Appeals court restores rules for Minnesota judicial races

  • Article by: DAN BROWNING , Star Tribune
  • Updated: March 27, 2012 - 9:58 PM

Former judicial candidate says he'll take the matter to the U.S. Supreme Court.

The Eighth U.S. Circuit Court of Appeals on Tuesday restored campaign rules that have kept Minnesota's judicial races orderly, if antiseptic, contests.

The rules bar judges or judicial candidates from personally soliciting or accepting money from groups of fewer than 20 people, or from endorsing other political candidates. The deeply divided 12-member court overturned a split decision by one of its three-judge panels, finding that the state's rules are permissible restrictions on the First Amendment rights of judicial candidates because they were "narrowly tailored" by the Minnesota Supreme Court to serve a compelling state interest: avoiding an actual or perceived judicial bias.

"I've had better days," said Minneapolis attorney Greg Wersal, who's been challenging the judicial campaign restrictions since 1996, when he ran for the state Supreme Court.

Wersal said judges in Minnesota use the campaign rules to preserve incumbency and make it nearly impossible for challengers to raise money or inform the electorate about their views.

"They're stealing elections," Wersal said of the incumbent judges. He last ran unsuccessfully for associate justice on the state Supreme Court in 2010.

Wersal called the opinion "a disgrace," and said he planned to seek its review by the U.S. Supreme Court, which ruled in his favor in an earlier challenge to the rules.

The appeals court judges actually wrote four separate, heavily footnoted opinions filling 89 pages.

Judge Kermit Bye of Fargo wrote the majority opinion, joined by judges Diana Murphy of Minneapolis, Michael Melloy of Cedar Rapids, Iowa, Lavenski Smith of Little Rock, Ark., and Bobby Shepherd of El Dorado, Ark. Judges James Loken of Minneapolis and Roger Wollman of Sioux Falls, S.D., concurred in the outcome, but for different reasons.

Judge C. Arlen Beam of Lincoln, Neb., wrote a blistering dissent, joined by Chief Judge William Jay Riley of Omaha. They found the challenged restrictions on judicial candidates unconstitutional. Riley and Beam also joined with judges Steven Colloton of Des Moines, Raymond Gruender of St. Louis and Duane Benton of Kansas City, Mo., in a partial dissent.

Minnesota has had an elected judiciary since 1857 and has rejected the so-called Missouri model of having the governor appoint judges recommended by a nonpartisan panel.

The ruling Tuesday has a long trajectory.

In 1998, Wersal challenged restrictions against judicial candidates announcing their views on disputed legal and political issues. In 2002, the U.S. Supreme Court found that the restrictions must be narrowly tailored to achieve a compelling interest. On remand from the high court, the Eighth Circuit found in 2005 that the restrictions violated the free speech rights of judicial candidates. The Minnesota Supreme Court then revised its restrictions to comply with the ruling.

Wersal announced his candidacy for chief of the Minnesota Supreme Court in 2007 and said he wanted to endorse two other judicial candidates and U.S. Rep. Michele Bachmann. He also wanted to solicit contributions door-to-door. But he did not do those things, he said, because the rules prohibited it. So he sued every member of the Minnesota Board of Judicial Standards and Minnesota Professional Responsibility Board.

U.S. District Judge Ann Montgomery rejected Wersal's arguments and dismissed the case on a motion for summary judgment by the defendants. Wersal appealed, and two of the three Eighth Circuit judges who heard the case ruled in his favor. The entire bench of the Eighth Circuit then agreed to reconsider the case.

Essentially, the majority found that the rules were crafted for compelling reasons -- maintaining an unbiased and independent judiciary and preserving the public's trust -- and that the rules were narrowly tailored to achieve those goals.

The dissent disputed that. Beam wrote that the rules heavily favor incumbents, and noted that challengers have been elected to the Minnesota Supreme Court only twice since 1947. He found the rules Wersal challenged "wholly unconstitutional."

Wersal took solace in Beam's dissent. "Judge Beam's dissent is what got me to the Supreme Court" the last time, he said.

The Eighth Circuit's ruling creates a rift in the appellate courts, Wersal said. The Seventh Circuit has ruled similarly, but the Sixth Circuit went the other way. He said the Supreme Court might want to revisit and clarify the issue.

"We're supposed to have competitive elections," he said.

Dan Browning • 612-673-4493

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