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Wersal v. Sexton et al.: VOTE | 1ST AMENDMENT - standing; ripeness; 3 canons in judicial conduct code pass White muster

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. Anne 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 October 24, 2008, the undersigned United States District Judge heard oral argument
on Plaintiff Gregory Wersals (Wersal) Motion for Summary Judgment [Docket No. 37] and
the above-captioned Defendants (Defendants) Motion for Summary Judgment [Docket No.
26]. Wersal raises First Amendment challenges to three provisions of the Minnesota Code of
Judicial Conduct. The Canons in dispute prohibit a judicial candidate (1) from publicly
endorsing or opposing candidates for public office in election contests other than the one in
which he is a candidate, (2) soliciting funds for a political organization, and (3) personally
soliciting campaign contributions. For the reasons stated below, Wersals motion is denied, and
Defendants motion is granted.
4
II. BACKGROUND
On March 4, 2008, Wersal filed this suit challenging Canon 5A(1)(b) and (d) and Canon
5B(2) of the Minnesota Code of Judicial Conduct. In relevant part, Canon 5A(1)(b) (the
endorsement clause) prohibits a judge or candidate for election to judicial office from
publicly endors[ing] or, except for the judge or candidates opponent, publicly oppos[ing]
another candidate for public office. Canon 5A(1)(d) (the soliciting for a candidate clause)
prohibits a judge or judicial candidate from solicit[ing] funds for or pay[ing] an assessment to
or mak[ing] a contribution to a political organization or candidate, or purchas[ing] tickets for
political party dinners or other functions. Finally, Canon 5B(2) (the solicitation clause)
prohibits a judge or judicial candidate from personally solicit[ing] campaign contributions . . .
and [the judge or candidate] shall not personally accept campaign contributions. Judges and
judicial candidates may, however, establish committees that solicit and accept campaign funds or
public statements of support. Id. These committees are prohibited from disclosing to the
judicial candidate the identity of campaign contributors or those that decline to contribute to the
campaign. Id. Judges and candidates may make general requests for campaign contributions
when speaking to groups of twenty or more people, and they may sign letters for distribution by
the candidates campaign committee, as long as the letter directs contributions to the committee
and not the candidate. Id.
Wersal requested that the Court issue a preliminary injunction on March 21, 2008. Mot.
for Prelim. Inj. [Docket No. 9]. At the time, Wersal alleged that he was a candidate for Justice of
the Minnesota Supreme Court in 2008. Pl.s Mem. in Supp. of Prelim. Inj. [Docket No. 10] at 2.
Because Wersal did not file for candidacy prior to the July 15, 2008 deadline, the motion for
5
injunctive relief was denied. July 22, 2008 Mem. Opinion and Order [Docket No. 25] at 5, 6.
Wersal attempted to salvage his claim for injunctive relief by declaring he is currently a
candidate for the office of Justice of the Minnesota Supreme Court in 2010. Wersal Decl.
[Docket No. 24] 8. The Court found the threat of irreparable harm to a candidacy in 2010 to be
too speculative and remote to warrant a preliminary injunction. July 22, 2008 Mem. Opinion
and Order at 6. Following this ruling, the parties filed cross motions for summary judgment.
III. DISCUSSION
A. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party
may not rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
B. Justiciability of Wersals Claims
Defendants argue that Wersals Complaint is not justiciable because an actual
controversy did not exist at the time the Complaint was filed and does not exist now. They also
6
question whether Wersal has standing to bring this claim, whether the conclusion of the 2008
judicial election renders his claim moot, and whether this claim is ripe for adjudication.
1. Standing
Standing is a threshold issue in determining whether a Federal Court may hear a case.
Republican Party of Minn., Third Congressional Dist. v. Klobuchar, 381 F.3d 785, 791 (8th Cir.
2004). Under Article III of the Constitution, a party bringing a claim bears the burden of
establishing that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At
a minimum, standing requires a case or controversy in which (1) the plaintiff has suffered a
concrete and particularized injury in fact that is actual and imminent, not conjectural or
hypothetical; (2) there must be a causal connection between the injury and the conduct
complained of; and (3) the injury must be capable of being redressed by a favorable decision.
Id. at 560 (internal quotations and citations omitted). When, as here, a plaintiff asserts a facial
overbreadth claim under the First Amendment, actual injury can exist for standing purposes
even if the plaintiff has not engaged in the prohibited expression as long as the plaintiff is
objectively reasonably chilled from exercising his First Amendment right to free expression in
order to avoid enforcement consequences. Klobuchar, 382 F.3d at 792. This injury maintains a
credible threat of prosecution . . . if the plaintiff actually engages in the prohibited expression.
Id.
