Republican Party v. Suzanne White , 247 F.3d 854 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-4021
___________
Republican Party of Minnesota, an *
association; Indian Asian American *
Republicans of Minnesota, an *
association; Republican Seniors, an *
association; Young Republican League *
of Minnesota, a Minnesota nonprofit *
corporation; Minnesota College *
Republicans, an association, *
*
Plaintiffs - Appellants, *
*
*
* Appeals from the United States
Gregory F. Wersal, individually, * District Court for the
* District of Minnesota.
Plaintiff, *
*
Cheryl L. Wersal, individually; Mark E. *
Wersal, individually; Corwin C. Hulbert, *
individually, *
*
Plaintiffs - Appellants, *
*
Campaign for Justice, an association, *
*
Plaintiff, *
*
Minnesota African American Republic *
Council, an association, *
*
Plaintiff - Appellant, *
*
Muslim Republicans, an association; *
Michael Maxim, individually; Kevin J. *
Kolosky, individually, *
*
Plaintiffs, *
*
v. *
*
Verna Kelly, in her capacity as *
Chairperson of the Minnesota Board of *
Judicial Standards, or her successor, *
*
Defendant, *
*
Barry M. Lazarus, in his capacity as *
Chairperson of the Minnesota Board of *
Judicial Standards, or his successor; *
Edward J. Cleary, in his capacity as *
director of the Minnesota Office of *
Lawyers Professional Responsibility, or *
his successor; Charles E. Lundberg, *
in his capacity as Chair of the *
Minnesota Lawyers Professional *
Responsibility Board, or his *
successor, *
*
Defendants - Appellees, *
*
Minnesota Civil Liberties Union, *
*
Amicus on Behalf of Appellants, *
*
The Minnesota State Bar Association, *
*
Amicus on Behalf of Appellee. *
*
-2-
___________
No. 99-4025
___________
Republican Party of Minnesota, an *
association; Indian Asian American *
Republicans of Minnesota, as *
association; Republican Seniors, an *
association; Young Republican League *
of Minnesota, a Minnesota nonprofit *
corporation; Minnesota College *
Republicans, an association; Minnesota*
African American Republic Council, an *
association; Cheryl L. Wersal, *
individually; Mark E. Wersal, *
individually; Corwin C. Hulbert, *
individually; Gregory F. Wersal, *
individually; Campaign for Justice, an*
association; Muslim Republicans, an *
association, *
*
Plaintiffs, *
*
Michael Maxim, individually, *
*
Plaintiff - Appellant, *
*
Kevin J. Kolosky, individually, *
*
Plaintiff, *
*
v. *
*
Verna Kelly, in her capacity as *
Chairperson of the Minnesota Board of *
Judicial Standards, or her successor, *
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*
Defendant, *
*
Barry M. Lazarus, in his capacity as *
Chairperson of the Minnesota Board of *
Judicial Standards, or his successor; *
Edward J. Cleary, in his capacity as *
director of the Minnesota Office of *
Lawyers Professional Responsibility, or *
his successor; Edward J. Cleary, in his *
capacity as Director of the Minnesota *
Office of Lawyers Professional *
Responsibility, or his successor; *
Charles E. Lundberg, in his capacity as *
Chair of the Minnesota Lawyers *
Professional Responsibility Board, or his*
successor, *
*
Defendants - Appellees, *
*
The Minnesota State Bar Association, *
*
Amicus on Behalf of Appellee. *
___________
No. 99-4029
___________
Republican Party of Minnesota, an *
association; Indian Asian American *
Republicans of Minnesota, an *
association; Republican Seniors, an *
association; Young Republican League *
of Minnesota, a Minnesota nonprofit *
corporation; Minnesota College *
Republicans, an association, *
-4-
*
Plaintiffs, *
*
Gregory F. Wersal, individually, *
*
Plaintiff - Appellant, *
*
Cheryl L. Wersal, individually; Mark E. *
Wersal, individually; Corwin C. Hulbert,*
individually; *
*
Plaintiffs, *
*
Campaign for Justice, an association; *
*
Plaintiff - Appellant, *
*
Minnesota African American Republic *
Council, an association; Muslim *
Republicans, an association; Michael *
Maxim, individually; *
*
Plaintiffs, *
*
Kevin J. Kolosky, individually, *
*
Plaintiff - Appellant, *
*
v. *
*
Verna Kelly, in her capacity as *
Chairperson of the Minnesota Board of *
Judicial Standards, or her successor; *
*
Defendant, *
*
Barry M. Lazarus, in his capacity as *
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Chairperson of the Minnesota Board of*
Judicial Standards, or his successor;*
Edward J. Cleary, in his capacity as *
director of the Minnesota Office of *
Lawyers Professional Responsibility, or
*
his successor; Charles E. Lundberg, in
*
his capacity as Chair of the Minnesota
*
Lawyers Professional Responsibility *
Board, or his successor, *
*
Defendants - Appellees, *
*
The Minnesota State Bar Association, *
*
Amicus on Behalf of Appellants. *
___________
Submitted: May 10, 2000
Filed: April 30, 2001
___________
Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
The issue before us in this appeal is whether Canon 5 of the Minnesota Code of
Judicial Conduct, a rule promulgated by the Supreme Court of Minnesota to deal with
political activity deemed inappropriate to judicial office, violates the First and
Fourteenth Amendments of the United States Constitution. Canon 5 restricts
candidates for judicial office from attending and speaking at partisan political
gatherings; identifying their membership in a political party; seeking, accepting, or
using a political party endorsement; announcing their views on disputed legal and
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political issues; personally soliciting campaign contributions; or authorizing or
knowingly permitting others to do these things on the candidates' behalf. The district
court1 held that Canon 5's provisions, except for the restriction on candidates
announcing their views on disputed legal and political issues, were narrowly tailored
to serve a compelling state interest in maintaining the independence and impartiality of
Minnesota's judiciary, did not offend equal protection, and were not impermissibly
vague. Republican Party v. Kelly, 63 F. Supp. 2d 967, 974-83 (D. Minn. 1999). As
to the "announce" clause, the court concluded that a broad reading of the clause would
raise constitutional difficulties. The court construed the clause narrowly to uphold its
constitutionality, however, predicting that the Minnesota Supreme Court would do the
same. Id. at 983-86. We affirm.
I.
The Minnesota Constitution provides that judges "shall be elected by the voters
from the area which they are to serve," and that their term of office shall be six years.
Minn. Const. art. 6, § 7. In 1912, the Minnesota General Assembly designated judicial
elections as nonpartisan, meaning that party affiliation is not listed when candidates file
for office, nor does it appear on the ballot. Act of June 19, 1912, ch. 2, 1912 Minn.
Laws Spec. Sess. 4-6.
Ethical codes restricting the campaign conduct of judicial candidates have
existed in Minnesota since at least 1950, when the Minnesota District Judges
Association adopted by unanimous vote the ABA's Canons of Judicial Ethics (1924).
In 1974, the Minnesota Supreme Court promulgated a code of judicial conduct that was
based in large measure on the ABA's Model Code of Judicial Conduct (1972). Over
the years, the Minnesota Supreme Court has revised its ethical rules, including those
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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relating to a candidate's ability to attend and speak at political gatherings, to solicit
campaign funds, and to discuss certain topics.
Gregory Wersal, a Minneapolis-area attorney and longtime member of the
Republican Party of Minnesota, ran unsuccessfully for the office of Associate Justice
of the Minnesota Supreme Court in 1996 and 1998. The year Wersal launched his first
campaign, the Minnesota Supreme Court revised its code of judicial conduct. The
court renumbered and reorganized the canons and made several substantive changes,
bringing the code largely in line with the 1990 version of the ABA's Model Code of
Judicial Conduct.
Wersal interpreted one revision to lift a twenty-two-year ban on judicial
candidates speaking to partisan political gatherings. From 1974 until 1996, Canon 7
of the Minnesota Code of Judicial Conduct barred candidates and judicial incumbents
from speaking at partisan political gatherings, but allowed them to accept invitations
to speak on their own behalf to other groups. Canon 7(A)(2) (1974) (a judicial
candidate or incumbent "may accept invitations to attend and speak on his own behalf
at other than partisan political gatherings"). It also prohibited judges from engaging in
political activity except on behalf of measures to improve the law or the legal system.
Canon 7(A)(4) (1974). In the 1996 revisions, the Minnesota Supreme Court
reorganized and revised the subsections of Canon 7 and renumbered it as Canon 5.
One subsection of the newly revised Canon 5 allowed candidates and judges to speak
on their own behalf to gatherings generally, while another prohibited candidates and
incumbents from attending political events. Canon (5)(A)(1)(a) & (d) (1996).
Consistent with his reading of the canon, Wersal, his wife Cheryl, and members
of his campaign committee spoke at Republican Party gatherings as part of Wersal's
1996 bid for office. At these gatherings, they announced that Wersal was a member
of the Republican Party and that he favored strict construction of the Constitution.
They distributed campaign literature criticizing several Minnesota Supreme Court
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decisions on issues such as crime, welfare, and abortion as being "marked by their
disregard for the Legislature and lack of common sense." In addition, the campaign
committee sought unsuccessfully to obtain an endorsement by the Republican Party.2
In May 1996, a delegate to a Republican district convention filed an ethical
complaint against Wersal with the Office of Lawyers Professional Responsibility. The
Office of Lawyers Professional Responsibility, under the direction of the Minnesota
Lawyers Professional Responsibility Board (collectively, the Lawyers Board),
investigates and prosecutes ethical violations of lawyer candidates for judicial office.
The complainant questioned the propriety of Wersal's attendance at Republican
gatherings, the campaign committee's solicitation of partisan support, and the campaign
materials critical of Minnesota Supreme Court decisions. The Director of the Lawyers
Board dismissed the complaint, concluding that no disciplinary action was warranted
under Canon 5.
In the Director's written determination, she first noted that it was unclear whether
the Minnesota Supreme Court had intended to retain the ban on candidates speaking
to political gatherings when it revised the code in 1996. Second, she pointed out that
the 1996 version of Canon 5 restricted only candidates, and not their campaign
committees, from soliciting publicly stated support. Finally, the Director expressed
2
At least in recent times, it has not been the norm in Minnesota for judicial
candidates to seek political party endorsements or for political parties to consider
endorsing them. The parties submitted no evidence that other judicial candidate
campaign committees sought or were considered for such endorsements. In a February
10, 1998 letter, Wersal wrote a newspaper editor that "the Republican Party had never
endorsed a judicial candidate before," and a June 20, 1998 Minnesota newspaper
article characterized the Party's deliberation over whether to endorse Wersal as "a
historic break with tradition." Party endorsements may not have been uncommon early
in the twentieth century. See Moon v. Halverson, 288 N.W. 579, 581-82 (Minn. 1939)
(Loring, J., concurring) (commenting on recent allegations of party treason directed at
judges who issued decisions contrary to endorsing party's interests).
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doubts about the applicability of the announce clause to Wersal's campaign statements.
Citing several decisions from other jurisdictions in which similar language was either
struck down or interpreted narrowly, she also questioned whether the clause was
enforceable.
Ethical complaints are deemed confidential in Minnesota, but notification of the
Director's initial determination whether a complaint should be dismissed summarily or
investigated further is provided to the complainant and to the respondent lawyer.
Sometime after Wersal received this notification, he withdrew his candidacy for the
1996 race, fearing that further ethical complaints would jeopardize his ability to
practice law. In January of the following year, Wersal announced his candidacy for a
supreme court seat opening up in 1998, and he and his campaign committee began
campaigning as they had in the 1996 race, including the campaign committee's pursuing
the Republican Party endorsement.
The Minnesota Board on Judicial Standards (the Judicial Board), the body
charged with enforcing ethical codes against judges, petitioned the Minnesota Supreme
Court in September 1997 to amend Canon 5, primarily to clarify the nonpartisan nature
of judicial elections. The Judicial Board, which had become aware that Wersal's
campaign committee was soliciting a political party endorsement, urged the court to
add language that would limit the ability of candidates to identify themselves as
members of a political organization and that would prevent campaign committees from
seeking endorsements from political organizations. The Judicial Board also
recommended that the court clarify that judicial candidates could not speak to political
gatherings. Following a hearing, the court adopted each of these recommendations.
Order Amending Canon 5 of the Code of Judicial Conduct, No. C7-81-300 (Dec. 23,
1997). The changes took effect January 1, 1998.
In February 1998, Wersal sought an advisory opinion from the Lawyers Board.
He asked whether the Board would prosecute him for ethical violations if he spoke at
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political party gatherings or sought a Republican Party endorsement. He also inquired
whether the Board would enforce the provision of Canon 5 restricting candidates from
announcing their views on disputed issues. The Director answered by stating that
Wersal would be subject to discipline regarding the first two actions he proposed, but
that the Board could not advise him on the latter question since Wersal had not
provided the Board with information about any particular statements he wished to make
that might have been a view on a disputed legal or political issue. The Director also
stated that the Board continued to have "significant doubts as to whether or not [the
announce clause] would survive a facial challenge to its constitutionality" and that it
would not enforce the provision unless the speech at issue violated other portions of the
judicial ethics code.
A few days after he received this advisory opinion, Wersal filed this complaint
under 42 U.S.C. § 1983 (1994), seeking declaratory and injunctive relief from the
provisions of Canon 5. Joined as plaintiffs were the Republican Party of Minnesota
(the Party), its affiliated organizations,3 and several other individuals and organizations
interested in Wersal's candidacy.4 The complaint alleged that Canon 5 violated the free
3
These affiliated organizations included the Indian Asian American Republicans,
the Republican Seniors, the Young Republicans League of Minnesota, and the
Minnesota College Republicans. The Minnesota African American Republican Council
and the Muslim Republicans, also affiliated organizations, were later added as
plaintiffs.
4
Other plaintiffs included Wersal's campaign committee, and Party members
Cheryl Wersal, Mark Wersal, and Corwin Hulbert. Michael Maxim, another member
of the Minnesota Republican Party, and Kevin Kolosky, also a candidate for judicial
office in 1996 and 1998, later joined as plaintiffs. Because the Party, its affiliated
organizations, and its members Cheryl Wersal, Mark Wersal, and Corwin Hulbert have
filed a single brief, we refer only to the Party when addressing their arguments.
Likewise, we refer only to Gregory Wersal when addressing his contentions, those of
Kolosky, and the campaign committee, who also have submitted a single brief.
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speech and association guarantees of the First Amendment and the Equal Protection
Clause of the Fourteenth Amendment.
Wersal and the other plaintiffs moved for a temporary restraining order and/or
preliminary injunction to enjoin the Lawyers Board and Judicial Board from enforcing
Canon 5 so that Wersal would be free to participate in Republican precinct caucuses
scheduled for early March 1998. The district court denied the motion,5 and we
subsequently affirmed. Republican Party v. Kelly, 966 F. Supp. 875 (D. Minn. 1998),
aff'd, No. 98-1625 (8th Cir. Nov. 2, 1998).
While appeal of the district court's order was pending, Wersal continued his
campaign, but was forced to cancel the numerous speaking engagements he had
scheduled at the precinct caucuses and other Republican events. He wrote at least five
persons who he knew intended to advocate his candidacy at these events and asked
them not to do so because of his concern that someone might infer that he had
"knowingly permitted" them to do so in violation of Canon 5. On advice of counsel,
he declined to answer questions posed by members of the press and public when he
thought answering might impermissibly disclose his views on disputed issues. His wife
Cheryl and his brother Mark, a member of his campaign committee, refrained from
taking part in certain campaign activities on Wersal's behalf for fear that their action
would subject Wersal to discipline.
At the state Republican convention held in June, Michael Maxim, a delegate
who was later joined as a plaintiff in this case, moved that the Party endorse Wersal.
5
The district court found that the plaintiffs established a likelihood of success on
their claim that the announce clause was unconstitutional, but concluded that the State's
interest in maintaining a nonpartisan judicial election weighed against enjoining
enforcement of all of Canon 5. Republican Party v. Kelly, 966 F. Supp. 875, 879-80
(D. Minn. 1998).
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After considerable debate, the motion failed by a vote of 344 to 390. No other
candidates for judicial office were nominated for endorsement. Because of the
Republican Party's policy of not supporting candidates it had not formally endorsed, the
Party did nothing to further Wersal's bid for office. His campaign ended when he came
in third in the primary.
The parties filed cross motions for summary judgment. The district court found
in favor of defendants on all claims. Republican Party v. Kelly, 63 F. Supp. 2d 967 (D.
Minn. 1999). The court concluded that the State had compelling interests in
maintaining the actual and apparent integrity and independence of the judiciary and that
the restrictions on candidates' political activity and fund solicitation were narrowly
tailored to serve those interests. Id. at 974-80. It also upheld the provisions against
vagueness and equal protection challenges. Id. at 980-82. In its analysis of the
announce clause, the court determined that the critical issue was whether the provision
was narrowly tailored to serve the State's interest in maintaining the integrity and
independence of the judiciary. The district court construed the clause to reach only the
discussion of issues likely to come before the court, having considered that the Judicial
Board had argued for a narrow interpretation of the clause and that the Minnesota
Supreme Court, when possible, construes laws to prohibit their application to
constitutionally protected expression. Id. at 985-86. The court then concluded that the
provision did not offend the First Amendment. Id. at 986.
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Wersal and those joined with him appeal,6 challenging the determinations made
by the district court.
II.
We review the district court's grant of summary judgment de novo, applying the
same standard the district court applied to the motion. Essco Geometric v. Harvard
Indus., 46 F.3d 718, 729 (8th Cir. 1995). We will affirm if we conclude there are no
genuine issues of material fact and the Lawyers and Judicial Boards are entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
6
For the first time on appeal, the Lawyers and Judicial Boards contend that the
plaintiffs who are not candidates for judicial office and cannot be sanctioned by the
Boards lack standing to challenge Canon 5. Citing Laird v. Tatum, 408 U.S. 1 (1972),
the Boards argue that the plaintiffs' voluntary decisions not to advocate Wersal's
candidacy do not constitute legally cognizable injuries. However, the plaintiffs have
alleged more than the subjective "chilling" of their free speech rights held insufficient
by the Supreme Court in Tatum, 408 U.S. at 13-14. Wersal and the other plaintiffs
have stated they were unable to associate with each other at political party gatherings
and alleged they would have done so absent the ethical restrictions. Deprivation of the
right to associate with others politically is a cognizable "injury in fact." See Lerman
v. Board of Elections, 232 F.3d 135, 143 (2d Cir. 2000), petition for cert. filed (U.S.
