Amicus Curiae Brief — Republican Party of Minn. v. White

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Supreme Sout, US.

9) FILER -

JAN 17 2001

Nos. 01-521

Supreme Court of the Hnited States

REPUBLICAN PARTY OF MINNESOTA, ef ai.,

Petitioners,

KELLY, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE

STATE SUPREME COURT JUSTICES

IN SUPPORT OF PETITIONERS

ERIK S. JAFFE

Counsel of Record

ERIK S. JAFFE, P.C.

5101 34” Street, N.W.

Washington, D.C. 20008

(202) 237-8165

Counsel for Amici Curiae

Cleanse acta neiha thine eT lina tits cma aciitc cate aE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

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TABLE OF CONTENTS

SUMMARY OF ARGUMENT

ARGUMENT

I. STRICT SCRUTINY IS APPROPRIATE. .............00ccccesseeeeeees 5

Il. RECURRING ELECTIONS AND THE COMMON LAW

FUNDAMENTALLY ALTER THE TRADITIONAL

FEDERAL CONCEPTION OF THE JUDICIAL

SPU nTIaTI ai csssscbisstitinicetnbsteentesiteesinesiaiiinaiiniatitdcemeiamiditemetebemnpietinen 6

A. Electoral Accountability Restricts the

Concept of Judicial Independence

B. Impartiality as to Persons, Groups, and

C. Judicial Integrity Can Co-Exist with a

Functioning System of Judicial Elections. ........ 10

III. PREVENTING CANDIDATES FROM ANNOUNCING

VIEWS RELEVANT TO AN ELECTION DOES NOT

ADVANCE ANY COMPELLING STATE INTERESTS. ........ 12

IV. RESTRICTING CANDIDATE SPEECH IN JUDICIAL

ELECTIONS SEVERELY BURDENS FIRST

AMENDMENT RIGHTS AND _ DISTORTS’ THE

I as asennintbioc 25

. ANNOUNCING JUDICIAL VIEWS SHOULD BE

PROTECTED SO LONG AS A CANDIDATE DOES NOT

MAKE A PROMISE OR COMMITMENT THAT WOULD

VIOLATE JUDICIAL OBLIGATIONS IF ACTED UPON. ..... 28

CONCLUSION

TABLE OF AUTHORITIES

Pages

Cases

Adamson v. California, 332 U.S. 46 (1947) .....ccccccccceeeseeeeees 27

Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d

EO CAT BOO D cocssescesssstsnsnienneciessemianadaaaaaaeenee 6, 15

Carey v. Brown, 447 U.S. 455 (1980) ..........cccscceeesseeseseeeeeees 20

Davidson v. City of New Orleans, 96 U.S. (6 Otto)

FT COBF 7 Procsecccensscvussensssonttnninesnietenistemmisaiaiananannnae 28

Dred Scott v. Sandford, 60 U.S. (19 How.) 292

(RP occoccosesseccanssconssenecsmnentiteapsmnmiimnsiaiaaaanaen 27

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ......ccccccccceceeeeeees 7

Greater New Orleans Broadcasting Ass'n v. United

Sistas, FET UD. UTS CORSO e acsssevissnceaiivtsnaaaiiiniaiaie 19

Gustafson v. Holm, 44 N.W.2d 443 (Minn. 1950)................ 21

In re Chmura, 608 N.W.2d 31 (Mich.), cert. denied,

SOE UE. Ge Gore i rcesccssesescotentotenstsennnieinmemiaiaamnal 6,7

Laird v. Tatum, 409 U.S. 824 (1972).......ccccccec0000 9, 16, 17, 18

Peterson v. Stafford, 490 N.W.2d 418 (Minn.1992). 13, 21, 22

Republican Party of Minnesota v. Kelly, 247 F.3d

SIS CAG BIE D ccererecsccessoceestniniocnnitihiiaiemiubideaiaaian passim

Republican Party of Minnesota v. Kelly, 63 F.

Supp.2d 967 (D. Minn. 1998), aff'd, 247 F.3d

SSS GAB FIGS) ovcesscecoscesomsvehsossenitedinnnintaeimeiniamaaaaalia 3

Stretton v. Disciplinary Bd., 944 F.2d 137 (CA3

SOUS ) coccnacseesnneveensenscensapessnceinabiansigiaiseiuaiadmannne 23

United States Nat'l Bank of Or. v. Independent Ins.