Defendants argue that because Wersal never filed as a candidate for judicial office in
2008, he lacks standing to challenge the Canons of Judicial Conduct. They also argue that
Wersal lacks standing for future elections because, in spite of his intention to seek judicial office,
he is not yet a candidate for judicial office in 2010. Although Wersal has not pursued elected
7
office with the vigor expected of a sincere political candidate, his reasons for choosing not to
pursue his 2008 candidacy appear legitimate. Wersal explains he initially planned to run against
Chief Justice Russell Anderson in 2008. Wersal Decl. [Docket No. 24] 2. Because Chief
Justice Anderson resigned before the election and Eric Magnuson was appointed to the position,
Chief Justice was no longer a position on the 2008 ballot. Id. 3. Wersal claims he considered
challenging Justice Paul Anderson but did not do so because he felt constrained by the contested
canons and had been unable to secure a preliminary injunction prior to the candidate filing
deadline. Id. 4-7.
Defendants respond that Wersals Complaint is misleading because he is characterized as
a candidate for office but his candidacy was conditioned on the issuance of a preliminary
injunction. Defs. Mem. in Supp. of Summ. J. [Docket No. 36] at 8. Wersal did not allege the
prerequisite of the preliminary injunction being issued before he would be a candidate, but he
was not required to do so. Wersal had been the subject of complaints for violating election
prohibitions in 1996 and 1997. He had sought guidance from the Minnesota Office of Lawyers
Professional Responsibility and thus, could reasonably believe there was a credible threat of
prosecution if he were to engage in prohibited activities as part of his campaign. See
Klobuchar, 382 F.3d at 792; Compl. 13, 19, 29, 43. Wersals injury was sufficiently concrete,
a causal connection between the alleged First Amendment violation and the canons exists, and a
favorable decision would redress his injury.
Additionally, Wersal has standing as a candidate for judicial office in 2010. A party
becomes a candidate for judicial office as soon as he or she makes a public announcement of
candidacy, declares or files as a candidate with the election authority, or authorizes solicitation
8
or acceptance of campaign contributions or support. Code of Judicial Conduct, Canon 5F.
Wersal has not satisfied every potential qualifying event to become a candidate. He has not
declared or filed as a candidate with the election authority and has not registered a campaign
committee. See Minn. Stat. 10A.105; 10A.14. He has, however, declared in publically
accessible court documents that he is currently a candidate for judicial election in 2010.
Wersal Decl. 8. While Canon 5Fs public announcement requirement likely envisioned a
press conference or press release, the language of the canon itself does not specify how a public
announcement is made. See In re Frederickson, 545 F.3d 652, 656 (8th Cir. 2008) ([W]hen the
statutory text is plain and does not lead to an absurd result, the sole function of the courts is to
enforce the plain language of the statute). For these reasons, Wersal has standing to pursue his
claims.
2. Mootness
Defendants next argue that Wersals claim is moot because he is not a candidate for
election in 2008. Mootness is the doctrine of setting a time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness). Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000). As mentioned above, Wersal has sufficiently established his
2010 judicial candidacy. Therefore, Wersals Complaint is not moot.
3. Ripeness
The ripeness doctrine prevents courts, through premature adjudication, from entangling
themselves in abstract disagreements. Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568,
580 (1985). Defendants claim the issues are not ripe for review because Wersal has not shown
1 Additionally, the Complaint does not allege that Wersal seeks to solicit funds for any
political organization or candidate other than himself. See also Pl.s Mem. in Response to Defs.
Mot. for Summ. J. [Docket No. 46] at 7.
9
concrete plans to pursue his candidacy. Wersal was briefly a candidate in 2008, has declared his
candidacy for 2010, and has identified candidates such as Tim Tinglested and Congresswoman
Michelle Bachmann as individuals whom he would like to endorse for future elections. Wersal
Decl. [Docket No. 42] 6, 12. Wersal is a current candidate who wishes to endorse individual
candidates and therefore, his claims challenging the endorsement provision are ripe for
adjudication.
Wersal also challenges the soliciting for a candidate provision of Canon 5A(1)(d)
because, he maintains, its prohibitions extend to solicitations by a candidate for his own
campaign.1 Pl.s Mem. in Supp. of Summ. J. [Docket No. 38] at 17. He argues this position
based on the language in Canon 5D, which states, [f]or purposes of Canon 5, the term political
organization denotes an association of individuals under whose name a candidate files for
partisan office. Code of Judicial Conduct, Canon 5D. Therefore, if Wersal were to solicit for
his own campaign through his election committee, a political organization, he would allegedly
violate this clause.
