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Wersal v. Sexton et al.: US District Court : CIVIL PROCEEDURE - no irreperable harm as to election if not a candidate in it

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gregory Wersal,
Plaintiff,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 08-613 ADM/JSM
Patrick D. Sexton, in his official capacity as
Chair of the Minnesota Board on Judicial
Standards; William J. Egan, in his official
capacity as a Member of the Minnesota Board
on Judicial Standards; Douglas A. Fuller, in
his official capacity as a Member of the
Minnesota Board on Judicial Standards; Jon
M. Hopeman, in his official capacity as a
Member of the Minnesota Board on Judicial
Standards; Cynthia Jepsen, in her official
capacity as a Member of the Minnesota Board
on Judicial Standards; E. Ann McKinsey, in
her official capacity as a Member of the
Minnesota Board on Judicial Standards; Gary
Pagliaccetti, in his official capacity as a
Member of the Minnesota Board on Judicial
Standards; James Dehn, in his official
capacity as a Member of the Minnesota Board
on Judicial Standards; The Honorable Terri
Stoneburner, in her official capacity as a
Member of the Minnesota Board on Judicial
Standards; Randy R. Staver, in his official
capacity as a Member of the Minnesota Board
on Judicial Standards; Kent A. Gernarder, in
his official capacity as Chair of the Minnesota
Lawyers Professional Responsibility Board;
Vincent A. Thomas, in his official capacity as
Vice-Chair of the Minnesota Lawyers
Professional Responsibility Board; Kathleen
Clarke Anderson, in her official capacity as a
Member of the Minnesota Lawyers
Professional Responsibility Board; Mark R.
Anway, in his official capacity as a Member
of the Minnesota Lawyers Professional
Responsibility Board; Robert B. Bauer, in his
official capacity as a Member of the
Minnesota Lawyers Professional
2
Responsibility Board; William P. Donohue, in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Joseph V. Ferguson, III,
in his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Wood R. Foster, Jr., in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Susan C. Goldstein, in
her official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Sherri D. Hawley, in
her official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Lynn J. Hummel, in her
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Geri L. Krueger, in her
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Ann E. Maas, in her
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Marne Gibbs Hicke, in
her official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Mary L. Medved, in her
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Richard H. Kyle, Jr., in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; David A. Sasseville, in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Michael W. Unger, in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Debbie Toberman, in
her official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Dianne A. Ward, in her
official capacity as a Member of the
3
Minnesota Lawyers Professional
Responsibility Board; Daniel R. Wexler, in his
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Stuart T. Williams, in
his official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board; Jan M. Zender, in her
official capacity as a Member of the
Minnesota Lawyers Professional
Responsibility Board,
Defendants.
______________________________________________________________________________
James Bopp, Jr., Esq., Bopp, Coleson & Bostrom, Terre Haute, IN, and Stanley N. Zahorsky,
Esq., Zahorsky Law Firm, Edina, MN, argued on behalf of Plaintiff.
Steven M. Gunn, Esq., and Thomas C. Vasaly, Esq., Office of the Minnesota Attorney General,
St. Paul, MN, argued on behalf of Defendants.
______________________________________________________________________________
I. INTRODUCTION
On June 17, 2008, the undersigned United States District Judge heard oral argument on
Plaintiff Gregory Wersals (Wersal) Motion for Preliminary Injunction [Docket No. 9]. In his
Complaint [Docket No. 1], Wersal brings First Amendment challenges to canons of the
Minnesota Code of Judicial Conduct that prohibit a judge or a candidate for judicial office from
publicly endorsing other candidates for public office, soliciting funds for a political organization,
and personally soliciting campaign contributions. Wersal seeks a preliminary injunction
enjoining Defendants, who are members of the Minnesota Board of Judicial Standards and the
Minnesota Lawyers Professional Responsibility Board, from disciplining him if he engages in
the activities prohibited by the challenged canons. For the reasons stated below, Wersals
