Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, February 15, 2009

For Wersal’s Challenges to the Code of Judicial Conduct, Tomorrow is Another Day

I only recently received a copy of the Memorandum Opinion and Order issued by Judge Ann H. Montgomery, of the U.S. District Court for the District of Minnesota, in Wersal v. Sexton.

As readers of these pages will recall, in March of last year, Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, filed a civil rights suit challenging the provisions of the Minnesota Code of Judicial Conduct. Wersal’s 2008 suit follows on from his earlier role as a key plaintiff in the landmark case of Republican Party of Minnesota v. White. In the various decisions in that case, the federal courts struck down as violating the First Amendment several state restrictions on the speech and campaign practices of judicial candidates. (And awarded his lawyers the fees that they earned in the case.)

Wersal’s 2008 suit challenges ethical rules that prohibit candidates for judicial office from either endorsing candidates for other elective office or soliciting campaign contributions from individual donors. In affidavits submitted to the District Court, Wersal averred that he would like to seek election to the Minnesota Supreme Court, and announce his electoral support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy.

Judge Montgomery began her analysis of the restrictions upon Wersal’s proposed endorsements, by quoting the discussion of “compelling government interests” by the U.S. Court of Appeals for the Eighth Circuit in White II:

A clear indicator of the degree to which an interest is “compelling” is the tightness of the fit between the regulation and the purported 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.


The court … 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 [litigants]….” [I]n cases where a political party is a litigant, the court found that “recusal is the least restrictive means of accomplishing the state’s 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. Therefore, the court found the partisan-activities clause unconstitutional.

Applying these standards, Judge Montgomery upheld the endorsement restriction of the Code because “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

With all due modesty, to my mind, that conclusion seems particularly vulnerable to attack on appeal. If, as the Eighth Circuit reasoned in White II, recusal is a sufficient cure for the rare occasion in which a political party that endorsed a judge, later appears before the same judge as a litigant; surely, recusal is sufficient remedy for the even more remote possibilities that a Member of Congress (in the case of Wersal’s proposed endorsement of Michele Bachmann) or a fellow Supreme Court Justice (if Tim Tingelstad were successful) are to appear before the judge as litigants.

Now it may well be, as Judge Montgomery forcefully points out, that judicial candidate endorsements of candidates for County Attorney or Sheriff may present problems for which later (and very frequent) recusals are simply not sufficient. Yet, it bears mentioning that this is not Wersal’s claim – he wants to endorse folks who are not at all likely to be litigants. Moreover, sustaining a broad ban on endorsements on those grounds seems to flip the traditional First Amendment analysis: To avoid unconstitutional over-breadth, a speech-curtailing regulation must be “narrowly-tailored” to meet compelling needs; not merely be appropriate in some other circumstances.

Perhaps more ominous still, as I noted here, a divided Minnesota Supreme Court recently approved amendments to the Code of Judicial Conduct that authorize state court judges to solicit and receive campaign contributions from fellow judges; provided that the judge who makes the solicitation “does not exercise supervisory or appellate authority” over the would-be donor judges. Thus, after July 1, one could imagine the Board of Judicial Standards being obliged to argue that it is wholly proper for Supreme Court candidate Gregory Wersal to give a $200 check to Supreme Court candidate Tim Tingelstad’s campaign committee (and presumably, for Tingelstad’s committee to publicize this fact widely to others in fundraising mailings), but that Wersal should be subject to sanctions if he publicly urges Tingelstad’s victory on Election Day.

While I am not a betting man, I think that such a scenario is a Twister-like tangle that the U.S. Court of Appeals for Eighth Circuit is unlikely to indulge. And reflecting that tomorrow is another day, I shudder over the possibility of a new $1,619,129.06 attorney fee petition.

Courtesy of Minnesota Lawyer, Judge Montgomery’s complete analysis is accessible here.