The Court finds that Wersals interpretation of the soliciting for a candidate clause is
flawed. First, the soliciting for a candidate clause has never been applied to a judicial
candidates solicitations for his own campaign. Cole Decl. [Docket No. 35] 2. Second, Wersal
has not requested an advisory opinion of the Minnesota Office of Lawyer Professional
Responsibility whether the soliciting for a candidate clause would apply to solicitations for his
own campaign. Id. 3. Finally, Wersals interpretation of the solicitation for a candidate clause
10
is contrary to the tenet of statutory interpretation that all language should be given meaning. See
Rowley v. Yarnall, 22 F.3d 190, 192 (8th Cir. 1994). Under Wersals interpretation, the
solicitation clause of Canon 5B(2), which allows candidates to form committees that may solicit
and accept campaign contributions on behalf of that candidate as well as speak to large groups of
potential donors and send fund raising requests to supporters, would be rendered a nullity. The
prohibition against soliciting for a candidate in canon 5A(1)(d) can be read so as not to nullify
canon 5B(2) by applying the prohibition to solicitations for other candidates. For this reason,
Wersal does not face a credible threat of prosecution for violating the soliciting for a candidate
clause under Judicial Canon 5A(1)(d), and the likelihood that he would face sanctions for
soliciting for his own campaign in violation of this canon is abstract. His claims challenging
the solicitation for a candidate clause of Canon 5A(1)(d) are dismissed for lack of ripeness.
C. First Amendment Framework
Before turning to the merits of the current challenges, some history of Wersals First
Amendment challenges to the Minnesota Code of Judicial Conduct is helpful to understanding
the context. In 1996 and 1998, Wersal campaigned for the position of Justice of the Minnesota
Supreme Court. Compl. [Docket No. 1] 13-14. Those campaigns led to Wersal challenging
former Judicial Conduct Canons that prohibited 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) (White I); Republican Party of Minnesota v. White,
416 F.3d 738 (8th Cir. 2005) (White II). Because those cases control any analysis of the
endorsement and solicitation clauses, White I and White II warrant discussion.
11
1. White I
In White I, Plaintiffs challenged a former Minnesota Code of Judicial Conduct canon that
prohibited a candidate for judicial office, including an incumbent judge from announc[ing]
his or her views on disputed legal or political issues. Code of Judicial Conduct, Canon
5(A)(3)(d)(I) (2000). The challenged aspect of this canon, known as the announce clause,
applied to all lawyers who might be a candidate for a judicial office, and violations of the canon
were sanctioned by disbarment, suspension, or probation. White I, 536 U.S. at 768. The
announce clause allowed a candidate to discuss such topics as character, education, work habits,
and how he would handle administrative duties if elected but also served as a blanket prohibition
on any specific nonfanciful legal question within the province of the court for which he [was]
running. Id. at 773.
The Court found the announce clause prohibited speech based on content and burdened
core First Amendment speechspeech about the qualifications of candidates for public office.
Id. at 774. Thus, the Court applied strict scrutiny to determine if the announce clause was
narrowly tailored to serve a compelling state interest. Id. at 774-75. The Defendants proffered
two interests, which they argued were sufficiently compelling to withstand strict scrutiny:
preserving the impartiality of the state judiciary and preserving the appearance of the
impartiality of the state judiciary. Id. at 775. The Court, concerned that Defendants had not
defined what was meant by impartiality, supplied three potential understandings of the
meaning of the term. Id. at 775-79.
The first meaning posited by the Court was the lack of bias for or against either party to
the proceeding. Impartiality in this sense assures equal application of the law. That is, it
2 Presumably, the same rationale explains why the announce clause also did not serve the
compelling state interest of preserving the appearance of impartiality.
12
guarantees a party that the judge who hears his case will apply the law to him in the same way he
applies it to any other party. Id. at 775-76. This meaning of impartiality is based on the
proposition that an impartial judge is essential to due process. Id. at 776. The Court did not
decide whether this meaning of impartiality amounts to a compelling state interest, however,
because it found that the announce clause was barely tailored to serve that interest at all,
inasmuch as it does not restrict the speech for or against particular parties, but rather speech for
or against particular issues. Id.2
The Court next posited a meaning of impartiality defined as a lack of preconception in
favor of or against a particular legal view. Id. at 777. This meaning was summarily rejected as
constituting a compelling state interest. First, it would be virtually impossible to find a judge
who does not have preconceptions about the law. Id. Second, even if it were possible to select
judges who did not have preconceived views on legal issues, it would hardly be desirable to do
so. Id. at 778. Having no view on legal issues suggests lack of intellectual qualification rather
than lack of bias. Accordingly, the Court found that avoiding judicial preconceptions on legal
issues is neither possible nor desirable and therefore the appearance impartiality under that
definition can hardly be a compelling state interest either. Id.
The final possible meaning of impartiality the Court discussed might be described as
openmindedness. Id. The Court explained:
This quality in a judge demands, not that he have no preconceptions
on legal issues, but that he be willing to consider views that oppose
his preconceptions, and remains open to persuasion, when the issues
13
arise in a pending case. This sort of impartiality seeks to guarantee
each litigant, not an equal chance to win the legal points in the case,
but at least some chance of doing so.
Id. The Court declined to decide whether this meaning of impartiality constituted a compelling
state interest because even if it did, the announce clause was not adopted for the purpose of
serving that interest. Id. In essence, the announce clause was not narrowly tailored to meet this
purpose and the prohibition against statements made during a campaign abridged such a small
segment of the public comments a candidate could make that the announce clause was so
woefully underinclusive as to render belief in that purpose a challenge to the credulous. Id. at
780.
In deciding White I, the Court signaled a strong defense for speech on political issues:
the notion that the special context of electioneering justifies an abridgement of the right to
speak out on disputed issues sets our First Amendment jurisprudence on its head. Id. at 781
(second emphasis added). The Court has never allowed the government to prohibit candidates
from communicating relevant information to voters during an election. Id. at 782. It did
recognize, however, a distinction between judicial elections and legislative elections. The Court
counseled that White I was meant neither [to] assert nor imply that the First Amendment
requires campaigns for judicial office to sound the same as those for legislative office. Id. at
783. The Court then reversed both the District Court and the Eighth Circuit and remanded the
case to the Eighth Circuit.
Courts were provided with some guidance by the Supreme Courts pronouncements in
White I. First, it definitively struck down the announce clause. The intersection of judicial
elections and First Amendment rights was clarified. Impartiality as a lack of bias against parties
14
appeared to be a compelling state interest. Impartiality as openmindedness might be a
compelling state interest as well, but that definition was less supported by the Courts rhetoric.
And finally, the Court recognized that there may be situations in which the requirements of the
First Amendment in a judicial campaign differ from those in a campaign for a legislative or
executive office.
2. White II
In White II, the Eighth Circuit, sitting en banc, considered challenges to two clauses in
the Minnesota Code of Judicial Conduct. The first challenged clause, the partisan-activities
clause, prohibited judges and judicial candidates from (1) identify[ing] themselves as members
of a political organization, except as necessary to vote in an election; . . . (2) attend[ing]
political gatherings; or (3) seek[ing], accept[ing] or us[ing] endorsements from a political
organization. Code of Judicial Conduct, Canon 5(A)(1)(a) (2000). The second challenged
clause, the old solicitation clause, prohibited candidates from personally solicit[ing] or
accept[ing] campaign contributions or personally solicit[ing] publicly stated support. Id.,
Canon 5(B)(2). The old solicitation clause allowed a candidate to establish a committee to
engage in such activities, but the candidate could not seek, accept, or use political organization
endorsements. Id. The committee also could not disclose to the candidate the names of
contributors or who declined to contribute. See id.
The Eighth Circuit began its analysis with the premise that [p]rotection of political
speech is the very stuff of the First Amendment. White II, 416 F.3d at 748. It then explained
what it meant by a compelling interest:
A clear indicator of the degree to which an interest is compelling
is the tightness of the fit between the regulation and the purported
15
interest: where the regulation fails to address significant influences
that impact the purported interest, it usually flushes out the fact that
the interest does not rise to the level of being compelling. If an
interest is compelling enough to justify abridging core constitutional
rights, a state will enact regulations that substantially protect that
interest from similarly significant threats.
Id. at 750. The court then considered the three meanings of impartiality considered in White I.
The court found that when impartiality is understood as a lack of bias for or against a party it is
substantially evident that this meaning of impartiality describes a state interest that is
compelling. Id. at 753.
The court next considered whether the partisan-activities clause was narrowly tailored to
address this interest. It found that to the extent that the clause sought to keep judges from
aligning with particular views on issues by keeping them from aligning with a particular political
party, the clause is . . . barely tailored to affect any interest in impartiality toward parties. Id.
at 754. The court also clarified that bias has to stem from something more than mere association
with a political party because the associational activities restricted by [the partisan-activities
clause] are, as we have pointed out, part-and-parcel of a candidates speech for or against
particular issues embraced by the political party. And such restrictions, we have also said, do
not serve the due process rights of parties. Id. at 755. Finally, in cases where a political party
is a litigant, the court found that recusal is the least restrictive means of accomplishing the
states interest in impartiality articulated as a lack of bias for or against parties to the case. Id.
Similarly, recusal is the best way of serving the interest of protecting the appearance of bias in
such situations. Id. Therefore, the court found the partisan-activities clause unconstitutional.
