the race for state Supreme Court in the 6th District that stretches from Bracken County to Shelby County, state Rep. Joe Fischer, a Republican from Fort Thomas, has been slapped twice for being partisan by a private, non-profit, nonpartisan organization created 16 years ago to safeguard the integrity of the judiciary in Kentucky judicial elections.

Justice Michelle Keller, Joe Fischer, Judge Susanne Cetrulo, Robert Winter

He is trying to oust incumbent Michelle Keller of Fort Mitchell, a registered independent who was initially appointed to fill a vacancy by former Democratic Gov. Steve Beshear and then won election to an eight-year term to the state’s highest court.

In the Court of Appeals race in the 6th District, Division 2, which is composed of the state’s 21 northernmost counties, attorney Robert A. Winter Jr. of Edgewood notes on his campaign website that he is “a lifelong Republican.”

His opponent, Susanne M. Cetrulo of Edgewood, who was appointed to the Court of Appeals in September 2021 by Gov. Andy Beshear, does not list her party registration on her campaign advertising for the seat.

“To me, nonpartisan means nonpartisan,” she said.

The Kentucky Court of Appeals is under the Kentucky Supreme Court. It has 14 members – two from each district. The 14 judges select one colleague to serve as chief judge, who assigns judges and cases to panels. They hear appeals from state circuit courts, with the exception of a few criminal cases, like the death penalty, which go directly to the Supreme Court.

Here’s a closer look at the two biggest judicial races in Northern Kentucky. Kentucky is one of 13 states that require nonpartisan Supreme court races.

Kentucky Supreme Court

Fischer, who has not returned one call this campaign season from the Northern Kentucky Tribune seeking comments and information about his campaign, has been the subject of two reprimands by the Kentucky Judicial Campaign Conduct Committee.

In August, the nonprofit warned about Fischer’s emphasizing his campaign logo that identified him as “the conservative Republican.”

It said Fischer had the federal First Amendment right to publicize his political affiliation and records in public service but he was emphasizing too much
his partisan affiliation.

In a statement, the campaign committee said, “We believe this further undermines the independence and integrity of the judiciary, which are essential elements of the American system of government. Unfortunately, many voters do not realize that Kentucky’s judicial elections are nonpartisan. When judicial campaigning becomes partisan, it can mislead voters into thinking they are voting in a partisan election. The objective of a nonpartisan election is to separate the judiciary from political entanglements.”

One of the committee members, retired Supreme Court Justice Bill Cunningham of Kuttawa, said partisan campaigning for judicial seats “should put the voter on notice that there is a political group of people who have an interest in having one of their own as your judge.”

Meanwhile, Fischer last month lost an attempt to block the state Judicial Conduct Commission from taking any action against him.

The commission is the only agency in the state authorized to take disciplinary action against a sitting judge. The Kentucky Supreme Court can review its work.

U.S. District Judge Karen Caldwell denied Fischer’s request to stop the state Judicial Conduct Commission from acting on complaints it had received about Fischer’s campaigning.

The ruling also applied to Court of Appeals candidate Robert Winter, who said he thinks the commission might be coming at him.

Fischer and Winter appealed to the U.S District Court of Appeals. On Oct. 28, it held an injunction against the Commission, blocking it from taking any actions against the candidates.

Fischer is known for his sponsorship of bills in the Kentucky General Assembly to restrict or ban abortion. He is the author of the state’s 2019 “trigger” law, which outlawed most abortions after the reversal of Roe v. Wade in June.

Fischer has been endorsed by anti-abortion groups Kentucky Right to Life and Northern Kentucky Right to Life.

His campaign has been helped by dark money from outside the state.

Keller noted on a campaign flyer this week that she is “on the nonpartisan ballot.”  She said she is “a judge and public servant – not a politician.”

Asked why she does not use party affiliation in her ads, Keller pointed to Section 117 of the Kentucky Constitution, which took effect in 1976.
It says, “Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.”

“If I have to apply the Kentucky Constitution to citizens every day, I can apply it to myself, said Keller.

Keller has been endorsed by Northern Kentuckians for the Judiciary and Kentucky State Fraternal Order of Police.

Celine Mutuyemariya, electoral justice organizing director at the Black Leadership Action Coalition of Kentucky (BLACK), said Tuesday the network of more than 300 Black activists and organizers across the state is concerned about Fischer’s running as a partisan in a nonpartisan race.

She said his actions have implications for future Kentucky Supreme Court races.

Kentucky Court of Appeals

Winter, in his bid to defeat incumbent Cetrulo for the Court of Appeals seat, maintains that federal courts have ruled that nonpartisan elections cannot deny judicial candidates, or others, the rights of free speech and association.

Winter, who has practiced law for 38 years, said he used his party affiliation in his campaign website because he wanted to tell voters that I have “a conservative judicial philosophy, not politically conservative but judicially conservative.”

“That means I am fair and apolitical. There will be no judicial activism from the bench.”

In 2014, while running for Kenton circuit judge, Winter sent out fliers before the May primary identifying himself as a “lifelong Republican” and three of his opponents as Democrats.

Four years earlier, a federal appeals court in Cincinnati said judicial candidates have the right to state their party affiliation.

But after the May 2014 primary, the state Judicial Conduct Commission told Winter that three complaints had been filed against him. It asked him to respond.

Winter, however, sued the panel in U.S. District Court in Covington and argued that the Kentucky’s judicial ethics rules be struck down and the panel blocked from sanctioning him. Winter lost the race but the U.S. Court of Appeals ruled that canons that prohibit judges from campaigning as a member of a political organization and making speeches for a political organization are unconstitutional.

Cetrulo, who was in private practice for more than 30 years, said she thinks it is better for judicial races to be nonpartisan.

“I don’t think the public wants their judges to be political,” she said.

In arguing for nonpartisan judicial races, the Judicial Campaign Conduct Committee says, “The touchstone of the judiciary is its independence and impartiality. Everyone in a free society should be able to expect their disputes that end up in court to be decided by an impartial tribunal that is not influenced by political affiliations.”

It notes that Republican President Abraham Lincoln once said, “The function of courts is to decide cases, not principles.”

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