Agents of Am., Inc., 508 U.S. 439 (1993) ......ccccccccceeesseeees 10

Statutes

Canon 5, Minnesota Code of Judicial Conduct ...............-..+++ 2

Other Authorities

Judicial Review of Legislation, 77 Mich. Bar J. 32

(Jame. 1998) ...c.....cccccssssssssesescsesesseneneensnsesenesesenenenenenanensees 11

IN THE

Supreme Court of the United States

REPUBLICAN PARTY OF MINNESOTA, ef ai/.,

Petitioners,

KELLY, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

emma acer a er Sierra i OTE a AEDT OILS

INTEREST OF AMICI CURIAE'

The Honorable Clifford Taylor is an Associate Justice on

the Michigan Supreme Court. He was appointed to that court

in 1997, and that appointment was confirmed by election in

1998. He was reelected to an eight-year term in 2000. Asa

past and potential future candidate for elective judicial office,

and as a current state supreme court jurist, Justice Taylor

brings to this Court a valuable perspective on the interests of

both candidates and the judiciary.

' This brief is filed with the written consent of all parties. No counsel for

a party authored this brief in whole or in part, nor did any person or entity,

other than Amici or their counsel, make a monetary contribution to the

preparation or submission of this brief.

The Honorable Richard B. Sanders is a Justice on the

Washington Supreme Court. He took his seat on that court

after winning a special election in 1995 and was reelected to

a six-year term in 1998. Between his two elections Justice

Sanders encountered political criticism and faced legal chal-

lenges for a speech regarding a controversial issue. He ulti-

mately prevailed in defending his speech, both at the polls

and in the courts. He thus brings to this Court a unique per-

spective on the interaction between judicial speech and judi-

cial ethics in an elective system.

STATEMENT

Canon 5(A)(3)(d)(i) of the Minnesota Code of Judicial

Conduct states, in part, that a candidate for judicial office

shall not “make pledges or promises of conduct in office other

than the faithful and impartial performance of the duties of

the office; [or] announce his or her views on disputed legal or

political issues.” Only the latter “announce” clause is chal-

lenged before this Court. Canon 5(A)(3)(a) and (c) further

require the candidate to encourage family members to adhere

to the same standards of political conduct as the candidate and

forbid the candidate from authorizing or knowingly permit-

ting any other person “to do for the candidate what the candi-

date is prohibited from doing” for him or herself.

The conduct at issue on certiorari involves petitioner Wer-

sal’s announcement, during the course of a campaign for a

seat on the Minnesota Supreme Court, that he was in favor of

strict judicial construction and his criticism of certain Minne-

sota Supreme Court decisions. Pet. 4. His wife, his brother,

and associates and members of his campaign committee also

spoke in favor of his candidacy and announced his views in

favor of strict construction and against some Minnesota Su-

preme Court decisions. /d. 4-5.

Out of concern that those statements and certain other

conduct violated Canon 5, petitioners brought a challenge to

Canon 5’s announce clause and its separate provisions — no

longer at issue before this Court — concerning activities in-

volving political parties. Regarding the challenge to the an-

nounce clause, the district court construed the clause to apply

only to matters likely to come before the candidate if elected

as judge and held that Canon 5 advanced Minnesota’s com-

pelling interest in the independence and integrity of its judici-

ary. Republican Party of Minnesota v. Kelly, 63 F. Supp.2d

967, 985-86 (D. Minn. 1998).

The Eighth Circuit affirmed in a split decision, accepting

the district court’s na‘towing construction of the announce

clause and finding that, so construed, it was narrowly tailored

to serve the Minnesota Supreme Court’s compelling interest

“to guarantee the independence of the Minnesota judiciary”

from “‘political, economic and social pressure.”” Republican

Party of Minnesota v. Kelly, 247 F.3d 854, 864-65 (CA8

2001) (citation omitted).

Because thirty-four states select their judiciaries in whole

or in part through popular election, the issue in this case is of

national interest. The jurists appearing as amici on this brief

both come from states that elect members of their judiciary,

and thus have a particular interest in the reconciliation be-

tween the Canons and the First Amendment.

SUMMARY OF ARGUMENT

Two central facts about the judiciaries in Minnesota and

in thirty-three other states must necessarily dominate the First

Amendment analysis in this case. First, jurists in Minnesota

and other states are subject to recurring elections and thus are

dependent on the electorate for their continued tenure in of-

fice. Second, state courts, unlike their federal counterparts,

play a central role in making, not merely interpreting, the law.

While those facts may seem obvious, they have far-reaching

and frequently ignored implications regarding the nature of

state judiciaries.

The fact of recurring judicial elections introduces political

accountability into a branch of government that, at the federal

level, is thought of mostly in terms of isolation and independ-

ence from such matters. Such a dramatic departure from the

federal model necessarily rejects, at least in part, the notion of

a fully independent judiciary and suggests that a certain de-

gree of political responsiveness is not only permissible, but is

an intrinsic and expected element of the elective judicial role.