Feb. 28, 2001) (No. 00-1360); Krislov v. Rednour, 226 F.3d 851, 858 (7th Cir. 2000),
cert. denied, 121 S. Ct. 1085 (2001) (No. 00-923). Because the plaintiffs' associational
injuries are fairly traceable to Canon 5 and the injunctive relief they request will redress
them, the plaintiffs have standing to assert their claims. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (Article III standing requires plaintiffs allege
"injury in fact" fairly traceable to defendant's conduct likely to be redressed by
favorable court decision); National Solid Waste Management Ass'n v. Williams, 146
F.3d 595, 598 (8th Cir. 1998).
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The plaintiffs contend that Canon 5 contravenes their First Amendment rights
to freedom of speech and of association, made applicable to the States by the Due
Process Clause of the Fourteenth Amendment. Tashjian v. Republican Party, 479 U.S.
208, 214 (1986).
Freedom of speech reaches its high-water mark in the context of political
expression. Debate about the qualification of candidates for public office is at the core
of our First Amendment freedoms, Eu v. San Francisco County Democratic Cent.
Comm., 489 U.S. 214, 222-23 (1989), valuable not only as a personal liberty, but also
because of the role it plays in the proper functioning of our entire democratic form of
government. Burson v. Freeman, 504 U.S. 191, 196 (1992); Brown v. Hartlage, 456
U.S. 45, 52-53 (1982); Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (per curiam). The
closely related right of association is also particularly acute in the context of elections.
Eu, 489 U.S. at 224-25 (ban on endorsement in primary election acts at "crucial
juncture" to prevent parties from promoting candidates who can translate shared ideas
into action); Buckley, 424 U.S. at 15.
But even among restrictions that touch upon the core First Amendment rights to
political speech and association, some restrictions are more burdensome than others,
depending on the kind of activity that is restrained and on the nature of the restraint.
See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (standard of
review depends on character and magnitude of burden on associational rights). In
Buckley v. Valeo, both campaign contribution limits and expenditure limits affected
core First Amendment expression and association interests, 424 U.S. at 14, yet the
contribution limits placed a lesser burden on those interests than the expenditure limits
did, id. at 19-23. Consequently, contribution limits have been reviewed under a less
demanding standard. Nixon v. Shrink Mo. Gov’t PAC, 120 S. Ct. 897, 903-04 (2000).
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In this case, the restriction applies to conduct of candidates for judicial office.7
There are important differences between judicial office, on the one hand, and legislative
or executive office, on the other, that affect the nature of the candidate's interest in
certain kinds of policy debate.
The functioning of the judicial system differs markedly from those of the
executive and legislative. In those areas, the public has the right to know
the details of the programs that candidates propose to enact into law and
administer. Pledges to follow certain paths are not only expected, but are
desirable so that voters may make a choice between proposed agendas
that affect the public. By contrast, the judicial system is based on the
concept of individualized decisions on challenged conduct and
interpretations of law enacted by the other branches of government.
Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (3d Cir. 1991). Accord Buckley v.
Illinois Judicial Inquiry Bd., 997 F.2d 224, 228 (7th Cir. 1993) ("Judges remain
different from legislators and executive officials . . . in ways that bear on the strength
of the state's interest in restricting their freedom of speech."); In re Chmura, 608
N.W.2d 31, 39-40 (Mich.) ("[T]he differences between judges and other government
officials bear on the strength of the state's interest in restricting political speech."), cert.
denied, 121 S. Ct. 77 (2000). Whereas affiliation with a partisan program is thus at the
heart of executive and legislative campaigns, a State may conclude that it has no role
in judicial campaigns because of the neutral, decision-making nature of the judicial
function. "Because the judicial office is different in key respects from other offices, the
state may regulate its judges with the differences in mind . . . . [The judicial candidate]
cannot, consistent with the proper exercise of his judicial powers, bind himself to
decide particular cases in order to achieve a given programmatic result." Morial v.
Judiciary Comm'n, 565 F.2d 295, 305 (5th Cir. 1977). The judicial candidate simply
does not have a First Amendment right to promise to abuse his office. See Brown, 456
7
We discuss the claim that Canon 5 also reaches the conduct of persons who are
not judicial candidates infra at 36-38.
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U.S. at 54-56 (some kinds of campaign promises "may be declared illegal without
constitutional difficulty"); In re Kaiser, 759 P.2d 392, 400 (Wash. 1988) (holding
statements of party affiliation do not refer to subject relevant to judicial qualification
and therefore are not protected by First Amendment). Recognizing that the judiciary
has a different job to do, Minnesota has provided that its judicial offices are
nonpartisan. Minn. Stat. § 204B.06, subd. 6 (1998); Peterson v. Stafford, 490 N.W.2d
418, 420 (Minn. 1992). Thus, restrictions on Minnesota judicial candidates' speech are
entirely different from limitations on the speech of candidates for partisan office, such
as those in Eu, 489 U.S. at 217 (striking statute making it misdemeanor for primary
candidates to claim endorsement by party).
Another important aspect of the restraint in this case is that it does not
discriminate in favor of one viewpoint or other. Minnesota's restraint of judicial
candidates' First Amendment rights is a straightforward restriction of expression, rather
than being incidental to some other type of regulation, such as a content-neutral time,
place, or manner restriction, and in one sense, it is not content-neutral because it
restricts speech on the basis of subject-matter. In Burson v. Freeman, 504 U.S. 191
(1992), the Supreme Court considered a state law establishing a 100-foot "campaign-
free" zone around polling places. Justice Blackmun rejected the assertion that the law
was content-neutral: "Whether individuals may exercise their free speech rights near
polling places depends entirely on whether their speech is related to a political
campaign." Id. at 197. Similarly, in this case, the bans on accepting political party
endorsements, attending political party gatherings, identifying oneself as a party
member, announcing views on disputed legal and political issues, and soliciting funds
depend entirely on the subject matter of the speech. See Hill v. Colorado, 120 S. Ct.
2480, 2500 (2000) (Souter, J., concurring) (government held to very exacting and rarely
satisfied standard when it disfavors discussion of particular subjects or articulation of
particular viewpoints).
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However, the restriction in this case avoids discriminating against a particular
viewpoint, which is the most serious threat to First Amendment rights. See R.A.V. v.
City of St. Paul, 505 U.S. 377, 387-90 (1992) (treating "content discrimination" not as
an evil in itself, but as evidence that "official suppression of ideas is afoot"). In United
States Civil Service Commission v. National Association of Letter Carriers, 413 U.S.
548 (1973), the Supreme Court entertained a challenge to the Hatch Act, which
prohibited federal employees from taking an active part in political management or
political campaigns. The Court prefaced its analysis with the observation that the
challenged restrictions did not discriminate on the basis of viewpoint:
The restrictions so far imposed on federal employees are not aimed at
particular parties, groups, or points of view, but apply equally to all
partisan activities of the type described. They discriminate against no
racial, ethnic, or religious minorities. Nor do they seek to control political
opinions or beliefs, or to interfere with or influence anyone's vote at the
polls.
Id. at 564. Accord Morial, 565 F.2d at 301-02 (requirement that sitting judge resign
before running for a non-judicial office did not penalize belief in any particular idea and
therefore did not touch core First Amendment values). Thus, although Canon 5 does
burden First Amendment rights, the burden is less onerous than it might otherwise be
because Canon 5 does not discriminate on the basis of viewpoint and because it
governs only judicial elections.
Because the restrictions on the employees' rights in Letter Carriers were similar
to those of Canon 5, the defendants suggest we look to Letter Carriers and cases
following it, which judged restrictions on speech of government employees under a
balancing test less rigorous than strict First Amendment scrutiny. See Letter Carriers,
413 U.S. at 564. Wersal argues that we cannot apply the Letter Carriers balancing test
to a restriction on his speech because he is not a government employee. But even
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though he is not presently a government employee, Canon 5 applies to him only insofar
as he seeks to become one. The State can reasonably conclude that Wersal's actions
as a candidate could affect his actions as a judge if he is elected, see Buckley v. Valeo,
424 U.S. at 26-27 (discussing danger of corruption from contributions to "current and
potential office holders"), and so the reasoning of the balancing test cases fairly applies
to him. However, the restrictions in this case are different from the Hatch Act
provisions challenged in Letter Carriers because, while the Hatch Act restrained
political activity of government employees, Canon 5 restrains the activity of candidates
engaged in an election contest. The burden on the plaintiff in either case may be
comparable, but the public's interest in free speech is greater where the person subject
to restrictions is a candidate for public office, about whom the public is obliged to
inform itself. Therefore, we will invoke strict scrutiny and examine the restrictions at
issue to determine whether they are narrowly tailored to serve a compelling state
interest.8 See Stretton, 944 F.2d at 141-42; see generally California Democratic Party
v. Jones, 120 S. Ct. 2402, 2412 (2000); Burson, 504 U.S. at 198; Brown, 456 U.S. at
53-54.
III.
The governmental interests put forth to justify Canon 5 are undeniably
compelling. The Boards contend that the restrictions are necessary to guarantee the
independence of the Minnesota judiciary, which in turn is crucial to preserve the justice
of its courts of law and its citizens' faith in those courts. There is simply no question
but that a judge's ability to apply the law neutrally is a compelling governmental interest
of the highest order.
8
The effects of Canon 5 on speech and associational rights, respectively, are so
closely intertwined that, having decided to apply strict scrutiny because of the effects
on speech, we need not consider whether the effects on associational rights alone
would have called for a less rigorous standard.
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Judges should decide cases in accordance with law rather than with any
express or implied commitments that they may have made to their
campaign supporters or to others . . . . Justice under law is as
fundamental a part of the Western political tradition as democratic self-
government and is historically more deeply rooted, having been
essentially uncontested within the mainstream of the tradition since at
least Cicero's time . . . .
Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 227 (7th Cir. 1993). Accord
Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (3d Cir. 1991) ("There can be no
question . . . that a state has a compelling interest in the integrity of its judiciary . . . .
If judicial candidates during a campaign prejudge cases that later come before them,
the concept of impartial justice becomes a mockery."); Morial v. Judiciary Comm'n,
565 F.2d 295, 302 (5th Cir. 1977) ("Ours is an era in which members of the judiciary
often are called upon to adjudicate cases squarely presenting hotly contested social or
political issues. The state's interest in ensuring that judges be and appear to be neither
antagonistic nor beholden to any interest, party, or person is entitled to the greatest
respect.").
The plaintiffs contend that Minnesota has no interest in the independence of its
judiciary because it has chosen to make its judges stand for election. Wersal says:
"Contrary to popular understanding—even among lawyers—Minnesota does not have
an 'independent' judiciary. Minnesota has an elected judiciary that its founding citizens
specifically adopted in the Minnesota Constitution to insure its judiciary was not
'independent' from the voters." Wersal argues that when the citizens at the Democratic9
Minnesota constitutional convention in 1857 debated whether the judiciary should be
9
In Minnesota there were two constitutional conventions, one Democratic and
one Republican. The two drafts resulting from those conventions were consolidated
and then submitted for ratification. Peterson v. Stafford, 490 N.W.2d 418, 420 n.10
(Minn. 1992).
-20-
appointed or elected, they considered the then-recent Dred Scott10 decision. They
decided to choose judges by election and to give them finite terms, rather than life
tenure, in order to retain the ability to oust unsatisfactory judges.
The Minnesota Supreme Court has considered the broad history of Minnesota
judicial elections and has concluded that the State has historically pursued the ideal of
an independent judiciary. In Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992), the
Minnesota Supreme Court considered an equal protection challenge to Minn. Stat. §
204B.36, subds. 4 and 5 (1990), which provided that an incumbent judge should be
designated as such on the ballot. In explaining the reason for the designation, the court
identified the underpinnings of the Minnesota selection process as the search for an
independent judiciary:
The methods by which the federal system and other states initially
select and then elect or retain judges are varied, yet the explicit or implicit
goal of the constitutional provisions and enabling legislation is the same:
to create and maintain an independent judiciary as free from political,
economic and social pressure as possible so judges can decide cases
without those influences[11] . . . . While the framers of our state
constitution have developed a system of selection and election quite
different from that federal scheme, they too designed a plan to recognize
the uniqueness and independence of the state judiciary.
Id. at 420. Peterson traced the history of the Minnesota judicial selection process
beginning with the adoption of the Minnesota Constitution in 1857, which provided that
judges of the Supreme Court should be elected for seven-year terms, Minn. Const. art.
10
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856).
11
The Minnesota Supreme Court has thus with great precision and specificity
answered the dissent's rhetorical question, "Independent from what?" Infra at 59.
-21-
6, § 3 (1857), so that judicial elections did not coincide with elections for other offices.
490 N.W.2d at 420. Moreover, the 1857 Constitution provided that judges must be
"learned in the law." Minn. Const. art. 6, § 5 (1857). "Implicit in this requirement is
recognition that those elected as judges will be subject to the restrictive canons of
conduct governing the profession of law." 490 N.W.2d at 422. The term length was
reduced to six years in 1883, which made more apparent the "difficulties associated
with partisan judicial elections." Id. at 420. In 1912, the legislature enacted
nonpartisan ballot legislation, Act of June 19, 1912, ch. 2, 1912 Minn. Laws, Spec.
Sess. 4-6, which made the State's judicial offices nonpartisan. See id. at § 182. The
court characterized this reform as an attempt to ensure the "judicial impartiality
required to decide cases free from political maneuvering." 490 N.W.2d at 422.
Further, the Minnesota Constitution provided that whenever there was a judicial
vacancy, the governor should appoint the successor, who would serve until his
successor was elected.12 Minn. Const. art. 6, § 10 (1857). In 1972, at the time when
the State was studying the possible advantages of a merit selection plan, the time frame
for this successor election was extended from the next general election occurring more
than thirty days after the vacancy to the next general election occurring more than one
year following the vacancy, in order to allow the electorate enough time to assess the
new judge's competence. Minn. Const. art. 6, § 8 (amended 1972); see Peterson, 490
N.W.2d at 422-23.
In the context of this history, Peterson held that the ballot designation of the
incumbent was rational:
12
Since 1991 a judicial selection commission, which is composed of members
appointed by the governor and by the justices of the supreme court, evaluates the merits
of applicants for mid-term vacancies and recommends to the governor three to five
nominees for each open position. Minn. Stat. §§ 480B.01, subds. 2, 8-11 (1998).
-22-
It seems clear that Minnesota has adopted its own middle-of-the-
road approach to judicial selection. The open election process has been
retained, but with a quasi-retention feature which simply informs the voter
who the incumbent candidate is and who the challenger is. This
arrangement acts as a check on the gubernatorial appointment process by
keeping the ultimate choice with the voters while, at the same time,
recognizing the unique independent nature of the judicial function.
490 N.W.2d at 425. Thus, the Minnesota Supreme Court has considered in depth the
history and structure of Minnesota judicial elections procedures and has concluded that
they are designed in large part to protect the independence of the State’s judiciary.13
Other courts considering the same question have held that the decision to elect
judges cannot be regarded as abandonment of a State’s interest in an independent
judiciary. See Buckley, 997 F.2d at 227 ("Judges remain different from legislators and
13
The dissent concludes that Peterson's use of the phrase "independent 'as
possible,'" infra at 67, must be viewed, not in light of Peterson's detailed historical
review, but rather in light of the dissent's independent review of Minnesota history. See
infra at 59-66. The deference we must give to state court opinions on matters of state
law does not allow us to supplant Peterson's considered views in favor of our own de
novo interpretation, nor may the dissent. The dissent also states that Canon 5
"subverts" Minnesota's policy, infra at 66, and seemingly presumes that Canon 5 is not
part of state law because it emanates from the state supreme court, rather than from the
state legislature. No one, including the dissent, has questioned the authority of the
Minnesota Supreme Court to promulgate ethical rules for incumbent judges and judicial
candidates. The same federalism principles which require us to defer to state courts'
interpretations of state law and to recognize that state laws embody the will of a State
also dictate that we recognize Canon 5 as a regulation that expresses Minnesota's will
as a sovereign entity. See Bush v. Gore, 121 S. Ct. 525, 534 (2000) (Rehnquist, C.J.,
concurring) ("in ordinary cases, the distribution of powers among the branches of a
State's government raises no questions of federal constitutional law, subject to the
requirement that the government be republican in character").
-23-
executive officials, even when all are elected . . . ."); Stretton, 944 F.2d at 142 ("The
fact that a state chooses to select its judges by popular election . . . does not signify the
abandonment of the ideal of an impartial judiciary carrying out its duties fairly and
thoroughly."); In re Chmura, 608 N.W.2d 31, 39-40 (Mich.) ("By providing for the
election of judges, the people of Michigan have not transformed judges into legislators
or executives . . . ."), cert. denied, 121 S. Ct. 77 (2000).
The governmental interest in an independent and impartial judiciary is matched
by its equally important interest in preserving public confidence in that independence
and impartiality. See Cox v. Louisiana, 379 U.S. 559, 565 (1965) ("A State may also
properly protect the judicial process from being misjudged in the minds of the public.");
Suster v. Marshall, 149 F.3d 523, 532 (6th Cir. 1988) (State's interest in preventing
judicial corruption or appearance of corruption compelling); cf. Reeder v. Kansas City
Bd. of Police Comm'rs, 733 F.2d 543, 547 (8th Cir. 1984) ("It is proper for a state to
insist that the police be, and appear to be, above reproach, like Caesar's wife."). Letter
Carriers stressed that the appearance of corruption resulting from partisan activities of
government employees could affect the entire government: "[I]t is not only important
that the Government and its employees in fact avoid practicing political justice, but it
is also critical that they appear to the public to be avoiding it, if confidence in the
system of representative Government is not to be eroded to a disastrous extent." 413
U.S. at 565.
Finally, a State has an interest in protecting its judges from pressure to
participate in partisan activities, if it reasonably concludes that this protection is
necessary to retain a high caliber of judges. "There could hardly be a higher
governmental interest than a State's interest in the quality of its judiciary." Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 848 (1978) (Stewart, J., concurring
in judgment). Letter Carriers applied an analogous principle when it justified the Hatch
-24-
Act partly on the ground that it meant to protect government employees from political
pressure from their superiors. 413 U.S. at 566-67.
We therefore conclude that the Lawyers and Judicial Boards have shown
compelling governmental interests14 to justify Canon 5, and we turn to the necessity and
narrow tailoring of the various restrictions found within it.
IV.
We first address Wersal's challenge to the three provisions of Canon 5(A) that
prohibit him from attending political party gatherings; from seeking, accepting, or using
endorsements from a party; and from identifying himself as a member of the party,
14
In arguing that the state interests we have identified are not compelling, the
dissent relies on Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), in
which the State sought to govern not the conduct of judges, but of the press in reporting
on judicial disciplinary proceedings. The dissent's discussion of Landmark
Communications suggests that the compelling interest we rely on is protection of judges
from criticism. Infra at 79. We rely on the State's interest in its judges' integrity and
independence, which requires keeping judges from doing (or appearing to do) things
that compromise their neutrality, rather than keeping others from talking or writing
about them. Minnesota seeks not to "shield[] judges from published criticism," infra
at 80 (quoting Bridges v. California, 314 U.S. 252, 270-71 (1941)), but to prevent them
from deserving such criticism. Moreover, the Supreme Court in Landmark
Communications did not reject the legitimacy of the State's proffered interests in the
reputation of its judiciary and the integrity of its disciplinary proceedings, but held that
the State had not shown that these interests would be "seriously undermined" unless the
State could use criminal sanctions against the defendant newspaper. Id. at 841, 845.
-25-
except as necessary to vote. Minn. Code of Jud. Conduct Canon 5(A)(1)(a) & (d)
(1998).15
A.
We must determine whether these restraints protect Minnesota's interests in the
integrity and quality of its judiciary. United States v. Playboy Entertainment Group,
Inc., 120 S. Ct. 1878, 1891 (2000). The burden of proof rests with the State. Id. at
1888.
A threshold question is what sort of evidence the Boards must provide
substantiating the threat to the governmental interest. In Nixon v. Shrink Missouri
Government PAC, 120 S. Ct. 897 (2000), the Supreme Court declined to answer this
question definitively, id. at 907, but gave this guidance: "The quantum of empirical
evidence needed to satisfy heightened judicial scrutiny of legislative judgments will
vary up or down with the novelty and plausibility of the justification raised." Id. at 906.
The asserted danger to the governmental interest in that case, danger of corruption
15
Canons 5(A)(1)(a) and (d) provide:
Each justice of the supreme court and each court of appeals and district
court judge is deemed to hold a separate nonpartisan office. MS 204B.06
Subd.6.
(1) Except as authorized in Section 5B(1), a judge or a candidate for
election to judicial office shall not:
(a) act as a leader or hold any office in a political
organization; identify themselves as members of a political
organization, except as necessary to vote in an election.
....
(d) attend political gatherings; or seek, accept or use
endorsements from a political organization . . . .
-26-
attendant on large campaign contributions, was neither novel nor implausible, so that
the State's burden was amply satisfied by its production of a state senator's affidavit and
newspaper articles showing cases of apparent corruption. Id. at 907-08. The Court
also assigned some evidentiary value to the passage of a campaign contribution
limitation by a large margin at a referendum, which demonstrated public concern about
corruption.16 Id. at 908. The Court quoted City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 51-52 (1986), in which the city's evidence was said to be adequate, "so
long as whatever evidence the city relies upon is reasonably believed to be relevant to
the problem that the city addresses." Id. at 907 n.6. Shrink Missouri also noted the
lack of evidence tending to disprove the State's theory. Id. at 908.
The idea that judicial integrity is threatened by judges deploying political
organizations in connection with campaigns for judicial office is neither novel nor
implausible. In Letter Carriers, the Supreme Court recognized that partisanship of
governmental officials created a risk of corruption that justified the restraint of those
officials' partisan activities. Although the Hatch Act applied to employees of the
executive branch, the Court's reasoning could as well have been written about judges
and in fact applies with even greater urgency to them:
It seems fundamental in the first place that employees in the
Executive Branch of the government, or those working for any of its
agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a
political party. They are expected to enforce the law and execute the
programs of the Government without bias or favoritism for or against any
political party or group or the members thereof. A major thesis of the
16
We held the voter initiative imposing contribution limits invalid under the First
Amendment in Carver v. Nixon, 72 F.3d 633, 645 (8th Cir. 1995); consequently, its
restrictions were not in force when Shrink Missouri was decided.
-27-
Hatch Act is that to serve this great end of Government—the impartial
execution of the laws—it is essential that federal employees, for example,
not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on
partisan political tickets. Forbidding activities like these will reduce the
hazards to fair and effective government.
United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548,
563-64 (1973). Accord LaMontagne v. St. Louis Dev. Corp., 172 F.3d 555, 557 (8th
Cir. 1999) (city employees), cert. denied, 120 S. Ct. 176 (1999); Reeder v. Kansas City
Bd. of Police Comm'rs, 733 F.2d 533, 547 (8th Cir. 1984) (police officers); Otten v.
Schicker, 655 F.2d 142, 144 (8th Cir. 1981) (same).
The restriction here was adopted by the Minnesota Supreme Court, which has
consistently over time perceived partisanship as posing a particular threat to judicial
integrity. Canon 7(A) of Minnesota's 1974 Code of Judicial Conduct also restricted a
judicial candidate's political activities broadly, specifically permitting a candidate for
elective judicial office to appear at "other than partisan political gatherings during the
year in which he is a candidate." Minn. Code of Judicial Conduct Canon 7(A)(2)
(1974) (emphasis added). The comments of the advisory committee accompanying the
1995 Minnesota Code of Judicial Conduct state: "Deference to the judgments and
rulings of courts depends upon public confidence in the integrity and independence of
judges. The integrity and independence of judges depends in turn upon their acting
without fear or favor." Canon 1(A) cmt. In proposing to the court the 1997
amendments to clarify the prohibitions on partisan conduct the Judicial Board stated:
"The Judicial Standards Board members believe the proposed language changes will
make it clear that judicial elections are to be nonpartisan. Minnesota has a long
tradition of nonpartisan judicial elections, and these changes will assure a strong,
independent judiciary."
-28-
Long before the present canons were adopted, justices of the Minnesota Supreme
Court had also expressed the idea that merely avoiding party designations on the ballot
was insufficient to protect the Minnesota judiciary from the dangers of partisan
involvement. In Moon v. Halverson, 288 N.W. 579 (Minn. 1939), a candidate for
registrar of deeds, an office designated by statute as nonpartisan, had solicited and
received the endorsement of a political party. The court held that the Minnesota
nonpartisan statute prescribed only that the candidate's party affiliation could not
appear on the ballot and that the candidate could not declare his party when filing for
office. The statute did not forbid party endorsement of candidates for nonpartisan
office. 288 N.W. at 581. Justice Loring, joined by Justice Olson, concurred specially
to add that this statute was not sufficient to protect the State's judiciary from the
dangers of partisan pressure, which he felt had been at work:
When candidates for such offices were placed on a non-partisan ballot it
was, it seems to me, the purpose of the legislature to lift the judgeships
above sordid political influence and to free the candidates from obligation
to a political party so that if elected they might render judicial instead of
partisan political decisions on matters where party programs, party
interests or even prominent party leaders might be involved. The abuse
and accusations of party treason which have been heaped upon some
judges in the recent past because of decisions thought to be contrary to
the interests of an indorsing party ought to be evidence enough of the
impropriety of party indorsements and of their purpose to induce partisan
political rather than impartial judicial decisions.
Id. at 581-82.
More recently, the court in Peterson v. Stafford, 490 N.W.2d 418, 425 (Minn.
1992), stated that the nature of judicial office requires the "holder studiously to avoid
partisan politics, refrain from all discussions of public issues and restrict one's
-29-
membership and participation in organization to those primarily of a professional
nature."
Additionally, the Boards have adduced evidence of the necessity of reform
measures in the form of affidavits by a former governor, Arne H. Carlson, and a former
Chief Justice of the Minnesota Supreme Court, A. M. (Sandy) Keith. Chief Justice
Keith was a member of the Minnesota Supreme Court when the Court considered and
approved the amendments to Canon 5. He testified that, based on his experience, if the
Minnesota Code were changed to permit partisan activity, judges would be under
pressure to "decide cases in ways that would impress the judge's supporters favorably,"
and eventually, partisanship would damage the public's confidence in the judiciary.
Governor Carlson testified: "For the public to read newspaper headlines that a political
party has endorsed and will work to elect a particular candidate would greatly harm the
public's confidence in the independence of the judiciary." Both Chief Justice Keith and
Governor Carlson testified that they believed that allowing judicial elections to become
partisan contests would discourage many qualified candidates from seeking election.
The Boards have also produced a news account of the dangers partisan elections
have posed in Texas, which included interviews with witnesses who believed that
judges' decisions were affected by the need for political and financial support and that
the public perceived "that justice is for sale in this state." Editorials from Texas
newspapers reported a public perception that rulings were influenced by campaign
obligations. The testimony at the 1997 hearing before the Minnesota Supreme Court
on the proposal to amend Canon 5 was replete with references to the undesirable
situation existing in other States with partisan judicial elections, particularly Texas.
Amendment to Canon 5 of the Code of Judicial Conduct: Hearing Before the Minnesota
Supreme Court, No. C7-81-300, at 32, 36, 50, 65-68 (1997).
-30-
In contrast to the evidence amassed by the Boards, the plaintiffs have not
adduced evidence tending to disprove the threat to the integrity or reputation of the
judiciary from involvement with partisan politics. See Shrink Mo., 120 S. Ct. at 908.
This is an issue where "a long history, a substantial consensus, and simple common
sense," Burson, 504 U.S. at 211, combine to show that regulation is necessary to
protect the institution of the judiciary from the dangers of partisanship and corruption.
The record suffices to support the Minnesota Supreme Court's assessment that the
threat of actual and apparent corruption is real and reform measures are necessary. Cf.
Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 229 (1989) (striking ban
on party endorsement of candidates in party primaries where there was no evidence that
ban served purpose of preventing fraud and corruption). Additionally, there is record
evidence showing that without protection from partisan pressures, the State will be less
able to recruit judicial candidates of the highest caliber.
The dissent contends that Canon 5 is not necessary because it does not achieve
its stated end. Infra at 82-83. The argument is not precisely that Canon 5 does not
accomplish its end as far as it goes, but that it is underinclusive—in other words, that
the measure does not eliminate all the conduct posing the threat the government claims
to be addressing because a candidate may attend meetings of and accept endorsements
from politically active groups other than political parties. The dissent contends that in
cases burdening a fundamental right "failure to solve the entire asserted problem is
fatal." Infra at 83 n.44 (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484
(1996), and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 (1993)).
Wersal makes a similar argument, relying on Carey v. Brown, 447 U.S. 455 (1980),
and R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). These cases do not stand for such
a broad rule. Generally, underinclusiveness of a speech regulation is not an
independent ground for invalidating the regulation, but rather points to the possibility
that the government is discriminating on the basis of content or that the government's
-31-
asserted interest is not truly pressing. See City of Ladue v. Gilleo, 512 U.S. 43, 51-53
(1994); Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 493 (1997) (Souter,
J., dissenting). When underinclusiveness of a regulation betrays content-discrimination,
the standard of review must be raised to strict scrutiny. For instance, R.A.V.
invalidated an ordinance prohibiting fighting words directed at some groups, but not
others. The Supreme Court held that the principle for distinguishing between fighting
words that were prohibited by the ordinance and those that were not had nothing to do
with the rationale for permitting regulation of fighting words in the first place, but
instead amounted to content discrimination. Therefore, the Court could not apply the
relaxed standard appropriate for review of regulations of fighting words. 505 U.S. at
386. The ordinance failed under strict scrutiny review. Id. at 395-96. In this case, we
have already established that Canon 5 discriminates on the basis of content (though not
on the basis of viewpoint) and that we must conduct strict scrutiny. Supra at 17-19.
In cases in which underinclusiveness of a regulation suggests that the regulation
is not truly necessary to further a compelling governmental interest, the government's
obligation is to "establish the empirical reality of the problems it purports to be
addressing." Glickman, 521 U.S. at 443 (Souter, J., dissenting). As part of our strict
scrutiny, we have determined that the State established that a candidate's use of
political parties in judicial campaigns poses a real threat to the State's compelling
interests. Supra at 26-31. Thus, we have already undertaken the heightened scrutiny
that underinclusiveness of a regulation would suggest is necessary.
But even if the cases cited by the dissent and Wersal indicated that
underinclusiveness poses a First Amendment problem in its own right, these cases
concern only arbitrary underinclusiveness, which arises when the principle for
distinguishing regulated conduct from non-regulated conduct does not promote the
government's asserted purpose. In Carey, 447 U.S. at 457, 464, the challenged
-32-
regulation prohibited residential picketing other than labor picketing in order to protect
residential privacy. In Discovery Network, 507 U.S. at 415, the city banned use of
newsracks to distribute commercial handbills, but not newspapers, as a way of
preventing newsracks from becoming a safety hazard and eyesore. The types of
picketing and newsracks, respectively, that were regulated posed no greater threat to
the asserted governmental interest than those that were exempted from regulation, and
the regulations were thus invalid. See Carey, 447 U.S. at 465; Discovery Network, 507
U.S. at 424-28. In 44 Liquormart a ban on advertising alcoholic beverages was invalid
where any connection between the advertising ban and the State's desired result of
reducing alcohol consumption would have been "purely fortuitous." 517 U.S. at 506-07
(Opinion of Stevens, J.).
In contrast to these cases, when underinclusiveness results from a choice to
address a greater threat before a lesser, it does not run afoul of the First Amendment.
See, e.g., Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 470-71 (8th Cir.
1991); Stretton v. Disciplinary Bd., 944 F.2d 137, 146 (3d Cir. 1991) ("[W]e cannot
say that the state may not draw a line at the point where the coercive effect [of judicial
campaign fund-raising], or its appearance, is at its most intense—personal solicitation
by the candidate."). Indeed, a categorical rule against underinclusiveness for its own
sake would coerce governments to regulate speech more broadly than they consider
necessary, which is hardly the usual goal of First Amendment jurisprudence.17 Here,
the State has shown that a candidate's use of political parties in judicial campaigns
poses a greater threat to the compelling state interests than involvement of other kinds
of groups. See infra at 39-40. Therefore, the State did not violate the First Amendment
in so limiting Canon 5.
17
It is significant that the dissent in this case first argues that the Minnesota
Supreme Court has violated the Constitution in enacting Canon 5, and then makes the
antithetical assertion that it has not gone far enough.
-33-
B.
As the final step of our review of the three restrictions on Wersal's political
activity, we ask whether they are narrowly drawn to address the compelling state
interests. See California Democratic Party v. Jones, 120 S. Ct. 2402, 2412, 2414
(2000); Brown v. Hartlage, 456 U.S. 45, 54 (1982) (restriction must operate without
"unnecessarily circumscribing protected expression").
The Minnesota Supreme Court has attempted to prevent judicial candidates from
incurring, or seeming to incur, debts to political parties that could compromise their
independence, while allowing them alternative means of communicating subjects of
valid interest to voters. Candidates may, for instance, speak to gatherings other than
political organization gatherings; appear in newspaper, television, or other media
advertisements supporting their candidacy; and distribute pamphlets and other
promotional literature. Canon 5(B)(1). Furthermore, candidates may establish
committees to campaign for them in various ways, including obtaining public
statements of support (other than from political organizations). Canon 5(B)(2).
Wersal argues that since various other States and the drafters of the ABA Model
Code of Judicial Conduct have not found it necessary to forbid attendance at party
gatherings, acceptance of party endorsements, and identification of party affiliation,
Minnesota's restrictions must be broader than necessary. But Wersal relies on the laws
of States that have in fact limited political activity by measures similar to those before
us.18 There is also the authority of Letter Carriers and the other cases in which courts
18
E.g., Fla. Code of Jud. Conduct Canon 7(C)(3) (imposing various limits on
speaking at political gatherings, including prohibition on announcing party affiliation);
Ky. Sup. Ct. R. 4.300, Canon 5(A)(2) (allowing candidate to state party affiliation only
in response to direct question); Okla. Stat. Ann. tit. 20, § 1404(B)(6) (West 1991 &
-34-
held it was proper to limit partisan political activity of executive employees. See supra
at 24-25.
The Party contends that the prohibition on disclosing party affiliation is not
narrowly tailored because it prohibits disclosing past party affiliation as well as present.
The Judicial Board states that it "simply prevents the judge from affirmatively stating
his current political affiliation." However, the report submitted to the Minnesota
Supreme Court at the time the party affiliation language was adopted states that it
would prohibit candidates from identifying themselves "as past or present members of
a political organization." The language was adopted as proposed. The Minnesota
Supreme Court apparently concluded that the public would infer that identification of
past membership was tantamount to identification of present membership. See In re
Kaiser, 759 P.2d 392, 395 (Wash. 1988) (en banc) (concluding judge violated
prohibition on stating party affiliation by stating past affiliation). It was therefore
reasonable to extend the prohibition on stating party affiliation to include past affiliation
as well, lest the measure be rendered ineffective.
The Party further contends that Canon 5 is not narrowly tailored because Canon
5(A)(3) applies to a candidate's supporters as well as to the candidate. Specifically,
Maxim argues that he had to avoid "seeking out any relationship with Gregory Wersal"
in order to avoid coming within the scope of persons who were prohibited by Canon
5(A)(3) from doing for Wersal what he could not do for himself—i.e., attending a party
Supp.) (making it a ground for removal of judge from office to make party affiliation
publicly known in connection with campaign for office); Or. Code of Jud. Conduct JR
4-102, 4-104 and Or. Rev. Stat. § 249.015 (1999) (candidate shall not publicly identify
candidate's political party membership except by registering to vote); S.D. Code of Jud.
Conduct Canon 5(C)(1)(a)(ii) (permitting candidate to identify party affiliation only to
vote); Wash. Code of Jud. Conduct Canon 7(A)(1)(e) (same).
-35-
gathering or seeking a party endorsement. Similarly, the members of Wersal's
campaign committee contend that the restriction is overbroad because the committee
was prohibited from seeking a party endorsement of Wersal. This argument has two
parts: first, that the regulation is overinclusive because it affects third parties who have
a relationship with Wersal; and second, that the regulation is vague because third
parties cannot predict under what circumstances their actions will be imputed to
Wersal.
Two district court cases have anticipated the overinclusiveness issue. In
Concerned Democrats v. Reno, 458 F. Supp. 60, 65 (S.D. Fla. 1978), and California
Democratic Party v. Lungren, 919 F. Supp. 1397 (N.D. Cal. 1996), courts held that
state laws prohibiting political party endorsements of judicial candidates or of all
nonpartisan candidates, respectively, were not narrowly tailored because they restricted
the political parties' behavior when it was only necessary to restrict the candidate's
behavior. Lungren assumed, arguendo, that the State had a compelling interest in
preventing nonpartisan office holders from engaging in partisan activity, but held that
the law "misse[d] the mark" in addressing that interest:
The evil sought to be combatted is the unseemly partisanship of
nonpartisan officeholders once they are in office, not the partisanship of
political parties (which, of course, is the very nature of political parties).
Section 6(b) purports to prevent officeholders from being "beholden" to
political parties by imposing a ban on the parties' speech about candidates
for office, rather than (as the Supreme Court approved in Letter Carriers)
a ban on the partisan political conduct of the officeholders themselves.
The distinction is crucial. The government has an interest in the manner
in which its elected officials conduct themselves while in office. The
government does not and cannot have a legitimate interest in silencing the
speech of third parties about the qualifications and political views of
candidates for those offices.
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919 F. Supp. at 1402.
These district court cases convincingly reason that because the State's compelling
interest is in the rectitude of the candidate, a narrowly tailored restriction will regulate
expressions by the candidate, not third parties. However, the language of Canon
5(A)(3) is so limited. It does not purport to govern what other persons do, but what the
candidate authorizes or knowingly permits them to do. The canon therefore does not
affect persons not subject to the candidate's authority and control. See Johnson v.
Holzemer, 116 N.W.2d 673, 679 (Minn. 1962) ("knowingly permit" extends only to
persons having right of authoritative control over actor who are actually aware of his
or her activity). Canon 5(A)(3) simply prohibits the candidate from accomplishing by
the acts of an agent what the candidate is forbidden to personally. The Director of the
Lawyers Board, the body charged with enforcing Canon 5(A)(3) in Wersal's case,
confirms that there is no threat of disciplinary action without the candidate himself
authorizing or permitting the action of the supporter. Insofar as Canon 5(A)(3)(a)
refers to members of the candidate's family, it does not limit their activities, but rather
affects the candidate's actions towards them: the candidate shall "encourage" them to
adhere to the standards applicable to the candidate. As for persons who are within the
candidate's authority and control as members of the candidate committees authorized
by Canon 5(B)(2), they have voluntarily assumed that relation, and therefore may
subject themselves to certain restraints which are necessary to make effective the
restrictions on the candidate. Cf. Letter Carriers, 413 U.S. at 581-82 (Appendix to the
Court's opinion) (United States Civil Serv. Comm'n Form No. 1236, which Congress
intended to serve as its definition of the general proscription against partisan activities,
id. at 572-74, prohibits "activity by indirection" when, by collusion or coercion,
employee causes another to do what employee may not do directly). The limitation of
Canon 5's reach to the candidate and to persons within the candidate's control thus
-37-
distinguishes this case from Eu, 454 U.S. at 221, in which there was an "outright ban"
on political parties endorsing candidates.
The Party argues that a candidate's supporters cannot tell under what
circumstances their actions will be imputed to the candidate. A restriction on speech
must not be so vague that people of ordinary intelligence cannot tell what it prohibits.
Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973). But see Berger v. Supreme Court,
No. 87-3935, 1988 WL 114792, at *3 (6th Cir. Oct. 31, 1988) (notice requirements
less stringent in enforcing non-criminal code of judicial conduct than if criminal
penalties at stake). Canon 5(A)(3)(c) limits the scope of its language by adding the
requirement that the candidate's permission be "knowing." This requirement prevents
the sort of violation by mistake the non-candidate plaintiffs claim has chilled their
speech. See Chulchian v. City of Indianapolis, 633 F.2d 27, 31 (7th Cir. 1980)
(ordinance prohibiting person from "permitting" conduct includes requirement that
person know of conduct and therefore is not unduly vague). Moreover, both Canon
5(A)(3)(a), dealing with family members, and Canon 5(A)(3)(c), dealing with
authorizing or knowingly permitting others to act, include the concept of the candidate's
right to control the speaker. Johnson, 116 N.W.2d at 679. Canon 5(A)(3) is therefore
not unduly vague.
C.
The Party contends that the restrictions on a candidate's partisan activity violate
its rights to equal protection because Canon 5 restricts association with political parties,
but not other organizations that could affect a judge's independence or the public's
perception of that independence. We have already determined that the restraints on
Wersal's speech and association are necessary to serve a compelling state interest. To
conclude that the same restraints violate the Equal Protection Clause, we would have
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to determine that Canon 5 burdens the rights of political party members more than
others and that "such differential treatment is not justified." California Med. Ass'n v.
FEC, 453 U.S. 182, 200 (1981). In Broadrick, in rejecting a First Amendment
overbreadth challenge to Oklahoma's restrictions on partisan activities by government
employees, the Supreme Court also rejected an equal protection challenge to the same
law:
Appellants also claim that § 818 violated the Equal Protection Clause of
the Fourteenth Amendment by singling out classified service employees
for restrictions on partisan political expression while leaving unclassified
personnel free from such restrictions . . . . [T]he legislature must have
some leeway in determining which of its employment positions require
restrictions on partisan political activities and which may be left
unregulated. And a State can hardly be faulted for attempting to limit the
positions upon which such restrictions are placed.
413 U.S. at 607 n.5 (citation omitted).
Our discussion regarding the State's interest in the independence of its judiciary
demonstrates how Minnesota has historically viewed partisanship as a particular threat
to the integrity of its courts, supra at 28-31, and we need not reiterate this discussion.
Restrictions reaching only partisan, rather than nonpartisan, political activity have been
upheld in other cases. See Letter Carriers, 413 U.S. at 562; Bauers v. Cornett, 865
F.2d 1517, 1524-25 (8th Cir. 1989) (application of statutes to nonpartisan activity
would have raised a different constitutional question than application to partisan
activity). Political parties specialize in the business of electing candidates and have a
powerful machinery for achieving that end, including large membership and fund-
raising organizations. Those parties are simply in a better position than other
organizations to hold a candidate in thrall. Moreover, because political parties have
comprehensive platforms, obligation to a party has a great likelihood of compromising
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a judge's independence on a wide array of issues. Finally, legislatures are bodies in
which, for the most part, the members owe allegiance to a political party, not only for
financial support and endorsement in their campaigns for office, but also for political
support within the legislative process itself. No single legislator has the power to enact
laws. Therefore, the sharing of common partisan affiliation plays an integral role in
enactment of legislation. If the judiciary is then expected to review such legislation
neutrally, a State may conclude that it is crucial that the judges not be beholden to a
party responsible for enactment of the legislation, or to one that opposed it.
It is also relevant that a judge's participation in associations other than political
parties is regulated by Canon 4, which imposes broad requirements that judges avoid
involvement that could cast doubt on their impartiality or interfere with proper
performance of their judicial duties. At the Minnesota Supreme Court's 1997 hearing
on amending Canon 5, DePaul Willette, Executive Secretary of the Judicial Board,
testified that the danger of judicial candidates affiliating with single-issue interest
groups was adequately addressed by the provision of Canon 5 prohibiting
announcement of the candidate's views on disputed legal or political issues, Canon
5(A)(3)(d)(i). Amendment of Canon 5 of the Code of Judicial Conduct: Hearing
before the Minnesota Supreme Court, No. C7-81-300, at 12-13 (1997).
We conclude that the State has justified its differential treatment imposing
greater restrictions on a judicial candidate's partisan political activities than on
association with other kinds of organizations.
V.
We turn next to Wersal's claim that Canon 5's "announce" clause, which
prohibits judicial candidates from announcing their "views on disputed legal or political
-40-
issues,"19 violates his free speech rights because it is not narrowly tailored to achieve
any compelling state interest.20 We have already determined that the interests proffered
by the State to justify this restriction are compelling governmental interests of the
highest order, so we proceed to the next step of our inquiry and address whether the
restriction is necessary to further these interests. See United States v. Playboy
Entertainment Group, Inc., 120 S. Ct. 1878, 1891 (2000); see also Brown v. Hartlage,
456 U.S. 45, 53-54 (1982).
A.
As we have discussed, it is consistent with the essential nature of campaigns for
legislative and executive offices for candidates to detail and make promises about the
programs that they intend to enact into law and to administer. For judicial officers,
19
Canon 5(A)(3)(d)(i) provides that a judge or a candidate for judicial office shall
not:
(i) make pledges or promises of conduct in office other than the faithful
and impartial performance of the duties of the office; announce his or her
views on disputed legal or political issues; or misrepresent his or her
identity, qualifications, present position or other fact, or those of the
opponent.
20
Wersal also challenges the announce clause as being vague. However, his
argument is based solely on the clause's relationship to Canon 5(A)(3), which prevents
him from "knowingly permit[ting]" others to announce his views on his behalf. We have
already held supra at 38 that the "knowingly permit" language is not unconstitutionally
vague, and we therefore reject this claim. Furthermore, our clarification of the
"knowingly permit" language is dispositive of the Party's claim that the announce clause
is unconstitutional as applied to third parties. Candidates are subject to discipline only
when third parties act as agents of the candidate or have voluntarily assumed a
relationship with the candidate as a member of the candidate's campaign committee.
The Code does not regulate the independent activities of third parties.
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however, a State may determine that this mode of campaigning, insofar as it relates to
how judges will decide cases, is fundamentally at odds with the judges' obligation to
render impartial decisions based on the law and facts. At the time of the campaign, the
candidate simply cannot predict what the facts or arguments in a particular case may
be, the precise way in which legal issues will present themselves, or other crucial
factors that need be considered before a court issues a final decision. See Berger v.
Supreme Court, No. 87-3935, 1988 WL 114792, at *3 (6th Cir. Oct. 31, 1988) ("[T]he
very purpose of the judicial function makes inappropriate the same kind of
particularized pledges and predetermined commitments that mark campaigns for
legislative and executive office.") (internal quotations omitted); Buckley v. Illinois
Judicial Inquiry Bd., 997 F.2d 224, 227 (7th Cir. 1993) (free discussion of judicial
candidate's views conflicts with the "historically more deeply rooted" concept of justice
under the law); Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (3d Cir. 1991)
(prejudging cases at campaign stage makes mockery of the concept of an impartial
judiciary and undermines public confidence in rule of law).
Canon 5's announce clause restrains candidates from making statements in their
campaigns about their views on disputed legal and political issues, and thus prevents
candidates from implying how they would decide cases that might come before them
as judge. Wersal maintains that this restriction is not necessary because Canon 5
already protects the State's interests through bans on candidates making pledges or
promises of conduct in office other than the faithful performance of their duties and on
candidates manifesting bias or prejudice inappropriate to the judicial office. See Canon
5(A)(3)(d)(i) & (ii).
To be sure, the pledges and promises provision of Canon 5(A)(3)(d)(i) addresses
the type of campaign conduct that most blatantly subverts the judicial office—pledges
by candidates to make specific decisions on the bench. However, it does not reach the
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full range of campaign activity that can undermine the State's interests in an
independent and impartial judiciary. It would not, for example, reach declarations by
candidates that legislation relating to hot-button social issues is or is not constitutional.
It also would not apply to candidates who publicized their opinions about how unsettled
legal issues should be resolved. Both instances raise the specter that the candidates are
declaring how they would decide questions that might come before them as judges in
order to gain support for their candidacies. See Laird v. Tatum, 409 U.S. 824, 836 n.5
(1972) (Rehnquist, J.) (Mem. on Motion for Recusal) ("In terms of propriety, rather
than disqualification, I would distinguish quite sharply between a public statement
made prior to nomination for the bench, on the one hand, and a public statement made
by a nominee to the bench. For the latter to express any but the most general
observation about the law would suggest that, in order to obtain favorable consideration
of his nomination, he deliberately was announcing in advance, without the benefit of
judicial oath, briefs, or argument, how he would decide a particular question that might
come before him as a judge.").
When a candidate is later called upon as a judge to preside over cases involving
disputed issues about which he or she has made campaign announcements, the judge
is placed in an awkward, if not impossible, position. Should the judge properly
determine, for example, that a law violates the Constitution, having already expressed
this opinion during the campaign, the judge risks appearing as though he or she
prejudged the case rather than gave it due consideration in light of the law, arguments,
and facts. This apparent rigidity can undermine the faith of the litigants and public in
the judge's decision and in the State's judicial system generally. See Stretton, 944 F.2d
at 142. On the other hand, should the judge reach a conclusion that departs from the
opinion expressed during the campaign, the judge risks being assailed as a dissembler.
Thus, the judge may hesitate to decide the case in a way that might lose votes at the
next election. Certainly, many judges have the fortitude to resist such pressures, but
-43-
we do not doubt that the potential of supporter abandonment at the next election can
weigh heavily on judges who know they were elected based on representations they
made during the last campaign. Cf. The Federalist No. 78, at 471 (Alexander
Hamilton) (Clinton Rossiter ed. 1961) (arguing against periodic popular election of
judges because it gives them "too great a disposition to consult popularity" when
rendering decisions).
Wersal does not explain why he believes the canon restricting candidates from
manifesting bias or prejudice inappropriate to judicial office fully protects the State's
interests left unshielded by the ban on candidates making improper pledges and
promises, and we conclude it does not. Canon 5(A)(3)(d)(ii) was added to the Code
when the Minnesota Supreme Court updated its ethical rules and brought them closer
to the 1990 version of the ABA Model Code, some twenty-two years after the
announce clause was promulgated; and we do not read the two provisions to address
the same conduct. The manifestation of bias provision, fairly read, is directed at words
and conduct that display personal animus against persons or groups, such as women or
minorities. Even if it could be construed to cover announcements about how a
candidate would decide cases if elected, settled rules of statutory interpretation require
that we decline to read it in this way. See Radzanower v. Touche Ross & Co., 426
U.S. 148, 153 (1976) (subsequently enacted law cast in general terms should not be
interpreted to supplant one dealing with specific subject unless absolutely necessary to
give effect to the language). We therefore reject any implication that the adoption of
the manifestation of bias provision rendered the announce clause unnecessary.
Wersal also challenges the sufficiency of the evidence the Boards have put forth
to justify this speech restriction. He argues that the State did not fulfill its evidentiary
obligation as a matter of law because the Boards did not prove there was any concrete
evidence showing the harmfulness of candidates announcing their views in the public
-44-
record before the Minnesota Supreme Court at the time the court adopted the announce
clause. This argument misapprehends the Boards' evidentiary burden in this case.
In Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897, 907-08 (2000),
for example, the Court stated that to sustain a law setting contribution limits, it was
enough for the State to adduce evidence substantiating legislative concerns about the
actual or perceived corruption associated with large contributions. As we have noted
supra, the corroborating evidence included a state senator's sworn statement that "large
contributions have 'the real capacity to buy votes,'" contemporaneous newspaper
accounts tending to show public officials were actually corrupted by contributions, and
the recent overwhelming passage of a statewide initiative indicating that the majority
of voters had concluded that contribution limits were necessary. Id. None of these
items were shown to be part of the public record before the legislature at the time the
legislature enacted the law.
Burson v. Freeman, 504 U.S. 191 (1992), provides an example of the type of
corroborating evidence that can support a speech restriction subject to strict scrutiny.
In Burson, the Court entertained a challenge to a law establishing a 100-foot
"campaign-free" zone around polling places that was designed to protect against voter
intimidation and election fraud. As evidence showing that the law was necessary, the
Court looked to nineteenth century ballot reforms and traced the development of
restrictions on election-day electioneering. Id. at 202-05. It also noted that all fifty
States limit access to areas in or around polling places. Id. at 206. Taken together, this
evidence revealed a "widespread and time-tested consensus" about the problems of
voter intimidation and voter fraud which corroborated the State's conclusion that some
sort of "campaign-free" zone around voting compartments was necessary. Id.
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In this case, the Boards have met their evidentiary burden by offering evidence
of widespread and longstanding consensus among members of the bench and bar about
the necessity of restrictions on campaign speech that conveys a judicial candidate's
propensity to decide cases in a particular way. Three-quarters of a century ago, the
ABA promulgated the nation's earliest formalized standards of professional conduct for
judges, the Canons of Judicial Ethics. Canon 30 provided that a candidate for judicial
office "should not announce in advance his conclusions of law on disputed issues to
secure class support." Canon 30 (1924). Developed and drafted by a committee
chaired by Chief Justice William Howard Taft and later approved by delegates to the
ABA's 1924 annual meeting, see Jeffery M. Shaman et al., Judicial Conduct and Ethics
§1.02 (3d ed. 2000), the canon reflects the views of members of the legal profession
as to what ethical restrictions are needed to protect the integrity of the judiciary. Many
state courts reached similar conclusions and adopted the ABA Canons for their own
jurisdictions, id. at §1.02 n.14, including the Minnesota District Judges Association,
whose members voted to do so unanimously at a conference in 1950.