The court also found the old solicitation clause to be unconstitutional. In White II, the
plaintiffs challenged only the fact that they [could not] solicit contributions from large groups
16
and [could not], through their campaign committees, transmit solicitation messages above their
personal signatures. Id. at 764. The court found that preventing candidates from directly
soliciting money from individuals who may come before them certainly addresses a compelling
state interest in impartiality as to parties to a particular case. Id. at 765. This interest was not
narrowly tailored, however, because the old solicitation clause required that contributions be
made to the candidates campaign committee. Id. Thus, even if a candidate signed his name on
a contribution letter or made a request to a large assembly of voters, he would not know who
contributed since such contributions went through his campaign committee. Id.
In sum, White I and White II provide several principles that serve as the framework for
consideration of the challenges in this case. First, there is a core First Amendment right for a
candidate to speak about his qualifications for political office. Second, any regulation that
abridges speech about political issues must have the tightest possible fit between the ends and
the means, but judicial elections need not be identical to other types of elections. Third,
impartiality, when defined as a lack of bias for or against a party, is a compelling interest, but
that interest must relate to actual bias against parties, not issues. Fourth, recusal is the best
method of addressing bias when a political party with which a judge associates comes before
him. And lastly, because Minnesota requires a candidate to establish a campaign committee, and
because the committee is forbidden from disclosing information about who did and did not
contribute to the candidates, a candidate may sign his name to a contribution letter and address
large assemblies of voters. With the parameters of the rights of judicial candidates set, the Court
can address the canons challenged in this case.
17
D. Wersals Challenges
1. The Endorsement Clause
The endorsement clause prohibits a judge or candidate for election to judicial office from
publicly endors[ing] or, except for the judge or candidates opponent, publicly oppos[ing]
another candidate for public office. Code of Judicial Conduct, Canon 5A(1)(b). Wersal seeks
to endorse candidates for offices other than the one he seeks. By doing so, he argues he would
be exercising his right to announc[e] his position on a disputed political issue, namely whether
that candidate should be elected. Pl.s Mem. in Supp. of Summ. J. at 12. He contends that his
endorsement of candidates serves as a shorthand for his views on political issues. Id.
Defendants argue that the endorsement clause is necessary to protect judicial impartiality
whether defined as either bias for or against a party to a proceeding or openmindedness, or both.
Defs. Mem. in Supp. of Summ. J. at 16, 25.
White I established that the endorsement clause is subject to strict scrutiny. 536 U.S. at
774. Under strict scrutiny, Defendants have the burden of demonstrating that the restriction is
(1) narrowly tailored (2) to serve a compelling state interest. Id. at 775. As a general rule, strict
scrutiny is an end-and-means test that asks whether the states purported interest is important
enough to justify the restrictions it has placed on the speech in question in pursuit of that
interest. White II, 417 F.3d at 750. If the regulation fails to address significant influences that
effect the purported interest, it usually flushes out the fact that the interest does not rise to the
level of being compelling. Id. The Eighth Circuit has found that Defendants have a
compelling interest in upholding both the impartiality of the judiciary and the appearance of
impartiality, defined as a lack of bias for or against a party. Id. at 753. The remaining question,
18
therefore is whether the endorsement clause is narrowly tailored to serve this interest.
The endorsement clause prohibits a single type of narrowly defined speech: the ability of
a judicial candidate to endorse or oppose a candidate for a different office. A whole realm of
speech remains available to that candidate. He can publicly state his position on any other issue.
He can attend a political rally. He can send out campaign literature. He can solicit and accept
endorsements from political and other organizations. He can associate himself with a political
party and publicly state his political affiliations. He can accept campaign funds (through his
political committee) and speak at (sufficiently large) fund raisers for his candidacy. In fact, the
only political issue about which he is not able to speak is one that is only tangentially related to
his own election; the political election of another candidate. The precise reason he is not
allowed to speak on this issue is that a legitimate impartiality concern is created when he
endorses a candidate who may come before him in his judicial capacity.