The fact that state courts play a greater role than federal

courts in the creation of substantive law explains, in part, why

many states have opted for a more responsive, rather than iso-

lated, judiciary. The authority, responsibility, and discretion

inherent in developing the common law are perhaps the most

significant law-making functions of state courts, and add a

distinctly legislative character to state judiciaries. While state

courts also have the simultaneous task of faithfully interpret-

ing and applying authoritative law — constitutions, statutes,

and regulations — made by others, their common-law-making

function necessarily imposes upon them a degree of discretion

in making policy choices that are political in a very basic

sense of the word. It should hardly be surprising, therefore,

that with such a mixed role for state courts, many states have

rejected the federal model of a politically insulated judiciary

and instead have opened their judiciaries up to periodic public

input and influence through recurring elections.

The central facts of recurring elections and state judicial

law making both increase the propriety and importance of ju-

dicial speech regarding issues on which courts exercise dis-

cretion and decrease the significance of judicial independence

from public influence regarding such issues. While it remains

true even in elected judiciaries that judges must be independ-

ent and impartial as to the facts and the litigants i' ‘ndividual

cases, and ought not, therefore, make promises of how they

will decide particular cases, that aspect of independence is not

implicated by a ban on candidates announcing their views on

legal issues. And although a jurist ought not commit to decid-

ing even a legal issue a certain way — because it suggests im-

proper refusal to consider contrary arguments — expressing

views on legal issues is a far cry from such a commitment.

While judicial candidates should not be allowed to prom-

ise to violate their oaths — either by disobeying binding law or

by refusing to consider the arguments of the parties — they

should be protected by the First Amendment when expressing

their views regarding issues on which jurists might differ in

the exercise of their lawful discretion and judgment. For if

reasonable jurists might differ over matters ultimately within

their discretion, then the voters might likewise differ over

who they want exercising discretion over such issues. The

electorate thus has a vital constitutional interest in knowing

the views of judicial candidates on issues over which they

will have discretion, and the candidates have a vital constitu-

tional interest in seeing that their views are conveyed to the

public accurately and as the candidates think best.

ARGUMENT

I. STRICT SCRUTINY IS APPROPRIATE.

The Eighth Circuit recognized that Canon 5’s announce

clause is a content-based restriction on political speech at the

heart of an election campaign, and is thus subject to strict

scrutiny. 247 F.3d at 864. Amici agree that full and rigorous

strict scrutiny is appropriate in this case. There is no question

that forbidding a candidate for judicial office from announc-

ing his or her views on disputed issues (especially those likely

to come before the court, and hence uniquely relevant to any

election) is a severe burden on the First Amendment rights

both of the candidate and the public.

Amici do take issue, however, with the Eighth Circuit's

seeming attempt to dilute the rigor with which strict scrutiny

was applied, and in particular with the court of appeals’ sug-

gestion that a strong government interest in judicial impartial-

ity and integrity somehow lowers the standard of scrutiny it-

self. 247 F.3d at 862. Although the court of appeals may

well be correct that certain differences between the judiciary

and the legislative and executive branches “bear on the

strength of the state’s interest” in restricting certain types of

judicial speech, Buckley v. Ilino:s Judicial Inquiry Bd., 997

F 2d 224, 228 (CA7 1993); In re Chmura, 608 N.W.2d 31, 40

(Mich.), cert. denied, 531 U.S. 828 (2000), that difference in

state interest is fully taken into account in the balancing proc-

ess of s.rict scrutiny itself, and is no excuse for peremptorily

diluting the standard of review.

Il. RECURRING ELECTIONS AND THE COMMON LAW

FUNDAMENTALLY ALTER THE TRADITIONAL FEDERAL

CONCEPTION OF THE JUDICIAL FUNCTION.

| When evaluating-both the burden on First Amendment

rights and the state interests in this case, it is important to bear

in mind the inevitable implications of recurring popular elec-

tion as a means of selecting or retaining members of a state

judiciary. The recurring election of jurists is such a funda-

mental departure from the federal model that it is often a mis-

take to adopt federal norms as the standard for jurists in an

elective system. Instead, elections create their own baseline

norms about the proper role of elected jurists, the nature and

scope of judicial independence, and the requirements of judi-

cial integrity. While in some instances such norms may be

similar to those in the federal system, in many instances they

are quite different. The federal model of isolation and reti-

cence makes far less sense in the context of a judiciary that is

intentionally subject to the public check of elections and thus,

by definition, must be responsive to public views regarding

the proper direction of the law and the judicial process.

