politics

Rules that have kept Minnesota's judicial races largely above the political fray were struck down Thursday by the 8th Circuit U.S. Court of Appeals.

The rules, which bar judges or judicial candidates from personally soliciting or accepting campaign money or from endorsing other political candidates, violate free speech, the court said.

To Greg Wersal -- a frequent candidate for the Minnesota Supreme Court -- and others, the ruling simply puts judicial challengers on more equal footing with the judges they seek to unseat. But others say the ruling will transform judicial campaigns in Minnesota into contests as nasty, as partisan and as dominated by special-interest money as those for any other office. Don't believe it? Just look at nasty and big buck judicial races in Wisconsin, or Illinois, or Ohio, they say.

When judges seek campaign contributions, the public may lose confidence that the courts are impartial, said Adam Skaggs, counsel for the nonpartisan Brennan Center for Justice at the New York University School of Law. Special interests will back judges they believe will rule in their favor.

"When the public stops seeing courts as places where anybody, rich or poor, can go to get a fair shake, the legitimacy of the courts will be called into question," Skaggs said.

That doesn't concern James Gilbert, a former Minnesota Supreme Court justice who once defeated Wersal to retain his seat. He acknowledged that such a Pandora's box is possible, but Minnesota has always had an elected judiciary, he said. "Minnesota just doesn't have an appetite for those kinds of fights. Could it happen? Yeah. But, since 1857, the system has worked pretty well."

Wersal pushes forward

Thursday's ruling is the result of Wersal's appeal of a lower court ruling that reinforced state judicial rules forbidding judges from personally soliciting campaign funds from individuals.

In 2002, Wersal prevailed in a case upheld by the U.S. Supreme Court that led to the removal of most restrictions on campaigning by judicial candidates. On Thursday, he said he continues to fight for a fair shake in a system that heavily favors the incumbent.

"Those rules have shut down challengers to keep people from running," he said, noting that rules allowing soliciting only from groups of 20 or more favor judges who visit law firms for contributions but ban him from approaching a person on the street for $25.

"What this means is somebody can really run for office," he said of the decision, adding, "There are over 100 judicial offices that are up for election, and more than 90 are incumbents who are unchallenged. We have got to get money into this system."

But that is precisely what worries others.

"Most people believe that money buys influence. Rightly or wrongly, they believe that," said Lucinda Jesson, a professor at Hamline University School of Law. "Public trust in the judiciary is a bedrock of our society. I think that will undermine that public trust."

She added: "Overall, our judges have had a reputation for impartiality and independence. What will money do to that?"

Money will come

Courts across the country have not agreed on the issue. While this ruling mirrors one by the 6th Circuit, another recent decision by the 7th Circuit Court of Appeals appears to contradict it. Several experts said Thursday that they expect the U.S. Supreme Court will have to rule eventually.

For now, the 8th Circuit ruling becomes law here. The appeals court said there are protections against the influence of money. Judges who receive campaign funds from people appearing in their courtrooms can remove themselves from the case. In fact, Wersal has pledged to do just that.

But Skaggs of the Brennan Center said it's not that simple.

Beginning in 2002, he said, the federal courts have consistently struck down rules limiting political speech and activities by those seeking seats on the bench.

The result, according to a soon-to-be-released Brennan study, is an explosion of big money into judicial races in state after state. Negative ads, third-party ads, special-interest money -- all have become part of the landscape, Skaggs said.

Minnesota and North Dakota have bucked that trend -- in part, because of more restrictive rules, he said.

"I think there is a legitimate question of how long states like Minnesota can continue to defy what is happening elsewhere," he said.

Brent Routman, president of the Minnesota-based Coalition for Impartial Justice, issued a statement Thursday, saying that the ruling should prompt Minnesota to drop its system of electing judges.

'Above politics'

"The recent decision of the 8th Circuit in the Wersal case drives home the proposition that if a state adopts or maintains a system of contested elections for judges, similar to the system used for politicians, the process will be primarily partisan," he said.

"Voters want their courts to be above politics, their judges to be impartial, loyal to the rule of law and accountable to the public for their actions; not beholden to political parties and campaign contributors."

His group is pushing for a state constitutional amendment that would make all judicial seats appointed, subject only to what is called a "retention election." Essentially, voters would decide only whether judges had done a good enough job to keep their seats.

The coalition, Routman said, will start working for that at the Legislature next session.

"Its only a matter of time until tremendous amounts of money pour in," he said. "Once the floodgates open, it will be impossible to close them."

But Wersal said he doesn't buy it.

"Let us allow the system to work for a while and see what happens before we start yelling about a problem," he said. "I trust the public a lot more than I trust anybody else."

James Walsh • 612-673-7428