Wersal presents a number of arguments as to why the endorsement clause is not narrowly
tailored to address these impartiality concerns. The first is that the endorsement of a candidate
serves as a proxy for his position on issues. He argues the endorsement clause functions much
like the partisan-activities clause in White II and, therefore, the fit between the compelling
interest and the endorsement clause is too loose to withstand strict scrutiny. Wersals argument
is unconvincing. Unlike the partisan-activities clause that prohibited a large range of political
speech and specifically, speech about the qualifications of candidates for public office, the
endorsement clause does not circumscribe such a broad array of First Amendment rights but
rather one specific right because it conflicts with the states interest in impartial, unbiased
judges. White I, 536 U.S. at 774. Accordingly, the link between engaging in partisan-activities,
19
such as attending a political rally, and taking a position on an issue is not nearly as attenuated as
the link between supporting a candidate and taking a position on an issue. While undoubtably
instances may arise in which endorsement of a particular candidate might serve as a proxy for a
position on an issue, this connection lacks the force and immediacy society applies to the
political organizationpolitical issue link. Moreover, to the extent that what Wersal seeks is the
ability to comment on an issue, he can state his position without running afoul of the
endorsement clause. If, for example, he wishes to state that the cause of the current financial
crisis was hyper-regulation, he can publically take that position and does not need to endorse
Congresswoman Michelle Bachmann as a proxy for that position.
Furthermore, the state has a valid impartiality concern, and Wersal possesses many
alternate channels through which he may exercise his First Amendment right that do not trigger
this concern. The only political right impinged by the endorsement clause is the right to state
ones opinion about whether another candidate should be elected; and that right may be
circumscribed, as long as it is done narrowly, in furtherance of the states interest in prohibiting
judicial bias and the appearance of judicial bias.
Wersal also argues that the endorsement clause cannot be narrowly tailored because
White II held that recusal is the proper method to cure the impartiality concern. Wersal
overstates White IIs holding. The recusal option discussed in White II was applied in the
context of a judge being assigned to hear a redistricting case and the political party/litigant was
one with which the judge was associated. Id. at 755. In a redistricting case, recusal is a
workable, less restrictive means of dealing with potential bias. These cases are relatively rare
and if a judge recuses, a replacement judge can hear the case without restructuring the
3 For the same reasons, accepting endorsements from individual candidates may be
equally problematic. That question, and whether the Minnesota Judicial Code of Conduct would
allow that practice, however, is not before the Court.
20
assignment system. The same cannot be said about the workability of recusal when a judge
endorses an individual who is elected to a position where he or she is frequently a litigant.
Repetitive recusals may not be an option if the State seeks to have a viable judicial assignment
system. For example, if the judge endorses a sheriff or county attorney in the jurisdiction where
the judge presides, the judge should recuse every time one of those individuals, or their agents,
appears in the judges courtroom. In certain jurisdictions, particularly those with a small number
of judges, this creates an insurmountable burden for the court system. Although the problem
may be manageable in larger counties, a district in which there are only one or two judges would
be hamstrung. The endorsement of individual candidates differs markedly from accepting or
receiving endorsements from a political party, and, therefore, recusal as a less restrictive means
of narrowly tailoring to the impartiality concern is unworkable.3
Additionally, the endorsement of individual candidates raises a quid pro quo concern
each time an individual endorsee appears in court before the endorser judge. Unlike the situation
in which a litigant or attorney shares the judges affiliation with a political party, the impartiality
concerns are much stronger when the endorsee appears before the judge because of the link
between individuals. The aura of partiality looms greater in this type of situation.
Wersal cites several cases to support his position that courts have invalidated judicial
canons with similar or identical language to [the endorsement clause] challenged here. Pl.s
Mem. in Supp. of Summ. J. at 8. In Weaver v. Bonner, the court struck down a judicial canon
that prohibited a candidate from making statements he reasonably should know are false or
21
misleading or that create an unjustified expectation of what the candidate could achieve. 309
F.3d 1312, 1315 (11th Cir. 2002). The court found that the state could not sanction negligent
statements and any prohibition must be directed at statements made with knowledge of their
falsity and with actual malice. Id. at 1319. This canon is factually distinct from the endorsement
clause and is of little value in the analysis of the issue presented in the instant case.
Wersal also relies on a circuit court opinion, which struck down a judicial canon that
prohibited candidates from making pledges or promises of conduct in office . . . [and] mak[ing]
statements that commit or appear to commit the candidate with respect to cases that are likely to
come before the court. Fam. Trust Found. of Kentucky, Inc. v. Kentucky Judicial Conduct
Commn, 388 F.3d 224, 227 (6th Cir. 2004). Similar inclusion of a pledges and promises
clause or commits clause has also been found to be unconstitutional by numerous District
Courts. See Duwe v. Alexander, 490 F. Supp. 2d 968 (W.D. Wis.. 2007); Kansas Judicial Watch
v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006); Alaska Right to Life Pol. Action Comm. v.
Feldman, 380 F. Supp. 2d 1080 (D. Alaska 2005); North Dakota Fam. Alliance, Inc. v. Bader,
361 F. Supp. 2d 1021 (D.N.D. 2005). The rationale for striking these clauses follows the
analysis the Eighth Circuit applied in White II; these clauses prevent candidates from speaking
about political issues. See e.g. Bader, 361 F. Supp. 2d at 1039 (The appear to commit
prohibition clearly renders the canon indistinguishable from the announce clause which was
struck down as unconstitutional in White [I].). Unlike these clauses, the endorsement clause
targets only bias toward an individual and does not restrict the ability to address political issues,
a practice now allowed under the current canons. Because the endorsement clause does not
implicate political issues and is narrowly tailored to prevent bias against an individual party, this
22
line of cases is inapposite.
Additionally, no other court confronted with an endorsement clause containing similar
language to the Minnesota canon has found it to be unconstitutional. In Carey v. Wolnitzek, the
court determined that the plaintiffs challenge was not ripe for judicial review. No. 3:06-36-
KKC, 2006 WL 2916814, at *14 (E.D.Ky Oct. 10, 2006). The New Mexico Supreme Court
upheld a judicial canon that prohibited a judge or judicial candidate from publicly endors[ing]
or publicly oppos[ing] a candidate for public office through the news media or in campaign
literature finding that the clause was narrowly tailored to serve the States compelling interest
in a judiciary that is both impartial in fact and in appearance. In re Matter of William A.
Vincent, Jr., 172 P.3d 605, 606, 608-09 (N.M 2007). The New York Court of Appeals also
upheld a similar endorsement clause finding the prohibited activities were ancillary to the
plaintiffs political campaign, and while the court must consider the candidates First
Amendment rights, it must simultaneously ensure that the judicial system is fair and impartial
for all litigants, free of the taint of political bias or corruption, or even the appearance of such
bias or corruption. In re Matter of Ira J. Raab, 793 N.E.2d 1287, 1292 (N.Y. 2003). Finally a
district court in Kansas recently found that the endorsement clause at issue only restricts a judge
or judicial candidate from publicly endorsing other candidates for public office; it does not
restrict speech concerning disputed political issues. Yost v. Stout, No. 06-4122-JAR, slip op. at
12 (D. Kan. Nov. 16, 2008).
In sum, the Minnesota endorsement clause is narrowly tailored to serve a compelling
government interest, namely preventing bias and the appearance of bias for or against an
individual. Unlike the partisan-activities clause that was found unconstitutional by the Eighth
23
Circuit, the endorsement clause is aimed at preventing bias against parties and is not a
prohibition against speaking about various issues. Recusal as a less restrictive means of
achieving this interest is impracticable. Finally, no court has yet found an endorsement clause
unconstitutional. For these reasons, summary judgment in favor of Defendants is granted on
Wersals challenge to the endorsement clause.
2. The Solicitation Clause
Wersals final challenge is to the solicitation clause, which prohibits a judge or judicial
candidate from personally solicit[ing] campaign contributions . . . and personally accept[ing]
campaign contributions. Code of Judicial Conduct, Canon 5B(2). Judicial candidates are
allowed to establish committees to solicit and accept campaign funds or public statements of
support. Id. The identity of campaign contributors or those that decline to contribute to the
campaign may not be disclosed to the candidate. Id. Candidates may solicit campaign
contributions when speaking to groups of twenty or more people, and they may sign letters for
distribution by the candidates campaign committee if the letter directs contributions to the
committee and not the candidate. Id.
The constitutionality of this solicitation clause requires application of the strict scrutiny
standard. White II, 416 F.3d at 764. In White II, the court announced preventing judicial
candidates from directly soliciting money from individuals who may come before them
certainly addresses a compelling state interest in impartiality as to parties in a particular case.
Id. at 765. The issue before the Court pivots on whether the solicitation clause is narrowly
tailored to serve this compelling interest.
Wersal argues that it is not narrowly tailored because the states interest in preventing
24
bias comes not from solicitation of funds, but the receipt of them. For this proposition, he relies
on an Eleventh Circuit case in which the court found that even if there is a risk that judges will
be tempted to rule a particular way because of contributions . . ., this risk is not significantly
reduced by allowing the candidates agent to seek these contributions and endorsements on the
candidates behalf rather than the candidate seeking them himself. Weaver 309 F.3d at 1322-
23. Wersal does not address a key distinction between the solicitation clause invalidated in
Weaver and the one at issue in this case. In Weaver, the members of a candidates committee
were not prohibited from passing donor information on to the candidate. Because the donor
information was readily available to the candidate, the clause was not narrowly tailored to
prevent bias and the appearance of bias.