In the early 1970s, the ABA committee charged with drafting the Model Code
of Judicial Conduct included a restriction on candidate speech similar to the restriction
contained in 1924 code. See ABA Model Code of Jud. Conduct Canon 7(B)(1)(c)
(1972). The ABA's 1972 Model Canon 7 is the pattern on which Minnesota's announce
clause is based, and a majority of States that have an elected judiciary promulgated
ethical rules prohibiting candidates from announcing their views on disputed legal and
political issues. See Patrick M. McFadden, Electing Justice: The Law and Ethics of
Judicial Election Campaigns 85 (1990). In 1990, when the ABA revised its Model
Code, it adopted a different formulation of the candidate speech restriction, but one that
continues to restrict more speech than the pledges-and-promises provision. Model
Canon 5 restrains candidates from making "statements that commit or appear to commit
the candidate with respect to cases, controversies or issues that are likely to come
-46-
before the court." ABA Model Code of Jud. Conduct Canon 5(A)(3)(d)(ii) (1990). A
number of States have revised their rules in accordance with the 1990 "commitment"
canon.21 Today, most States with an elected judiciary have campaign speech
restrictions patterned after either the 1972 or 1990 ABA model canons.22
Minnesota Supreme Court decisions such as Moon v. Halverson, 288 N.W. 579
(Minn. 1939), and Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992), also provide
insight into factors that would have informed the court's decision to adopt the announce
clause. As we have discussed, in both cases Minnesota justices commented on
historical problems resulting from close proximity between judicial elections and
21
See, e.g., Ariz. Sup. Ct. R. 81, Canon 5(B)(1)(d)(ii); Ark. Code of Jud.
Conduct Canon 5A(3)(d)(ii); Cal. Code of Jud. Ethics Canon 5(B); Fla. Code of Jud.
Conduct Canon 7(A)(3)(d)(ii); Ga. Code of Jud. Conduct Canon 7(B)(1)(c); Ill. Sup.
Ct. R. 67, Canon 7(A)(3)(d)(i); Kan. Sup. Ct. R. 601A, Canon 5(A)(3)(d)(ii); Ky. Sup.
Ct. R. 4.300, Canon 5(B)(1)(c); La. Code of Jud. Conduct Canon 7(B)(1)(d)(ii); N.Y.
Code of Jud. Conduct Canon 5(A)(4)(d)(ii); Ohio Code of Jud. Conduct Canon
7(B)(2)(d); S.D. Stat., ch. 16-2, app., Canon 5(A)(3)(d)(ii); Tenn. Sup. Ct. R. 10,
Canon 5(A)(3)(d)(ii); Wash. Code of Jud. Conduct Canon 7(B)(1)(c)(ii).
22
A few States proscribe only improper campaign pledges and promises. See,
e.g., Or. Code of Jud. Conduct JR 4-102(B); Utah Code of Jud. Conduct Canon
5(C)(1). Other States impose different, yet significant speech restrictions. See, e.g.,
Tex. Code of Jud. Conduct Canon 5(2)(i) (no "indicat[ing] an opinion on any issue that
may be subject to judicial interpretation by the [judge/candidate if elected into office],
except that discussion of an individual's judicial philosophy is appropriate if conducted
in a manner which does not suggest to a reasonable person a probable decision on any
particular case"); Wis. Sup. Ct. R. 60.06(3) (prohibiting "suggestions of conduct in
office which appeal to the cupidity or partisanship of the electing or appointing
power"); see also Ala. Canons of Jud. Ethics Canon 7(B)(1)(c) (candidate "shall not
announce in advance the candidate's conclusions of law on pending litigation"); Colo.
Code of Jud. Conduct Canon 7(B)(1)(c) (candidate may not "announce how the judge
would rule on any case or issue that might come before the judge").
-47-
partisan politics. It is reasonable to infer that the prohibition on candidates announcing
their views on disputed issues was intended in part to prevent judicial campaigns from
becoming routine political contests, thereby jeopardizing the independence and integrity
of the State's judiciary. This inference is corroborated by evidence showing that the
Minnesota Bar Association, District Judges Association, and the Conference of Chief
Judges recently recommended against the adoption of the less-restrictive 1990 ABA
commitment canon because of concerns that liberalizing Canon 5's speech restrictions
would politicize judicial elections.
The plaintiffs have offered no contradictory evidence which might increase the
need for a more extensive showing by the State. See Shrink Mo.,120 S. Ct. at 906.
Wersal argues that the Lawyers Board's refusal to enforce the announce clause calls
into question the Boards' attempt to demonstrate that the clause serves compelling state
interests. That the Director of the Lawyers Board stated she would not prosecute
violations under the clause as a matter of prosecutorial discretion until it was upheld
by a court is not sufficient to increase the evidentiary burden. The Lawyers Board's
determination was based on the likelihood of a constitutional challenge to the announce
clause and the limited resources available to the Board for defending such a suit; it has
little bearing on whether certain campaign announcements can impair or be perceived
to impair judicial independence and impartiality.
The Lawyers and Judicial Boards have shown that this restriction furthers
compelling governmental interests in the independence and actual and perceived
impartiality of the judiciary.
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B.
Having concluded the restriction furthers compelling interests, we must examine
whether it is narrowly tailored. See California Democratic Party v. Jones, 120 S. Ct.
2402, 2414 (2000); Brown, 456 U.S. at 54.
The district court construed the announce clause to apply only to discussion of
a candidate's predisposition on issues likely to come before the candidate if elected into
office. Republican Party v. Kelly, 63 F. Supp. 2d 967, 986 (D. Minn. 1999). None of
the plaintiffs claimed in their opening briefs on appeal that the district court erred by
interpreting the language as it did. Wersal attempts to raise the issue in his reply brief.
It is well established that issues not argued in an opening brief cannot be raised for the
first time in a reply brief,23 and we will therefore analyze the announce clause as it has
been construed by the district court. We should add, however, that if the issue were
properly before us, we would not find error in the district court's interpretation. The
longstanding principle that courts should construe laws to sustain their constitutionality,
see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988), the Minnesota Supreme Court's adherence to this
interpretive principle, see In re R.A.V., 464 N.W.2d 507, 509 (Minn. 1991), rev'd on
other grounds by R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and the Judicial
Board's endorsement of the narrowed construction form a solid foundation for the
23
See, e.g., United States v. Vincent, 167 F.3d 428, 432 (8th Cir. 1999), cert.
denied, 120 S. Ct. 124 (1999); South Dakota Mining Ass'n v. Lawrence County, 155
F.3d 1005, 1011 (8th Cir. 1998); United States v. Davis, 52 F.3d 781, 783 (8th Cir.
1995); French v. Beard, 993 F.2d 160, 161 (8th Cir. 1993); see also United States v.
Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995) ("Absent some reason for failing to
[raise issue in opening brief], we will not consider an issue first raised in a reply
brief.").
-49-
district court's conclusion. Furthermore, the interpretation accords with Stretton, where
the Third Circuit interpreted identical language similarly. 944 F.2d at 144.24
As construed by the district court, the restriction prohibits candidates only from
publicly making known how they would decide issues likely to come before them as
judges. A similar construction was determined to be narrowly drawn in Stretton, 944
F.2d at 144, and we are persuaded that it is narrowly drawn here as well. These sorts
of campaign announcements are (or can appear to be) calculated to show that the
candidate will decide cases in a certain way if elected into office, and the implication
that the candidate will carry through with his campaign announcements can haunt the
candidate on the bench to the detriment of the State's judicial system. See id. But see
Buckley, 997 F.2d at 229 (questioning whether limiting construction would significantly
circumscribe scope of announce clause, giving example of civil war in Yugoslavia as
likely to come before courts as persecution defense to deportation).
Wersal has stated that the restriction prohibits candidates from discussing
virtually every topic related to their campaigns, and the dissent maintains that it
24
In claiming error, Wersal relies heavily on Buckley v. Illinois Judicial Inquiry
Bd., 997 F.2d 224, 229-30 (7th Cir. 1993) where the Seventh Circuit declined to read
an analogous canon narrowly. Having carefully studied both Stretton v. Disciplinary
Bd., 944 F.2d 137 (3d Cir. 1991), and Buckley, we believe that Stretton is more
persuasive. Buckley gives little heed to "our task [as courts] to construe [laws] so as
to comport with constitutional limitations" if consistent with the will of the lawmaker.
United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548,
571 (1973). Buckley also distinguished Stretton in part due to factors not present in
this case or in Stretton: a disciplinary body's determination that a judge violated the
clause when he commented truthfully on his past record and counsel's convoluted
arguments that the announce clause contained an implied "right of reply." 997 F.2d at
229.
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effectively bans all campaigning. But nothing in Canon 5(A)(3)(d)(i) restricts
candidates from discussing or publicizing information about their character, fitness,
integrity, background (with the exception of their political affiliation), education, legal
experience, work habits, and abilities, which are subjects the Minnesota General
Assembly has determined to be highly relevant to a candidate's qualification for office.
See Minn. Stat. § 480B.01, subd. 8 (listing criteria by which commission on judicial
selection shall evaluate persons applying for judicial vacancies to be filled by
gubernatorial appointment). The Minnesota Supreme Court has also indicated that
candidates may discuss and state their views on how they would handle administrative
duties if elected. See Bundlie v. Christensen, 276 N.W.2d 69, 72 (Minn. 1979) (no
ethical violation under Canon 7(B), the precursor to Canon 5(A), when candidate made
cutting costs of courtroom administration part of campaign platform); cf. Ackerson v.
Kentucky Judicial Ret. & Removal Comm'n, 776 F. Supp. 309, 314 (W.D. Ky. 1991)
(restraint on campaign speech about court administration would violate First
Amendment).
We further believe the Minnesota Supreme Court would conclude that general
discussions of case law or a candidate's judicial philosophy do not fall within the scope
of the announce clause. In 1990 the Judicial Board issued an advisory opinion, which
the Board has since made known to judicial candidates by letter, stating that Canon 5
does not prohibit candidates from discussing appellate court decisions. See Minnesota
Bd. on Judicial Standards, Informal Op. 10/10/1990. The Judicial Board has also
approved extensive lists of sample questions that interested voters could pose to
judicial candidates consistent with Canon 5. These questions are wide-ranging and
include such topics as a candidate's judicial philosophy, issues relating to the
administration of justice in criminal, juvenile, and domestic violence cases, and the
candidate's perception of a judge's role in the judicial system.
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While it is true that some judicial ethics advisory bodies in other States have
interpreted language identical to the announce clause to reach topics such as these, see,
e.g., Berger v. Supreme Court, 598 F. Supp. 69, 74 (S.D. Ohio 1984) (disciplinary
counsel's position that truthful criticisms of judicial administration and incumbents
prohibited); see generally, Patrick M. McFadden, Electing Justice: The Law and Ethics
of Judicial Election Campaigns 86-87 (1990) (collecting advisory opinions stating that
discussion of court administration, court rules, criminal sentencing, judicial philosophy,
published court decisions, etc. were improper), we believe the Minnesota Supreme
Court would view the matter consistently with the Judicial Board. The Judicial Board
has been intimately involved with the process of amending the Code over the years, and
its views are likely to reflect those of the Minnesota Supreme Court. As the Third
Circuit in Stretton put it, "[w]e would be naive not to recognize that the [Judicial
Board's] position is, at the very least, a straw in the wind indicating the direction that
[the supreme] court will go." Stretton, 944 F.2d at 143. Furthermore, some of the
advisory opinions of other States' ethics boards conflict with the Minnesota Supreme
Court's decision in Bundlie on whether the announce clause prohibits announcements
about judicial administration.
Wersal cites several decisions in which courts have struck down similar canons
as overly broad restrictions on speech. E.g., Buckley, 997 F.2d at 228-29; Beshear v.
Butt, 863 F. Supp. 913, 917-18 (E.D. Ark. 1994); ACLU v. Florida Bar, 744 F. Supp.
1094, 1097 (N.D. Fla. 1990); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 956-57 (Ky.
1990). However, these cases proceed on the assumption that judicial candidates are
left with little to discuss and to put before the voters other than their "name, rank, and
serial number," Buckley, 997 F.2d at 227, "biographical data," ACLU v. Florida Bar,
774 F. Supp. at 1098, or "professional history," J.C.J.D., 803 S.W.2d at 956, and are
therefore distinguishable.
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The announce clause, as construed by the district court, is narrowly tailored to
further compelling governmental interests.
VI.
Wersal contends that Canon 5(B)(2),25 which prohibits judicial candidates from
personally soliciting campaign funds, violates the First Amendment because it is not
narrowly tailored.
We have no difficulty in concluding that Canon 5(B)(2) is necessary to serve
compelling state interests. Indeed, Wersal does not dispute these points. Raising
campaign funds, a practical requirement for judicial candidates who face popular
election, has been identified as presenting "the greatest of all conflicts" between
necessity and judicial impartiality. See E. Wayne Thode, Reporter's Notes to Code of
25
In full, Canon 5(B)(2) provides:
A candidate shall not personally solicit or accept campaign contributions
or solicit publicly stated support. A candidate may, however, establish
committees to conduct campaigns for the candidate through media
advertisements, brochures, mailings, candidate forums and other means
not prohibited by law. Such committees may solicit and accept campaign
contributions, manage the expenditure of funds for the candidate's
campaign and obtain public statements of support for his or her
candidacy. Such committees are not prohibited from soliciting and
accepting campaign contributions and public support from lawyers, but
shall not seek, accept or use political organization endorsements. Such
committees shall not disclose to the candidate the identity of campaign
contributors nor shall the committee disclose to the candidate the identity
of those who were solicited for contribution or stated public support and
refused such solicitation. A candidate shall not use or permit the use of
campaign contributions for the private benefit of the candidate or others.
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Judicial Conduct 98 (ABA 1973). Judges, more than officeholders in other branches
of government, risk the appearance that those who contribute to their campaigns can
impermissibly influence governmental processes. When judges obtain funds from a
group that has an interest in the outcome of litigation, such as the plaintiffs' or
defendants' bar, judges can appear beholden to that group for their accession to office,
creating the expectation that the judges will favor their benefactors accordingly. See
In re Fadeley, 802 P.2d 31, 40 (Or. 1990) ("A judge's direct request for campaign
contributions offers a quid pro quo or, at least, can be perceived by the public to do
so."); cf. Nixon v. Shrink Mo. Gov't PAC, 120 S. Ct. 897, 905-06 (2000) (public
perception that large donors can "call the tune" for candidates can harm democratic
processes); Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam). Even if judges
receive contributions from a broad cross-section of persons and interests, the
appearance of impropriety hangs over them if they adjudicate cases in which a litigant
or counsel has contributed, or refused to contribute, to their campaign. See Stretton,
944 F.2d at 145 (noting the unseemliness of judges presiding over cases in which
lawyers have helped fund judicial campaign chests).
Recognizing the unique difficulties presented by judicial campaign fundraising,
Canon 5(B)(2) seeks to insulate judicial candidates from the solicitation and receipt of
funds while leaving open ample alternative means for candidates to raise the resources
necessary to run their campaigns. To this end, Canon 5(B)(2) provides that candidates
may establish campaign committees to conduct fundraising on their behalf. The Code
does not limit the amount individuals can contribute to the candidate's campaign fund
or the amount the campaign committee may raise. Canon 5(B)(2) imposes only two
restrictions related to campaign finance on the committee: its members cannot disclose
to the candidate the identity of contributors or those who were solicited to contribute
but declined, and they cannot permit the campaign funds to be used for private benefit.
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Wersal's objection to this fundraising arrangement is limited: He does not
challenge the campaign committee setup or the restrictions placed on the committee's
members. Rather, he suggests that a narrowly tailored rule would allow candidates to
solicit funds from large groups and to send out letters over their signatures requesting
money. He argues that the State's concern over the corrupting influence of money on
judicial candidates is fully redressed by the provision that prevents the campaign
committee from revealing the identity of campaign contributors.
Wersal is correct that the knowledge-screening provision of Canon 5(B)(2)
lessens several of the problems attendant on judicial campaign fundraising; we reject
his conclusion, however, that it obviates the need for limitations on candidates
soliciting funds from groups personally or by letter. When a judicial candidate seeks
funds directly from those who stand to gain from the candidate's decisions in office, the
State may conclude that his activity is incongruous with the decorum of judicial office
whether or not the candidate is shielded from knowing who ultimately contributed.
Particularly when candidates target groups who have pecuniary or ideological interests
in litigation likely to come before the court, the mere act of solicitation can contribute
to the appearance, accurate or not, that "justice is for sale" and the expectation of
impermissible favoritism. See Fadeley, 802 P.2d at 40.
Wersal makes a secondary argument that when Canon 5(B)(2) deprives him of
the opportunity to solicit funds from large groups or by mail it prevents him from
running an effective campaign. The Supreme Court has said that restrictions on
campaign financing must leave candidates with the ability to accumulate sufficient
resources for effective advocacy. Shrink Mo., 120 S. Ct. at 908-09; Buckley, 424 U.S.
at 21. Citing the impracticability of his being accompanied by a campaign committee
member who could "utter the magic words" to solicit funds, Wersal argues his
statewide campaign efforts were frustrated. However, no provision in the Code
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specifies that members of a campaign committee must request contributions in person.
Canon 5(B)(2) expressly permits committees to conduct campaigns through mailings,
brochures, and advertisements. Wersal has not alleged that these alternatives are
ineffective fundraising mechanisms. Accordingly, he has not demonstrated that Canon
5's restrictions stifled his campaign efforts. See also Shrink Mo., 120 S. Ct. at 909 ("a
showing of one affected individual does not point up a system of suppressed political
advocacy that would be unconstitutional under Buckley").
In a separate argument, the Party asserts that Canon 5(B)(2) is not narrowly
tailored as applied to third parties. Much of this argument is based on a misreading of
a Code section we have already clarified. Canon 5(A)(3)(c), which states that
candidates "shall not authorize or knowingly permit any other person to do for the
candidate what the candidate is prohibited from doing," is violated only when persons
act as agents of the candidate. As a result, no ethical violations occur if third parties
solicit or expend funds independently of Wersal and his campaign committee.