Motion is denied.
4
II. BACKGROUND
Wersal, a Minnesota resident, campaigned in 1996 and 1998 for election to the
Minnesota Supreme Court. Compl. 13-14. During the latter campaign, Wersal was a plaintiff
in litigation that successfully challenged former canons of the Minnesota Code of Judicial
Conduct prohibiting judges and judicial candidates from stating their views on disputed legal and
political issues, engaging in certain partisan activities, and personally soliciting campaign
contributions from large groups. See Republican Party of Minnesota v. White, 536 U.S. 765
(2002); Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005).
On March 4, 2008, Wersal filed his Complaint in this matter. Wersal argues that Canons
5(A)(1)(b), 5(A)(1)(d), and 5(B)(2) of the Minnesota Code of Judicial Conduct do not survive
strict scrutiny under the First Amendment. Canon 5(A)(1)(b) provides that a judge or a
candidate for election to judicial office shall not publicly endorse, or except for the judge or
candidates opponent, publicly oppose another candidate for public office. Canon 5(A)(1)(d)
states that a judge or judicial candidate shall not solicit funds for or pay an assessment to or
make a contribution to a political organization or candidate, or purchase tickets for political party
dinners or other functions. Canon 5(B)(2) prohibits judges or judicial candidates from
personally soliciting or accepting campaign contributions. However, Canon 5(B)(2) creates
exceptions such as allowing judicial candidates to make a general request for campaign
contributions when speaking to an audience of 20 or more people.
Wersal asserts in his Complaint that he is a candidate for Justice of the Minnesota
Supreme Court in the 2008 judicial election. Compl. 20. However, Wersal did not file
candidacy papers by the July 15, 2008, deadline. Pl.s Notice to the Court [Docket No. 23] 5.
5
Therefore, Wersal is not a candidate in Minnesotas 2008 judicial elections.
III. DISCUSSION
The Eighth Circuit held in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109,
114 (8th Cir. 1981) (en banc), that a district court deciding a motion for a preliminary injunction
must balance four factors: (1) the likelihood of the movants success on the merits; (2) the threat
of irreparable harm to the movant in the absence of relief; (3) the balance between the harm to
the movant and the harm that the relief would cause to the other litigants; and (4) the public
interest. A preliminary injunction is an extraordinary remedy and the burden of establishing
the propriety of an injunction is on the movant. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th
Cir. 2003) (internal citation omitted).
In the case at bar, it is unnecessary to consider all four Dataphase factors because the
second factor is dispositive. Wersal argued in his brief that he would suffer irreparable harm
without a preliminary injunction because the challenged canons would prevent him from
endorsing other candidates and personally soliciting campaign contributions in the 2008 judicial
election. Pl.s Mem. in Supp. of Mot. for Prelim. Inj. [Docket No. 10] at 12. However, the
challenged canons will not cause Wersal irreparable harm in the 2008 election because he is not
a candidate.
In an attempt to create a threat of irreparable harm, Wersal now declares he is currently
a candidate for the office of Justice of the Minnesota Supreme Court in 2010. Wersal Decl.
[Docket No. 24] 8. Wersal states that he would still like to endorse candidates for public
office during the 2008 election and in future elections, and would like to immediately begin
soliciting contributions for his 2010 campaign. Id. 9. However, the 2010 election is over
6
twenty-seven months away. Wersal can fully litigate his claims long before the 2010 judicial
elections. Should he prevail on the merits of his claims, Wersal will have adequate time to
endorse candidates and personally solicit contributions for the 2010 elections. The Court finds
the threat of irreparable harm to Wersals judicial candidacy in 2010 is too speculative and
remote to warrant a preliminary injunction. See Siefert v. Alexander, Civ. No. 08-126, 2008 WL
2273832, *1 (W.D. Wis. June 2, 2008) (denying preliminary injunctive relief in case challenging
canons of the Wisconsin Code of Judicial Conduct because the next election is still several
years away). Therefore, Wersals Motion is denied.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff Gregory Wersals Motion for Preliminary Injunction
[Docket No. 9] is DENIED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: July 22, 2008.
 

 
 
 

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