The Minnesota solicitation clause does include a prohibition designed to insulate the
judicial candidate from the contribution information. Specifically, committees shall not
disclose to the candidate the identity of those who were solicited for contributions and refused
such contributions. Code of Judicial Conduct, Canon 5B(2). Significantly, in rejecting the
large group solicitation and signature bans in White II, the Eighth Circuit found these
prohibitions were not narrowly tailored precisely because Canon 5 provides specifically that all
contributions are to be made to the candidates committee, and the committee shall not disclose
to the candidate those who either contributed or rebuffed a solicitation. 416 F.3d at 765. The
Eighth Circuit reasoned that since the non-disclosure requirement in the solicitation clause was
narrowly tailored to serve the states interest in preventing bias and the appearance of bias, the
large group solicitation and signature bans were unnecessary and concomitantly, not narrowly
tailored. White II does not suggest that the Eighth Circuit looks favorably on personal
25
solicitation by judicial candidates, and this Court is disinclined to do so as well.
Other courts that have invalidated personal solicitation clauses have done so only in the
jurisdictions where the campaign committee could disclose to the candidate whether a solicitee
had contributed to the campaign or not. See Yost, No. 06-4122-JAR, slip op. at 20; Carey, 2006
WL 2916814, at *18 (also finding that the solicitation clause did not serve a compelling state
interest in preventing bias against parties).
Wersal counter argues the committee does not effectively insulate the candidate because
laws requiring public disclosure of political contributions allow candidates to determine who
contributed to their campaign. This argument is unavailing for several reasons. First, the
contribution laws existed when the Eighth Circuit wrote approvingly of the ban on the committee
relaying this disclosure information to the candidate in White II and thus, this argument has been
considered. See Minn. Stat. 10A.20 (enacted 1974). Second, the appearance of bias is
heightened when an agent acting on behalf of a candidate solicits funds and then reports the
results directly to the candidate. If a candidate chooses to have access to a public disclosure
report when the reports are periodically filed, the concern of impropriety is diminished both by
the delayed access and the indirect route to the knowledge of contributions made. If the states
interest were only in preventing actual bias, then Wersals public disclosure law argument would
have more force. But given the states additional interest in preventing the appearance of bias,
and the quid pro quo intimations inherent when a candidate solicits contributions one-to-one, the
solicitation clause is narrowly tailored to serve that interest.
Wersal also argues that the solicitation clause is not narrowly tailored because it allows
candidates to solicit contributions in speeches to groups of 20 or more people, and there is no
26
indication that 20 is anything other than an arbitrary number. The decision to set the number at
20 was not determined by whim. Defendants considered the opinion in White II, in which the
Eighth Circuit found unconstitutional the banning of large group solicitations, and also followed
the Eighth Circuits analysis that a ban on personal solicitation was acceptable as long as
candidates solicited through their campaign committees and those committees followed the nondisclosure
requirement. The Defendants then decided on a number that prevented personal
solicitation but allowed solicitations to a larger group. The decision was that in groups of less
than twenty, the concern that candidates would appear to be compromised outweighed the
candidates right to solicit to large groups, a balance dictated by White II. The setting of the
group size at a minimum of twenty persons is not talismanic, but the inclusion of a number does
not, by itself, establish an arbitrary political speech restriction. See Burson v. Freeman, 504 U.S.
191, 209 (1992) (finding that when a state seeks to prevent political speech near polling places,
requiring proof that a 100-foot boundary is perfectly tailored to deal with voter intimidation and
election fraud would necessitate that the States political system sustain some level of damage
before the legislature could take corrective action. Legislatures, we think, should be permitted to
respond to potential deficiencies in the electoral process with foresight . . . provided that the
response is reasonable and does not significantly impinge on constitutionally protected rights).
Finally, Wersal renews his argument that recusal is a less restrictive means of preventing bias.
The explanation for rejecting recusal as a viable option under the endorsement clause also
applies for the solicitation clause. Additionally, the Eighth Circuit did not suggest recusal as a
proper means of tailoring under the old solicitation clause, and this Court will follow its lead.
Finally, the rash of recently filed petitions for Writ of Certiorari indicate that recusal may not be
27
an effective method of preventing bias and ensuring justice. See Petition for Writ of Certiorari,
Avery v. State Farm Mut. Auto. Ins. Co., 2005 WL 3662258, at *i (U.S. Dec. 27, 2005), cert.
denied, 547 U.S. 1003 (2006); Caperton v. A.T. Massey Coal Co., Inc., No. 33350, __ S.E.2d __,
2008 WL 918444 (W. Va. Apr. 3, 2008), cert. granted, 2008 WL 2714888 (U.S. Nov. 14, 2008).
For these reasons, summary judgment for the Defendant on the issue of the constitutionality of
the solicitation clause is granted
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff Gregory Wersals Motion for Summary Judgment [Docket
No. 37] is DENIED and Defendants Motion for Summary Judgment [Docket No. 26] is
GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: February 4, 2009.
 

 
 
 

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