The district court did not err in determining that this restriction is narrowly
tailored to further compelling state interests.
VII.
The judgment of the district court is affirmed.
BEAM, Circuit Judge, dissenting.
At the outset, I admit that, insofar as I have been able to discern, Minnesota has
a judicial system peopled with individuals of intellect, integrity and character, fully
capable of making difficult decisions, consistent with the interests of the people of the
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state. However, such a condition is beside the point because many other states have
achieved the same essential goals without trenching upon clearly established
constitutional rights. The court today holds that laws prohibiting candidates for public
office from voicing their views as to issues pertinent to their conduct in office, or their
opponent's conduct in office, or from appearing or speaking to like-minded citizens, are
not only permissible but are apparently necessary to a well-ordered democracy.
Because in my view such a result flatly contradicts the edicts of the First Amendment,
I respectfully dissent.
The court and I part ways in three critical respects. First, the court misconstrues
Minnesota law, reading it with such latitude as to contradict one-hundred fifty years of
development in Minnesota's judicial selection processes. Second, the court supplants
constitutionally guaranteed rights with its own notions of preferred judicial policy.
Finally, the court countenances restrictions on fundamental, protected activity that are
neither necessary nor narrowly tailored. In the final analysis, the court sustains a set
of restrictions which probably have no practical effects other than to quash election-
related speech and association, and thus undermine a democratic process–precisely the
fear that prompted the drafting of the First Amendment.
I.
Prior to even contemplating the suppression of otherwise protected First
Amendment activity, a state must assert a compelling interest. Presumably, that interest
must reflect a state's actual and lawfully adopted policy. The court accepts as
"undeniably compelling" appellees assertion that in effecting Canon 5, the Minnesota
Supreme Court furthered Minnesota's interest in maintaining the "independence" of its
judiciary. Ante at 19. Certainly, all states share such an interest generally–such is the
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preferred state of the American judiciary.26 But different sovereigns give different
meanings to the term "independence." I believe the court has misconstrued Minnesota
precedent, and in doing so has used it to justify a policy prescription that lacks support
in Minnesota's constitutionally established public regimen.
The court, without further analysis, simply accepts appellees' claim that
Minnesota has "historically pursued the ideal of an independent judiciary." Ante at 21.
It relies heavily on the Minnesota Supreme Court's observation in Peterson v. Stafford,
490 N.W.2d 418 (Minn. 1992), that while the federal and its own system differ, they
both "create and maintain an independent judiciary as free from political, economic and
social pressure as possible." Id. at 420. In this, the court finds license to sustain as
consistent with Minnesota public policy anything which it considers to enhance judicial
26
The court distorts my views on judicial independence, implying, ante at 20, that
I would sacrifice such independence, and, presumably, its alleged by-product, "justice
under law," on an altar of "democratic self-government." (I assume the court is
referring to my concern for the democratic election process.) The court's statements
are seriously at variance with my views and my arguments in dissent. This case is not
about rules under which a neutral judiciary dispenses justice under canons of ethics
designed to support judicial independence, once the selection process is over. I wholly
agree that such a system should exist and be designed to enhance, through reasonable
state regulation, the ideals of judicial independence. This case is about the point at
which free speech and association collide directly with an attempt by the Minnesota
Supreme Court to manage (and I believe over manage) the election process in the name
of judicial independence of some definition.
My dissent simply and appropriately recognizes and discusses these competing
interests and reaches a result in line with the Constitution and Supreme Court
precedent. It is the court that insists that "one of the principles should give way
completely to the other," that is, judicial independence, whatever that proves to be
under the court's analysis, should trump the First Amendment when the election of a
judge is at stake. There is absolutely no support in federal law for the court's position.
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independence. But this latter term is subject to broad and varied interpretations, and
merely begs the question "independent from what?" While appointed judges are
"independent" from the electorate, elected judges, once elected, are hardly "dependent"
on the electors, and are "independent" from other elected officials. However, we are
not called upon to sustain our own notions of "independence," but Minnesota's. We
must therefore read the Minnesota Supreme Court's statement in Peterson in light of
that state's public policy as prescribed by its citizens. As it turns out, Minnesotans have
consistently rejected all attempts to narrow or curtail their elective franchise when it
comes to selecting judges. Rather, they have repeatedly strengthened popular control
over their judiciary.
The debate whether to appoint, retain or directly elect judges predates
Minnesota's founding. The federal drafters debated it in Philadelphia. See The Anti-
Federalist Papers & the Constitutional Convention Debates 120-27 (Ralph Ketcham
ed., Mentor 1986). Alexander Hamilton defended their subsequent choice in print,
arguing that elected judges would suffer "too great a disposition to consult popularity
to justify a reliance that nothing would be consulted but the Constitution and the laws."
The Federalist No. 78, at 471 (Clinton Rossiter ed. 1961). Anti-Federalists hotly
contested that position. Brutus counseled trepidation at the advent of a judiciary
"altogether unprecedented in a free country" which was to be "rendered totally
independent, both of the people and the legislature." Brutus XI, Letter of January 31,
1788, in Ketcham, ante, at 293. See also, George Mason, Speech in Opposition to the
Constitution, and Patrick Henry, Speech to the Virginia Ratifying Convention, both in
Ketcham, ante, at 174, 212 (arguing that the federal judiciary made the courts too far
removed from the citizenry).
The federal founders ultimately decided upon lifetime appointments, subject to
good behavior, placing us (ostensibly) beyond the cavil of partisan activity and populist
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suasion. U.S. Const. art. III. As federal judges, we understandably have a bias for this
method. Yet, we should not confuse the rationale behind our federal system with some
universal judicial raison d'etre, for different sovereigns value different policies. Some
elect only a few officers and rely largely on appointments, while others insist on
electing virtually every office-holder. Since Hamilton and Brutus debated, the
arguments on each side have been well known, and were so at Minnesota's founding.
Minnesota's first judiciary arrived under the auspices of the United States with
the Northwest Ordinance of 1787, which provided the Northwest Territories with
congressionally-appointed judges and governor-appointed local magistrates. Northwest
Ordinance §§ 4, 7 (1787); see generally, Hiram F. Stevens, History of the Bench & Bar
of Minn. (1904). In 1849, Congress created the Territory of Minnesota and provided
a similarly appointed judiciary. Act of Congress, March 3, 1849 §§ 2, 9, 11, 9 Stat.
403. Minnesotans did not warm to these arrangements. As one state founder noted,
"it has been the complaint of the Territory . . . that we have to submit to have our
Judges sent to us and have no voice in the selection . . . and [the people] have looked
forward with hope to the time when they could elect their own men." The Debates &
Proceedings of the Minn. Constitutional Convention 495 (1857) ("Democratic Debates
& Proceedings"). That chance came in 1857 when Congress authorized Minnesotans
to draw up a constitution. Act of Congress, Feb. 26, 1857, 11 Stat. 166.
Minnesota chose an interesting time to seek statehood. With the Civil War three
years off, and the Supreme Court's decision in Dred Scott v. Sandford, 60 U.S. 393
(1856), one year past, any prospective new state necessarily stood in the eye of a
hurricane.27 Against this backdrop, on June 1, 1857, Minnesotans elected delegates to
27
Abolitionist sentiment ran high in Minnesota and, while not reaching the levels
in other states, did result in some violence. Interestingly, among the slaves brought to
Minnesota during the pre-civil war period was Dred Scott, who from 1835-40 lived
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a constitutional convention. One historian gave the following description. "The feeling
between and within political parties was bitter. Republicans were not just Republicans
but 'Black Republicans' and 'Nigger Lovers.' The Democrats were divided into
'Regular' and 'Moccasin' Democrats, but were united for convention purposes." Julius
E. Haycraft, Territorial Existence & Constitutional Statehood of Minnesota (1946),
republished in 1 Minn. Stat. Ann. 145, 151; see generally, William Anderson, A
History of the Constitution of Minnesota (1921). Moreover, "[s]o intense was the
feeling that the Republicans and Democrats would not meet in the same convention.
The result was two conventions; delegates of each party held separate sessions in
different rooms in the old capitol." Haycraft, ante, at 151. The two bodies met
separately, largely without consultation. Even after a conference committee produced
a compromise document, each convention refused to sign a document soiled by the
other's signatures, so each separately signed largely identical documents. Id. at 151-52.
The records of these proceedings demonstrate that Minnesota's founders
grappled with precisely the same contours as their federal forebears. The Republicans
steadfastly insisted on an elected judiciary, but did debate the form of those elections.
Debates & Proceedings of the Constitutional Convention for the Territory of Minn.
334-35, 402 (1858) ("Republican Debates & Proceedings"). The question of politics
arose when a Mr. Galbraith proposed an amendment requiring that judicial elections
never be held on the same day as an election for any other office. He reasoned that
"the excitements of mere political and party issues should be kept as far as possible
from the election of the judges–that the people should elect the Judges, upon their
merits as judges–that they should be elected with the view of making them as
independent of political parties as possible." Id. at 406. In opposition, a Mr. Lowe
argued, "I do not believe it will be possible to separate the election of judges from
with his "owner," Surgeon J. Emerson, at Fort Snelling. Stevens, ante, at 30-36.
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political considerations." Id. The convention rejected Galbraith's amendment, and
opted for concurrent judicial elections.
The Democratic convention proved far more contentious. After a committee
failed to agree on a judicial selection method, the issue came to the convention floor.
Democratic Debates & Proceedings, ante, at 493-509. Those favoring the Hamiltonian
appointment model did so for two reasons, fear of populism and fear of political
entanglement.
First, they feared the populism that might result from an elected judiciary. One
vigorous opponent, a Mr. Setzer, argued:
The great object of an appointed Judiciary, is to secure stability upon the
part of the government, by having a power within the State conservative
enough to restrain the waves of popular excitement, when they sweep
over us as they have done in different States for years past. . . . Judges
represent no constituency and are elected by no constituency. They
represent nothing except the abstract ideas of equity and justice.
Id. at 495-96. The "abstract ideas of equity and justice" heralded were those set out
in Dred Scott–the culmination of the grand experiment that seventy years earlier Brutus
had observed was "altogether unprecedented in a free country." And the "waves of
popular excitement" that so rankled delegates were the popular sentiments of radical
abolitionist fervor. He continued, "[w]e see it in Wisconsin, in Iowa, and in all those
States where popular excitement in reference to negro-worship and disunion has had
its effect upon an elective Judiciary." Id.
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Minnesota's founding debate did not turn entirely on slavery. Those opposed to
an elected judiciary also raised precisely the same, eminently sensible concerns
troubling the court today. Another delegate, a Mr. Meeker, argued:
I contend that the Judges who are elected, are elected by parties, and are
the mere fuglemen of caucuses. The best trickster or the best manager of
caucuses is just as likely to be the nominee of a party as the most learned
man in the nation. . . . [T]he greatest curse that could befal [sic] any
people would be the establishment of a political court . . . . [A]nd our
Judges . . . if they are to be elected, must necessarily be essentially
political Judges; they cannot be anything else.
Id. at 500. They feared the instability such a system would create. "Whichever party
is in the ascendancy will change the system of jurisprudence to its own standard, and
there will be no security, no stability in anything." Id. at 501. Accordingly, a Mr.
Sherburne recommended adopting the venerable appointment mechanisms common
along the east coast. Id. at 497.
The prevailing delegates, those favoring judicial elections, met these arguments
head-on. Said a Mr. Emmett:
We hear a great deal of talk about an independent Judiciary. The phrase
is in everybody's mouth. What does it mean? Independent of whom?
Independent of what? Independent of the people . . . ? I say then that in
order to correct the errors of Judges–and it may be important to correct
them,–the office should be made elective.
Id. at 503. And as regards the fear that politics would infect an elected system, he
continued, "if the people are incapable of selecting their Judges, they are also incapable
of selecting the man who is to appoint the Judges . . . . The governor always selects
men belonging to his own political party, while the people often select them regardless
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of parties." Id. A Mr. Curtis responded to Mr. Sherburne: "[I]s a sufficient argument
in favor of an appointed Judiciary, that it is old? Is it all that can be said in its favor,
that it has grown hoary by age and usurpation–because it is all covered over from one
end to the other by corruption and fraud?" Id. at 498.
As these exchanges demonstrate, the arguments surrounding election and
appointment were well known and well met. Despite the concerns raised then and
marshaled again by the court today, Minnesotans of both parties opted for an elected
judiciary. Ultimately, they more feared the potential politics of an appointed bench and
saw popular election as the proper remedy. Given the political climate, they desired
more control over their judiciary. That was the policy adopted by the people of
Minnesota.
Minnesota's electorate has never since intimated a change in this policy. Indeed,
it has frequently reaffirmed judicial accountability to the electorate.28 In 1912, for
instance, the legislature required judicial candidates to run on a non-partisan ballot.
Peterson, 490 N.W.2d at 420. That statute in no way restricted a candidate's political
activities or ability to educate the voters as to his merits, opinions or values. Moon v.
Halverson, 288 N.W. 579, 580-81 (Minn. 1939). The reform's objective was to ensure
that candidates were elected on their own merits. Id. at 580. A merit-based election
necessitates the flow of information regarding candidates to the electorate.
28
Minnesota courts have consistently struck down rules depriving judicial offices
of their elective nature. See State ex rel La Jesse v. Meisinger, 103 N.W.2d 864, 866
(Minn. 1960); State ex rel Smallwood v. Windom, 155 N.W. 629, 633 (Minn. 1915);
State ex rel Rosckes v. Dreger, 106 N.W. 904, 906 (Minn. 1906); State ex rel Jordan
v. Bailey, 33 N.W. 778, 779 (Minn. 1887) .
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Minnesota has four times rejected the so-called Missouri Plan, whereby the
governor could fill vacancies by non-partisan appointment, and such appointees would
later be subject only to a retention vote. Maynard E. Pirsig, The Proposed Amendment
of the Judiciary Article of the Minn. Constitution, 40 Minn. L. Rev. 815, 815-19 (1955-
56); Peterson, 490 N.W.2d at 421 n.14. Again, voters retained their system of direct
electoral control.
In 1948, a commission recommended that candidates run against a specific
incumbent rather than against the field. Peterson, 490 N.W.2d at 421 n.14. It argued,
"[w]here several incumbents are running for re-election, each should stand or fall on
the basis of his own record. The present system does not permit this since opposing
candidates run against the field." Report of the Constitutional Comm'n of Minn. 43-44
(Oct. 1, 1948). Minnesota law was amended accordingly. See 14A Minn. Stat. Ann.
§ 204B.06; Gustafson v. Holm, 44 N.W.2d 443 (Minn. 1950) (sustaining requirement
that judicial candidates declare which specific seat is sought). Such seat-specific
elections increase the electorate's focus on a specific judge's conduct.
Thus, since first permitted to select its own judiciary, Minnesota has consistently
favored electorally-responsive judges. Its citizens have considered and rejected the
court's policy concerns,29 and have rejected appointment and retention systems that
29
Indeed, the Minnesota Supreme Court specifically refused to resurrect the
policy debates undergone at the constitutional convention.
There are many arguments, on grounds of both principle and expediency,
against the election of judges, either in special cases or generally. Such
arguments do not enter into our consideration. The fundamental law of
this state is, and always has been, that the selection of judges must be
submitted to the electors.
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would have curtailed or eliminated popular control. Minnesota has repeatedly affirmed
its citizens' right to elect their judges, and has bolstered that franchise with laws
enhancing merit-based elections and furthering the flow of information regarding the
candidates to the electorate.30 Canon 5 subverts this policy. The suppression of
election-related speech and association does not enhance the franchise. In fact, it
militates against the public's ability to elect judges based on their merits by denying
citizens a reasonable vehicle for self-information. The court assures that candidates
may still discuss their "character, fitness, integrity, background (with the exception of
their political affiliation), education, legal experience, work habits and abilities." Ante
at 51. However, these are simply not all of the qualities that piqued the interest of
Minnesota's founders, nor those which fully inform voters who are charged with the
selection of Minnesota's judiciary.
La Jesse, 103 N.W.2d at 866.
30
The court attempts to divorce my review of Minnesota judiciary history from
that undertaken by the Minnesota Supreme Court in Peterson, and paints the latter as
justifying its conclusion today. Ante at 23 n.13. But the review undertaken in Peterson
supported a regulation wholly different from that before us today. In Peterson, the
Minnesota Supreme Court reconciled Minnesota history with a measure requiring the
judicial election ballot to designate incumbent jurists as such. 490 N.W.2d at 424. The
Minnesota Court found that initiative consistent with Minnesota history and sustained
it because it enhanced the flow of information to Minnesota voters, which stands in
stark contrast to the measure before us today which suppresses that same flow of
information. Rather than address what the Minnesota Supreme Court meant by
"independent" in the proper context, the court simply transports the Minnesota court's
purposely cabined conclusions into today's opinion. But as my review, and that
undertaken in Peterson indicate, in the context of Minnesota public policy, an
"independent judiciary" means judges elected by well-informed, independent voters.
In undermining that process by stifling the free flow of information, the court merely
exacerbates the partial transfer of the Minnesota judicial selection machinery into the
hands of other narrow political influences as noted elsewhere in this dissent.
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The question here is whether Minnesota has expressed a sufficiently fundamental
policy interest in "independent" judicial elections to even warrant our proceeding to the
next stage of our constitutional inquiry. Certainly, in Peterson, the Minnesota Supreme
Court instructed us that Minnesota has an interest in making its judiciary as
independent "as possible." 490 N.W.2d at 420. But as the Minnesota Supreme Court
cannot trump its citizens' prescribed policy, "as possible" cannot be read to include
restrictions which curtail the elective franchise. Because Canon 5 does precisely that,
I believe the court has clearly misapplied Minnesota law.
II.
The preceding discussion may prove largely academic, because the restrictions
at issue in this case were not enacted by the Minnesota legislature but rather were
created by the Minnesota Supreme Court itself. While that court has not yet ruled that
its own regulations comport with fundamental state policy, it could just as easily do so.
