Eighth Circuit, on 2-1 Vote Strikes Down 3 Minnesota Judicial Canons

In Wersal v. Sexton, the Eighth Circuit struck down Minnesota’s ban on judicial candidates endorsing other candidates for office, its ban on personal solicitation of campaign contributions by judicial candidates, and its ban on such candidates solciting contributions for a political organization or candidate. (The solicitation ruling puts it at issue with other courts, including most recenlty the 7th Circuit’s Siefert opinion.)
Judge Bye’s dissent includes the following general comment at the end of the opinion:

    Although not essential to the legal conclusions I reach today, I wish to comment briefly on the development of our caselaw in this area.
    Underlying today’s decision, as well as our prior decisions, are somewhat competing philosophies with respect to judicial elections. These differences were most evident in White I. In White I’s majority opinion, written by Justice Scalia, the Court made clear that judicial elections should be played out under the same rules as any other election for public office. By contrast, Justice Ginsburg, in her dissenting opinion, presented a competing philosophy, which would “differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons.” White I, 536 U.S. at 805 (Ginsburg, J. dissenting). Although White I may not have provided the final word on the larger philosophical debate, it did provide us with the appropriate framework for deciding constitutional challenges arising in the context of judicial elections. Once the Court made the threshold choice to apply the strict scrutiny framework to speech restrictions governing judicial elections, the result in White I was clear: the suppression of views on disputed legal and political issues is, as the Court noted, only tenuously related to any interest in maintaining an impartial judiciary.
    White II was this court’s first opportunity to apply the strict scrutiny framework announced in White I to a relatively more difficult set of provisions in the Minnesota Code of Judicial Conduct. I joined this court’s opinion in White II because I concluded that Minnesota’s ban on partisan activities and solicitation from large groups, although perhaps important, were not essential to the state’s interests in maintaining judicial impartiality or its appearance.
    In parting ways with the court today, I note my increasing discomfort with the court’s analytical approach. As I see it, the court’s analysis, at the most basic level, amounts to an examination of whether a given speech restriction placed on judges is essential–in every case–to fully realize the protections of due process. Without prejudicing the outcome of future challenges, no speech restriction, whether it is imposed on judicial candidates or simply judges, is essential to due process in every case. The majority’s approach, in my view, significantly discounts the role states play in maintaining a judicial system that serves its people with a higher standard of fairness and impartiality. Although the Constitution guarantees a minimum standard of fundamental fairness, Minnesota has endeavored to hold itself to a higher standard. Implicit in the majority’s opinion is the notion that any effort to maintain judicial impartiality or its appearance beyond what the Constitution requires is nonessential and expendable. To be sure, White I counsels us to review restrictions on speech with exacting scrutiny. But where a state has crafted its restrictions carefully to maintain a fair and impartial judiciary, in both practice and appearance, as Minnesota has done here, the First Amendment must yield.

Share this: