Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, December 20, 2009

Heat and Light in Saint Paul this Winter

On Wednesday of this past week, a panel of the U.S. Court of Appeals for the Eighth Circuit heard oral argument in the case of Wersal v. Sexton.

As readers of these pages will recall, in February of this year, Judge Ann H. Montgomery of the U.S. District Court for the District of Minnesota, turned away a civil rights suit challenging the provisions of Minnesota Code of Judicial Conduct.

Golden Valley attorney and sometime candidate for election to the Minnesota Supreme Court, Gregory F. Wersal, earlier claimed that he would like to seek election to the Minnesota Supreme Court, and announce his support for the election of Tim Tingelstad (to judicial office) and Michele Bachmann (to the U.S. Congress), during his candidacy. Rule 4.1 (A)(3) of the Minnesota Code of Judicial Conduct forbids judges and those running for judicial office from making such endorsements. Judge Montgomery upheld this restriction of the Code on the grounds that “a legitimate impartiality concern is created when [Wersal] endorses a candidate who may come before him in a judicial capacity.”

The most provocative claim made by Wersal is his contention that the prohibitions on judges endorsing other candidates for elective office are not meant to disentangle judges from political bias, but rather, are designed to prevent these biases from being revealed. Wersal argues: The “restrictions on judicial speech could undermine public confidence in the judiciary, [because] there is a danger that silence on the part of judicial candidates could inspire the suspicion that they are hiding their views to mask their partiality or bias.” Implicit in this charge, is that the Code’s ban on candidate endorsements is meant as an incumbent-protection mechanism; with the government deciding to shield clumsy office-holders from later being rejected at the polls because of those candidates' actual views.

To my mind, this is a far more sophisticated, nuanced and potent argument than the threadbare claim that judges are simply indistinguishable from others who enter the public square. Indeed, I think that Wersal’s arguments have their greatest force (and the Board of Judicial Standards is at its weakest) when the inquiry centers on the benefits that accrue to incumbent office-holders under the regulations.

Courtesy of Minnesota Lawyer, Judge Montgomery’s February 2009 analysis is accessible here.

An audio file of the Eighth Circuit oral argument – and the very fine job done by the advocates, James Bopp, Jr. and Deputy Attorney General Steven M. Gunn – is accessible here.