And as a federal court, we defer to state courts on questions of state law. Indeed, we
wade into such questions only in the most dire of circumstances, for instance where
state law is being intentionally tortured to discriminate against a protected minority,
see, e.g., Bouie v. City of Columbia, 378 U.S. 347 (1964), or where an error of state
law works a singular national impact, see, e.g., Bush v. Gore, 121 S. Ct. 525 (2000).
But while we ought not inject ourselves into the state law question, we are charged with
enforcing federal law. Federal law, and in particular the Constitution, operate to
protect the rights of citizens against encroachment by both federal and state
governments. In my view, even accepting arguendo that the people of Minnesota did
actually intend to immunize their judicial candidates from some of the rigors of an
election campaign, Canon 5 still flatly contradicts controlling precedent and violates the
Constitution.
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The court repeatedly emphasizes the importance of judicial independence, a
proposition with which I heartily agree. Judicial independence is of the utmost
importance to a fair and well-functioning judicial system. Moreover, I agree that a state
has an interest not only in warding off an actual breakdown of that independence, but
also the appearance of such. Every court to address this or a similar question has
recognized the importance of this principle. Moreover, all have recognized, again
rightly so, that by virtue of their function, judges fundamentally differ from other
elected officials. The court cites extensively to these authorities. Yet the court omits
noting that almost all of these courts have then further recognized that such policy
notions cannot trump constitutionally-enshrined rights.31 The Constitution makes strict
demands. Often times, important and justifiable public policy goals must bow before
its restraints. As judges, we must put aside our inclinations as jurists, lawyers,
residents, citizens, and parents, and enforce the Constitution's restraints. The
Constitution protects the most basic elements of our democratic processes, in particular
the rights of candidates and citizens to express and receive views pertinent to public
office, and to associate in the election context with others of their own choosing.
31
See e.g., Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998) (striking down
restrictions on judicial campaign spending); Buckley v. Illinois Judicial Inquiry Bd.,
997 F.2d 224 (7th Cir. 1993) (striking down "announce" clause); Stretton v.
Disciplinary Bd. of the Supreme Court of Pa., 944 F.2d 137 (3d Cir. 1991) (narrowing
construction of "announce clause"); Weaver v. Bonner, 114 F. Supp. 2d 1337 (N.D.
Ga. 2000) (striking down canon restricting advertising and election speech); Butler v.
Alabama Judicial Inquiry Comm'n, 111 F. Supp. 2d 1224 (M.D. Ala. 2000) (restraining
enforcement of campaign advertisement and conduct restrictions); ACLU of Florida v.
The Florida Bar, 744 F. Supp. 1094 (N.D. Fla 1990) (enjoining "announce" canon); In
re Chmura, 608 N.W.2d 31 (Mich.) (narrowing canon to prohibit only knowingly false
statements), cert. denied, 121 S. Ct. 77 (2000); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953
(Ky. 1991) (striking down "announce" and other campaign restrictions).
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Because Canon 5 sharply curtails, if not outright bans these activities, regardless of
how laudable its purpose, it must be struck down.
Because election speech and association lie at the heart of the First Amendment,
any restriction thereof must survive strict scrutiny. Eu v. San Francisco County
Democratic Cent. Comm., 489 U.S. 214, 223 (1989). A restriction on otherwise
protected activity must be necessary and narrowly tailored to serve a compelling state
interest. Id. at 222. "[I]t is the rare case in which . . . a law survives strict scrutiny,"
Burson v. Freeman, 504 U.S. 191, 211 (1992), yet the court today, with little
reservation, affirms a set of restrictions more sweeping in scope and effect than ever
adopted elsewhere. I discuss in turn, the First Amendment rights implicated by the
court's decision, the court's purported interests and the need for and tailoring of the
challenged restrictions.
A.
The Supreme Court has consistently afforded election speech and association the
highest protection. "The free exchange of ideas provides special vitality to the process
traditionally at the heart of American constitutional democracy–the political campaign."
Brown v. Hartlage, 456 U.S. 45, 53 (1982). Few, if any, state interests prove
sufficiently compelling to trump these activities. While "a state has a legitimate interest
in upholding the integrity of their electoral process . . . , when a State seeks to uphold
that interest by restricting speech, the limitations on state authority imposed by the First
Amendment are manifestly implicated." Id. at 52. Canon 5 runs roughshod over the
clearly established speech and associational rights of candidates, political parties and
the voting public. That alone should foreclose any thought of Canon 5's
constitutionality.
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Candidates for public office enjoy both speech and associational rights.
The candidate, no less than any other person, has a First Amendment right
to engage in the discussion of public issues and vigorously and tirelessly
to advocate his own election and the election of other candidates. Indeed,
it is of particular importance that candidates have the unfettered
opportunity to make their views known so that the electorate may
intelligently evaluate the candidates' personal qualities and their positions
on vital public issues before choosing among them on election day.
Buckley v. Valeo, 424 U.S. 1, 52-53 (1976) (emphasis added). To that end, the First
Amendment protects the right to campaign and restricts states to preventing only actual
fraud and corruption.32 Brown, 456 U.S. at 55.
Candidates similarly enjoy protected association rights. These interpose
themselves "at the crucial juncture at which the appeal to common principles may be
translated into concerted action, and hence to political power in the community."
Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986). A candidate's
association with a political party, organization or another candidate provides a basic
means of election communication. Associational rights work hand in hand with a
candidate's speech rights, for without the former, the latter may prove meaningless.
"'The right to associate with the political party of one's choice is an integral part of this
32
The court cites Burson where the Supreme Court sustained the prohibition of
"the solicitation of votes and the display or distribution of campaign materials within
100 feet of the entrance to a polling place." 504 U.S. at 193. While not a traditional
"time, place, and manner" restriction in that it was content-specific, the rule curtailed
speech only within that 100-foot bubble. Id. at 197. Against a vast history of election
fraud and intimidation at polling places, the Court permitted only an extremely narrow,
location-specific restriction on campaign speech. Burson hardly supports the absolute
bans imposed by Canon 5.
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basic constitutional freedom.'" Id. at 214 (quoting Kusper v. Pontikes, 414 U.S. 51, 57
(1973)).
The First Amendment protects not only speakers' rights, but also those of
listeners. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748 (1976). A campaign implicates not only the candidate's right to self-
expression, but also voters' rights to receive the candidate's message. A state may not
"hamstring[] voters seeking to inform themselves about the candidates and the
campaign issues." Eu, 489 U.S. at 223. Nor may a state limit public debate as "[i]t is
simply not the function of government to 'select which issues are worth discussing or
debating.'" Brown, 456 U.S. at 60 (quoting Police Dep't of Chicago v. Mosley, 408
U.S. 92, 96 (1972)); accord United States v. Playboy Entm't Group, Inc., 120 S. Ct.
1878 (2000). In short, "[a] state's claim that it is enhancing the ability of its citizenry
to make wise decisions by restricting the flow of information to them must be viewed
with some skepticism." Eu, 489 U.S. at 228 (quotation omitted).
Voters' associational rights parallel their right to receive information. "To the
extent that party labels provide a shorthand designation of the views of party candidates
on matters of public concern, the identification of candidates with particular parties
plays a role in the process by which voters inform themselves for the exercise of the
franchise." Tashjian, 479 U.S. at 220.
A party's speech and association also receive protection, particularly in the
election context. Eu, 489 U.S. at 224; First Nat'l Bank of Boston v. Bellotti, 435 U.S.
765 (1978). In endorsing or inviting a candidate to speak, a party "reflects its members'
views about the philosophical and governmental matters that bind them together [and]
seeks to convince others to join those members in a practical democratic task," an
election. Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 615
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(1996) (plurality opinion of Justice Breyer). Limitations on a party's ability to endorse
a candidate "hamper[] the ability of a party to spread its message." Eu, 489 U.S. at
223. "[A] political party has a right to . . . select a standard bearer who best represents
the party's ideologies and preferences." Id. at 224 (citations and quotations omitted).
The suppression of a party's right to associate with candidates of its choice, renders it
powerless.33 "The Party's attempt to broaden the base of public participation in and
support for its activities is conduct undeniably central to the exercise of the right of
association." Tashjian, 479 U.S. at 214.
Canon 5 trenches upon these rights in a variety of ways. The "announce" clause,
for instance, effectively bans campaigning itself. The court disagrees, saying "[t]he
judicial candidate simply does not have a First Amendment right to promise to abuse
his office." Ante at 16. But the court proves too much. The Supreme Court
established in Brown that no candidate for any office possesses such a right. "[T]he
state may ban such illegal agreements without trenching on any right . . . protected by
the First Amendment." 456 U.S. at 55. Beyond prohibiting fraud and corruption, and
the appearance of the same, a state may prevent judicial candidates from prejudging or
pledging outcomes in specific cases or even in particular types of cases. But beyond
such, a state cannot further unreasonably curtail election-related speech.
33
The court relies in part on Timmons v. Twin Cities Area New Party, 520 U.S.
351 (1997), in which the Court sustained a ban on fusion candidates–those appearing
on the ballot as representing more than one party. That law governed form of the ballot
but did not restrict parties from endorsing the candidate of their choice. This prevented
small parties from bootstrapping their way into public election funds by endorsing a
major party candidate, and then claiming the resulting votes. As it did not affect
candidate or party speech and associational rights, the Court sustained the rule. That
case does not support the banning of all election-related discussion and association.
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The announce clause, however, bars discussion of all disputed legal and political
issues. The court's narrowing construction to "issues likely to come before the
candidate," ante at 49, is meaningless. See Buckley v. Illinois Judicial Inquiry Bd., 997
F.2d 224, 229 (7th Cir. 1993) (recognizing the true scope of such a "limitation").34
Even could such a category be properly cabined, it would still roam far beyond the
narrow category of speech left unprotected by the Court in Brown. The court assures
us, for instance, that a candidate may discuss his "judicial philosophy." Ante at 51. I
cannot fathom "disputed legal issues" more likely to come before a court than the
proper role of stare decisis, narrow or strict construction, original intent and substantive
due process. Yet are these not captured by the term "judicial philosophy?" The term
is as sweeping as the court's allegedly narrow construction.35
34
Construing similar language, similarly curtailed, Judge Posner noted:
There is almost no legal or political issue that is unlikely to come before
a judge of an American court, state or federal, of general jurisdiction. The
civil war in Yugoslavia? But we have cases in which Yugoslavs resist
deportation to that nation on the ground that they face persecution . . . ;
and some years ago the Illinois courts were embroiled in a custody fight
involving a child who didn't want to return to the then Soviet Union with
his Soviet parents.
Buckley, 997 F.2d at 229.
35
To truly grasp the impact of today's opinion, one must consider the plight of the
judicial candidate who in 2002 must decipher Minnesota ethical obligations. Between
them, Canon 5, the district court's opinion and the court's opinion today supply three
different versions of acceptable speech. Moreover, all three remain contingent on the
Minnesota Supreme Court's agreeing with the court's construction, for if it does not, the
judicial candidate may still face sanctions. The threat of chilled speech is too great to
countenance.
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Along with the announce clause, the restrictions on attending and speaking at
party gatherings, and the bans on seeking or using endorsements, and on self-
identifying as a party member similarly tread upon protected First Amendment rights.
Obviously, by banning such activities, Canon 5 directly impacts the rights of judicial
candidates. The court insists that this impact goes no further, that Canon 5 affects only
the rights of candidates, and not those of any third parties. Ante at 36-38. But this
cannot be, as laws that affect candidates necessarily affect voters. Bullock v. Carter,
405 U.S. 134, 143 (1972). The court strives mightily to justify the impact wrought on
candidates' rights, arguing for instance that judicial candidates have less interest in
certain types of policy debate than do other types of candidates. Ante at 16. Such
arguments do little to justify collateral effects on the rights of others.36
Canon 5 affects third parties in a variety of ways. For instance, the announce
clause curtails voters' rights to hear a candidate's views on those issues most pertinent
to future conduct in office. By preventing candidates from seeking endorsements,
Canon 5 potentially prevents voters and parties from gauging a candidate's attitude
towards a party, something central to many voters' decision-making processes. Despite
the court's protestations, it also de facto curtails a party's ability to endorse the
candidate of its choosing. Parties are unlikely to endorse their preferred candidate so
long as they fear handing an opponent a potential election issue–specifically, the
specter of an ethics violation–even if none exists. This in turn curtails voters' rights to
hear parties' views as to candidates. Additionally, by preventing candidates from
attending or speaking at party gatherings, Canon 5 trenches upon parties' rights to
36
Of course, the court belies its own contention with the argument, addressed
infra, that political parties work a unique effect upon the electoral scheme. Ante at 33-
34, 40-41. How the court reconciles its concern with party involvement with its
assurances that the rights of candidates alone are affected escapes me.
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express themselves in the manner of their own choosing, specifically by presenting the
candidate of their choice.
Our First Amendment rulings usually parse the hypothetical. We worry about
"potential" chilled speech, and the supposed ill effects that might flow from quashed
association. Presented only with the text of Canon 5, one might well hypothesize that
restricting candidates' abilities to express their views and to associate with political
parties would lead to two results: higher rates of incumbent retention; and
disproportionate campaign fund-raising. This hypothesis follows from a rudimentary
understanding of public campaigns and the judiciary.
Campaigns for public office, judicial, legislative or executive, necessarily favor
incumbents. Incumbents have better name recognition, better resources, are usually
better staffed, and barring some recent disaster, are afforded the presumptions of
experience and competence. Of the three branches of government, the judiciary seems
to least capture the public's attention. Judicial incumbents, therefore, may enjoy these
benefits to an even greater extent.
Unlike most of our First Amendment cases, however, this case need not stick to
the hypothetical. Canon 5 has been in effect in Minnesota for some time, in varying
forms. We therefore can look to recent elections to see whether these supposed harms
have come to pass. Minnesota is no exception to the rule that the public pays the least
attention to the judiciary. Indeed, one Minnesota Supreme Court Justice has observed
of judicial elections that "it's pretty darn hard to get people to care." Amendment of
Canon 5 of the Code of Judicial Conduct: Hearing Before the Minn. Supreme Court 44
(1997). Election statistics bear this out. In 1996 one-half million voters cast a ballot
in the Presidential race yet did not vote in the Supreme Court race. League of Women
Voters of Minnesota, Choosing Minnesota's Judges: An Examination of the Present
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System and Alternative Proposals 6 (1998). Moreover, 86% of responding voters said
they needed more information about judicial elections and 77% observed they got less
information about judicial than other elections. Id.
Fund-raising and other election data demonstrate disturbing distortions in a
supposedly democratic process.37 During the 2000 election cycle, of those judges up
for election, only five of sixty-seven trial court benches were contested and only one
of four appeals court judges faced a challenger. In 1998, only ten of eighty-nine trial
court benches were contested.38 Judicial fund-raising reflects the same bias. In the
2000 election, the four incumbent Supreme Court justices seeking re-election raised a
combined $505,070.63. Of their opponents, only two raised sufficient funds to warrant
disclosure. These two together raised only $23,582.67. Candidate Filings, Minnesota
Campaign Finance and Public Disclosure Board (2000). A stable judiciary is, on
balance, a laudable pursuit and perhaps Minnesotans have no cause to find fault with
any of their judges. But it is just as likely that, at least in part, these imbalances flow
37
Prior to every Supreme Court election, the Minnesota State Bar Association
holds a plebiscite between the candidates among its members. The results display in
dramatic fashion the extent to which an incumbent may count on support from groups
most vested in the judiciary. Since 1974, incumbents have out-polled their challengers
by the following margins: 1974: 91% to 9% and 85% to 15%; 1978: 77% to 23% and
95% to 5%; 1982: 95% to 5%; 1992: 61% to 39% and 85% to 15%; 1996: 75% to 25%
and 90% to 10%. Minnesota State Bar Ass'n, Judicial Elections Task Force Report &
Recommendations 32 Appendix D (1997). While this case has been pending, the 2000
election cycle has come and gone. I occasionally use the most recent data, which post-
dates the record on appeal.
38
These numbers reflect a consistent trend. Since 1980, the number of contested
trial benches of those facing election were as follows: 2 of 25; 0 of 25; 5 of 56; 9 of 54;
2 of 67; 4 of 93; 5 of 82; 6 of 42; 14 of 111. Minnesota State Bar Ass'n, Judicial
Elections Task Force Report & Recommendations 7 (1997).
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from a lack of information resulting from the suppression of election-related speech and
association and from other impediments inherent in Canon 5.
Not surprisingly then, in recent history prior to the 1998 election which spawned
this suit, only two incumbent judges had lost elections. See Mary Ellen Egan, Judging
for Himself, City Pages 4-5 (June 17, 1998). The record details appellant Wersal's
campaign difficulties, hamstrung by both fund-raising and speech limitations. Indeed,
an ethics complaint forced him out of the 1996 campaign for fear of losing his law
license and being unable to support his family. Another Supreme Court candidate,
Michael Demoss, faced a similar problem after making comments about his views on
abortion. With challengers unable to create traction by discussing actual issues, or to
raise funds, the results in judicial elections are hardly surprising.
Minnesota's judicial elections thus reveal the precise results one might suspect
Canon 5 would produce. Moreover, its chilling effects on electoral activity are
precisely those which spurred the First Amendment. It might be naive to argue that
incumbents must never be permitted to use their offices to bolster their own
positions–such conduct seems inimical to politics generally. But American tradition
has long recognized that the best defense against such conduct is the right of a people
to freely associate, assemble and speak. It may be, as a matter of policy, that an
appointed judiciary best protects our liberties. I certainly think so, and the court
obviously agrees. But Minnesota has made a different choice, and having chosen an
elective selection method it cannot then turn around and quash candidates'
constitutionally guaranteed rights. The upshot is this: when a state opts to hold an
election, it must commit itself to a complete election, replete with free speech and
association. Certainly, a state may regulate corruption as in Brown, the integrity of the
voting process as in Burson and the form of its ballot as in Timmons v. Twin Cities
Area New Party, 520 U.S. 351 (1997). But the state may not unduly curtail speech and
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association, for they are too central to First Amendment interests in the election
process.
B.
The court does not discuss the foregoing authorities. Rather, it tries to sidestep
this entire doctrinal inconvenience with a simple argument–that judges are different.
It surmises that given the nature of their office, judges, even when elected, warrant
different treatment under the First Amendment.39 The court identifies three interests,
all under the rubric of enhancing judicial independence, which it deems sufficiently
compelling to warrant the suppression of fundamental rights: safeguarding a judge's
ability to apply the law neutrally; maintaining the public confidence in judicial
impartiality; and insulating judges from political pressure. Ante at 19, 24. Many courts
have noted, and I agree, that judges differ from other officials. As a matter of
constitutional law, however, the judiciary has no more or less right than any other
coordinate branch to insulate itself from the rigors of public debate, particularly in the
election context. The court embarks on a path long since foreclosed, as the Supreme
Court has directly and pointedly refused to permit such specialized treatment, even
given the court's stated concerns.
39
The court dallies briefly with an analogy between judges and civil servants,
drawing heavily on United States Civil Service Commission v. National Association
of Letter Carriers, 413 U.S. 548 (1973). There, the Court found compelling the
interests of forging a civil service capable of enforcing laws without regard to party
allegiances, and in avoiding the appearance of bias among federal employees in order
to maintain the public confidence. Id. at 565. The analogy fails. Offices are made
elective rather than appointive in order to introduce a degree of public control. Given
the discretion that judges wield, that voters would desire such control is hardly
surprising. The state's interests in these two areas are quite divergent.
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The judiciary may not rely on the "maintenance of confidence in the judicial
system," essentially the interest advanced by the court today, as a justification for the
suppression of protected expression. Landmark Communications, Inc. v. Virginia, 435
U.S. 829, 833 (1978). In Landmark Communications, Virginia attempted to rely on
this interest to justify a statute making it a misdemeanor to report on confidential
judicial disciplinary proceedings.40 Id. Recognizing that "the law gives judges as
persons, or courts as institutions . . . no greater immunity from criticism than other
persons or institutions," the Court ruled "neither the Commonwealth's interest in
protecting the reputation of its judges, nor its interest in maintaining the institutional
integrity of its courts is sufficient to justify the subsequent punishment of speech at
issue here." Id. at 839, 841 (quotation omitted, emphasis supplied). "[I]njury to
official reputation is an insufficient reason for repressing speech that would otherwise
be free [and] the institutional reputation of the courts, is entitled to no greater weight
in the constitutional scales." Id. at 841-42 (quotation omitted, emphasis supplied).
Landmark Communications extended a well-established body of precedent
forbidding judicial efforts at self-isolation from public debate. Potential "disrespect for
the judiciary" and worries of the "disorderly and unfair administration of justice" cannot
compel the suppression of protected expression. Bridges v. California, 314 U.S. 252,
40
The court may seek to cabin Landmark Communications as merely preventing
the criminalization of speech whereas this case regards an administrative or
professional sanction. The statute in Landmark Communications made the challenged
conduct a misdemeanor and subjected the paper to a $500 fine. While criminal in form,
the actual harm in that case was much less severe than the threat judicial candidates
face in Minnesota. Failure to abide by ethical canons can subject a lawyer or a judge
to sanction, removal or disbarment. In terms of gravity, the restrictions at issue here
pose much the greater danger. See In Re Primus, 436 U.S. 412 (1978) (holding that
a state's interest in effective judicial administration must bend before an attorney's First
Amendment rights).
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270 (1941). In Bridges, the Court prevented a trial court from silencing newspaper
editorial criticism of its conduct during ongoing legal proceedings, because:
The assumption that respect for the judiciary can be won by shielding
judges from published criticism wrongly appraises the character of
American public opinion . . . . [A]n enforced silence, however limited,
solely in the name of preserving the dignity of the bench, would probably
engender resentment, suspicion, and contempt, much more than it would
enhance respect.
Id. at 270-71.
This argument grows all the stronger in the election context. In Wood v.
Georgia, 370 U.S. 375, 379-80 (1962), the Court reversed a contempt order issued
against a sheriff who told a grand jury that he opposed its having been empaneled. The
state argued such conduct constituted a "clear and present danger" to the administration
of justice. Id. at 387. However, both the sheriff and the judges involved were elected
officials charged with public responsibilities. Id. at 390, 395. The sheriff, therefore,
"had the right to enter the field of political controversy, particularly where his political
life was at stake. The role that elected officials play in our society makes it all the more
imperative that they be allowed freely to express themselves on matters of current
public importance." Id. at 394-95 (citation omitted); see also, Craig v. Harney, 331
U.S. 367, 370, 376-77 (1947) ("Judges are supposed to be men of fortitude, able to
thrive in a hardy climate. . . . Judges who stand for reelection run on their records.
That may be a rugged environment. Criticism is expected."); Pennekamp v. Florida,
328 U.S. 331, 336-40 (1946) (rejecting a "threat to the impartial and orderly
administration of justice" as justification for a contempt order stemming from a political
cartoon); accord Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (holding
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that without good cause, criminal trials must be open to the public); Nebraska Press
Ass'n v. Stuart, 427 U.S. 539 (1976) (affirming principle of judicial transparency).
The First Amendment therefore forecloses the use of criminal or contempt
sanctions to suppress criticism of the judiciary. The use of punishing civil and
professional sanctions to accomplish the same end is equally offensive. I see little
difference between truthful criticisms leveled at a judge by a newspaper editor or
elected official on one hand, and a judicial candidate on the other.41 I similarly see little
difference between the use of the contempt power, and the use of a Supreme Court's
ability to regulate bench and bar, to silence judicial criticism. Judges, elected or
otherwise, are thought to be citizens of honor, integrity and fortitude. By holding office
they subject themselves to public criticism.42 Monitor Patriot Co. v. Roy, 401 U.S.
265, 274 (1971). And as elected officers, this holds doubly so for Minnesota's
judiciary. A judicial candidate has a right to criticize the opinions, philosophies, rulings
and public statements of the incumbent, who has a concomitant right to respond in kind.
In sustaining Canon 5, the court permits precisely what these precedents say may not
41
The court argues that Minnesota "seeks not to shield judges from published
criticism, but to prevent them from deserving such criticism." Ante at 25 n.14 (citations
and quotations omitted). But the court's cure kills the patient. The worry, presumably,
is that candidates will do or say things that pledge or seem to pledge them to certain
outcomes in return for support, thus threatening judicial impartiality. The cure is to
ensure that candidates can do nothing at all, thus destroying the election Canon 5 set
out to save. Whether the court likes it or not, facing public criticism, whatever the
source, comes with being a public official. Moreover, it is most certainly part of being
a public candidate. This regulation flies in the face of both.
42
Couching these prohibitions as necessary professional regulations falls similarly
short, for the Supreme Court has repeatedly favored First Amendment expression over
professional ethical regulations. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447
(1978); In re Primus, 436 U.S. 412 (1978).
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be done, except that rather than only protecting judges from the speech of others, they
are apparently designed, according to the court, to protect incumbent judges and
judicial candidates from the effects of their own speech. Such paternalistic notions
have long been suspect, and are patently unconstitutional. Even granting the court's
contention that Canon 5 will prevent some undesirable conduct, the vast majority of the
speech and association suppressed will be legitimate, wholesome, democratic activity.
Contrary to the court's assumption, judges, in this context, are not different. In the eyes
of the First Amendment, they are the same.43
C.
I turn finally to the more mundane application of the Supreme Court's strict
scrutiny jurisprudence. Even accepting that a restriction may serve a compelling state
interest, in order to warrant the suppression of otherwise protected speech and
association, it must be necessary to achieve its purpose. Burson, 504 U.S. at 198.
Despite the court's best efforts, Canon 5 fails this test.
Because a regulation that does not achieve its stated end cannot be necessary,
the touchstone of necessity is effectiveness. Eu, 489 U.S. at 228-29; Tashjian, 479
U.S. 214. For instance, in Eu, the state argued that its ban on political party
endorsements of primary candidates served the compelling interest of protecting
43
To bolster its "judges are different" argument, the court relies in part on Cox
v. Louisiana, 379 U.S. 559 (1965), where the Court reviewed a statute prohibiting the
picketing of a courthouse with the intent to influence a judge, juror or court officer in
the course of his duties. Id. at 560. The Court reversed the conviction on the grounds
that an official had misrepresented to the defendant that his protesting was legal. Id.
at 569-70. Despite this holding, the court engaged in a lengthy dictum discussing the
statute itself. The statute, the Court observed, regulated only conduct, and did not
infringe upon speech or assembly at all. Id. at 563.
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primary voters from confusion and undue influence. Eu, 489 U.S. at 228. The Court
doubted whether the restriction could achieve its stated rationale because of all the
organizations with an interest in primary elections, the ban silenced only political
parties. Id. at 228 n.18. Many other equally or more vocal groups remained free to
endorse whomsoever they wished. Moreover, "the growing number of endorsements
by political organizations using the labels 'Democratic' or 'Republican' has likely misled
voters into believing that the official governing bodies were supporting the candidates."
Id. As the restriction did not effect its goal, it was not necessary.44
Canon 5 suffers from precisely this same flaw. It bars judicial candidates from
attending or speaking at "political organization gatherings" or from seeking, accepting
or using endorsements from a "political organization," and defines a "political
organization" as a "political party organization." Canon 5 purports to safeguard a
judge's ability to apply the law neutrally, to maintain the public confidence in judicial
impartiality and to insulate judges from public pressure. Given its restricted
application, however, Canon 5 simply cannot achieve these goals.
The court worries that by appearing at, speaking to or being endorsed by a
political party, a candidate will appear "in hoc" thereto. As a general proposition, this
44
Ordinarily lawmakers may address problems piecemeal rather than having to
propose all-encompassing solutions. Indeed, permitting "over-inclusiveness" and
"under-inclusiveness" underpins basic rationality review. See Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483 (1955). Such is not the case regarding
fundamental rights, however, where we enforce a much higher standard. Playboy, 120
S. Ct. at 1888. Here, failure to solve the entire asserted problem is fatal. See, e.g., 44
Liquormart, 517 U.S. 484 (Opinion of Stevens, J.); Discovery Network, 507 U.S. at
418. Strict scrutiny imposes a much heavier burden on Canon 5 than on the "time,
place and manner" restrictions reviewed in Cornerstone Bible Church v. City of
Hastings, 948 F.2d 464, 470-71 (8th Cir. 1991).
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is simply wrong. The Supreme Court recognized in Eu that one cannot conclude from
such conduct that a candidate will necessarily tow a party line. 489 U.S. at 225 n.15.
But even accepting the court's premise, Canon 5 falls far short of its goals because it
fails to include candidate appearances before, speeches to, or endorsements by other
politically active organizations. Candidates remain free to consort with organizations
such as the National Organization of Women, the NAACP, the Christian Coalition, the
National Association of Manufacturers, the AFL-CIO or the NRA. Many of these
organizations are implicitly, and some explicitly, aligned with one or another of the
major parties.45 Candidates remain free to seek and use the endorsements of the
insurance lobby, the Minnesota Trial Lawyers Association, or any other political or
quasi-political organization not organized as a "political party." If the court's
"appearance" concerns are valid, this ought to cause it grave anxiety.
The court argues that political parties are more likely to command a candidate's
acquiescence to party positions on the bench. Ante at 33-34, 40. Were this true, the
court's argument would still fail because one does not satisfy the necessity requirement
merely by solving for the greatest influence, but rather by addressing all significant
influences. The court's assertion, however, is untrue. Of all the politically-oriented
organizations around, the two major parties are both "big-tent"
organizations–ideologically consistent only in their aggregate distinctions one from
another. Within each party a variety of opinions on most issues may be found. A
candidate's appearance at a party function hardly indicates endorsement of its views.
(I am certain that Republicans everywhere will be either delighted or dismayed to know
that Ralph Nader's appearance at their national convention last fall signified his support
for their platform. See Eun-Kyung Kim, Nader Addresses Youth Convention, AP
45
Indeed, statistics from the 2000 election indicate that NAACP members voted
for democratic candidates at a higher rate than did members of the democratic party.
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Online, WL 24553132 (August 2, 2000).) A speech at a party function supports
nothing beyond the candidate's own words, and an endorsement suggests only that the
endorser finds a candidate more palatable than any other presently available.
On the other hand, quasi-political organizations, particularly those that focus on
a single or only a few issues, are much more likely to demand and command a
candidate's attention and support. The Federalist Society, for instance, is an
organization dedicated to strict construction. Were it to endorse a candidate, it stands
to reason that the candidate would be seen as a "strict constructionist." Abortion issue
groups are among those most likely to endorse only candidates who will be thought to
adhere strictly to the relevant "party line." Given their focus and intensity, such groups
are much more capable than political parties of bringing their members' wrath to bear
on elected officials including judges who stray from their point of view.
The record reflects the increasing role in and influence over judicial election
politics exerted by these groups. Among those groups active in recent Minnesota
judicial elections were state and local bar associations, the League of Women Voters,
an organization called "People for Responsible Government," Minnesota Women
Lawyers, Lavender Magazine and the Minnesota Family Council. Such groups can
easily bring pressure to bear in judicial elections.46 Two 1996 examples from judicial
elections in other states bear this out. In Nebraska, Supreme Court Judge David
Lanphier was defeated in a retention vote after authoring an opinion striking down
46
During the 2000 campaign, two Supreme Court justices received between eight
and fifteen percent of their total contributions from one plaintiff's law firm, which had
previously been accused of attempting to buy elections with tobacco settlement money.
Candidate Filings, Minnesota Board of Campaign Finance & Public Disclosure (2000).
Canon 5 does not solve electoral problems, but merely selectively sweeps them under
the rug.
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Nebraska's term limits law. His defeat, largely over the opinion, appears to have been
engineered by a single-issue organization named "Citizens for Responsible
Government." Similarly, Justice Penny White of the Tennessee Supreme Court was
hounded out of office after voting with the majority to remand a death penalty case.
The influence of such groups featured prominently in the testimony when the Minnesota
Supreme Court held a hearing on whether to expand Canon 5 to exclude all such
groups, rather than just political parties.
The court leaves single-issue political parties such as the Twin-Cities Area New
Party, which brought the suit in Timmons, entirely out in the cold. Many smaller
parties including the Right to Life Party, the Natural Law Party, and until this recent
election cycle, the Green Party, tend to focus on only a few key issues. These groups
are distinguished from advocacy groups only by having exercised their right to organize
as a political party. Under the court's opinion, having done so will cost them their
rights to engage in election-related speech and association.
If the Minnesota Supreme Court is truly worried about the appearance of or
actual judicial bias, it ought to be concerned with more than political parties. By
ignoring other political groups, Canon 5 leaves unregulated sources of funding,
endorsements and pressures, which, if the court's concerns about judicial partiality are
justified, do much more to undermine public perception than political parties. In fact,
barring political party involvement will most likely make the system less tenable. By
removing the only organizations that endorse candidates across a spectrum of issues,
voters are left with only the shrill voice of narrow advocacy coming from special
interest groups. Because the canons do not achieve their stated goals, they cannot be
considered necessary, and therefore cannot pass strict scrutiny.
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D.
Not only must a restriction on speech be necessary, it must also be narrowly
tailored to use the least restrictive means in achieving its stated goal. Burson, 504 U.S.
at 198. In doing so, a restriction must suppress as little protected activity as possible.
"If a less restrictive alternative would serve the Government's purpose, the [state] must
use that alternative." Playboy, 120 S. Ct. at 1886. Canon 5 runs rampant through acres
of protected speech, and in doing so eschews many less restrictive options.
If the court's goals do accurately reflect the actual interests of the people of
Minnesota, they could be most efficiently and effectively achieved by amending the
Minnesota Constitution to allow for the appointment, rather than the election of judges.
This would achieve the court's interests in one stroke, without requiring the suppression
of a single protected word. In undertaking its "narrowly tailored" analysis, the court
does not discuss this option. Of course, doing so would reopen for the court the sticky
problem of Minnesota's having repeatedly expressed a preference for elected judges.
Compliance with the First Amendment does not require so radical a change, for
other states have successfully adopted a variety of mechanisms to insulate their judges
from the pressures of elected office without impermissibly trenching on protected
constitutional rights. Various states, including Nebraska and Tennessee, have adopted
the Missouri Plan, discussed in Section I, whereby initially-appointed judges stand in
periodic retention elections. Other states have used a more piecemeal approach,
remedying specific problems. Some, for instance, alleviate the financial pressures
faced by judges for whom the bench provides a livelihood by lengthening terms of
office or by providing generous pensions in order to ease the transition back to private
practice. Of course, Minnesota's failure to adopt any such scheme does not license the
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Minnesota Supreme Court to impose on judges and their putative supporters ethical
canons abusive to their First Amendment rights.
III.
In sum, the court starts with a series of premises, many of which I accept. The
Supreme Court of Minnesota has every right to regulate the state's bench and bar. It
may protect its judiciary against both actual and the appearance of partiality. It may
adopt measures tempered to do so in the ordinary course of its judiciary's conduct.
However, that principle of judicial independence, as has been recognized by almost
every court to take up the question, must give way before rights which, unlike the
court's policy, have been constitutionally secured. Judges, whatever their differences
from other officials, have no more right than others to avoid the rigors of public debate
and public elections. No matter what the wisdom of placing the judiciary beyond the
rigors of such activities, and no matter what selection method we as federal judges may
prefer, the people of Minnesota have adopted an elective judiciary–a system which
under our Constitution, must come replete with speech and associational rights.
Because the court finds compelling an interest that is not shared by the people
of Minnesota, trumps well established speech and associational rights with values not
adopted by the citizens of the state, permits the erection of an unconstitutional self-
insulating barrier between the judiciary and the public, and permits regulations that are
neither necessary nor narrowly tailored, I must respectfully dissent.
A true copy.
Attest:
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CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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