The unique role of state courts in creating the common

law likewise has a profound impact on the First Amendment

analysis in this case. Unlike the federal courts, which primar-

ily focus on interpreting rules created by the Constitution,

Statutes, and regulations, state courts have the added power

and responsibility to create substantive rules governing be-

havior across a wide spectrum of daily life. Cf Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938) (“There is no federal com-

mon law. * * * And no clause in the Constitution purports to

confer such a power upon the federal courts.”). Common-law

rules on topics such as negligence, product liability, contracts,

business organization, and damages necessarily reflect an ex-

ercise of discretion regarding values and policy choices that

can only be described as political. The inevitable and proper

role of such values and policy choices in the common law and

in other aspects of state judicial decision making explains, in

part, why many states have rejected a model of extreme judi-

cial independence and instead chosen recurring elections as a

means of ensuring significant public influence over the make-

up of their courts and the inclinations of their jurists. For

where decisions reflect, not ‘merely the application of external

rules to individualized disputes, but also the discretionary

formulation of new rules of widespread precedential force,

the public has a valid interest in knowing the values and in-

clinations of those jurists who will be making the law, and in

selecting their judicial lawmakers according to the values and

inclinations they bring to their jobs.

A. Electoral Accountability Restricts the Concept of

Judicial Independence.

Whatever the merit of the federal ideal of a wholly inde-

pendent judiciary, elected state courts, by design, are not in-

dependent of the electorate. The very point of elections is to

make jurists accountable for their decisions by subjecting

them to repeated tests at the ballot box. As the Michigan Su-

preme Court has observed, one “rationale for judicial elec-

tions is that meaningful debate should periodically take place

concerning the overall direction of the courts and the role of

individual judges in contributing to that direction.” Jn re

Chmura, 608 N.W.2d at 42. A necessary corollary to that ra-

tionale is that the public has a legitimate interest in hearing

the views of candidates on such issues and may take account

of those views when they vote. Accountability in state judi-

cial systems is thus a significant departure from the federal

model of initial political appointment followed by near im-

penetrable independence from further political influence.

By choosing to elect their judiciaries, the majority of

states have eschewed the independence ideal and instead

made jurists directly dependent upon the public for their fu-

ture tenure. Although such dependence does not mean that

elected jurists are expected to respond to public opinion in all

matters,” it necessarily does mean that they are expected to at

least take into account public sentiment on matters that in-

volve policy- or value-based discretion, construction, or

common-law creation.

While such accountability may seem jarring to lawyers

and judges accustomed to the federal system, the significant

law-making authority of state courts is a difference from the

federal system that elevates the importance of accountability

to the public and substantially alters the notion of judicial

“independence” in state courts. This Court thus should resist

relying on familiar norms of judicial independence from the

federal courts and give thorough consideration to the struc-

: It remains true, of course, that jurists must apply legal rules — whether

legislative or court-made — impartially in each case and independent of

public sentiment regarding the parties or the facts. And the very existence

of elections seems to create pressure that threatens or appears to threaten

impartiality and independence regarding those aspects of judging. It is

precisely that concern that led the Framers of the federal Constitution to

reject popular election of the judiciary. See The Federalist No. 78, at 471

(Hamilton) (Rossiter ed. 1961) (periodic election of judges creates “too

great a disposition to consult popularity” when rendering decisions).

Minnesota has made a different choice. States opting for an elected judi-

ciary have, by definition, subordinated such intrinsic concerns raised by

elections to the competing interest in accountability as to other aspects of

the judicial function. The choice suggests considerable confidence both in

jurists and in the public to distinguish between the elements of judging

legitimately subject to public influence and accountability and the ele-

ments that must remain independent of external influence.

——

tural and conceptual limits on judicial independence that flow

from the existence of recurring elections and enhanced law-

making authority.

B. Impartiality as to Persons, Groups, and Facts.

There is no doubt that an essential characteristic of the ju-

dicial function, in both elective and appointive systems, is the

impartial application of the law to individual cases. But im-

partiality in that context means deciding cases on the evi-

dence presented without improper bias for or against the par-

ticular litigants. Personal favor or animus towards particular

person or groups, or prejudgment of the facts of the case apart

from the evidence presented, are the types of bias that are in-

compatible with judicial impartiality.

Notwithstanding the need for jurists to approach cases

with an open and unbiased mind, judicial impartiality does

not require a lack of knowledge or opinions about disputed

legal questions or jurisprudential models that might arise in

future cases. Judges are not expected to come to every case

with a totally empty mind, and there is no expectation that

judges must be impartial to ideas and legal issues. In fact, the

near universal expectation of jurists is precisely the opposite —

judges are expected to be knowledgeable and experienced in

the law, which generally equates with having formed at least

some opinions about the law and about various disputed legal

issues. See Laird v. Tatum, 409 U.S. 824, 835 (1972)

(Rehnquist, J., Memorandum regarding motion to disqualify)

(“It would be not merely unusual, but extraordinary, if [most

Justices] had not at least given opinions as to constitutional

issues in their previous legal careers. Proof that a Justice’s

mind at the time he joined the Court was a complete tabula

rasa in the area of constitutional adjudication would be evi-

dence of lack of qualification, not lack of bias.”).

Judges also are expected to interpret the law correctly re-

gardless of whether the particular parties succeed in identify-

ing such a correct interpretation. See United States Nat'l Bank

of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439,

446 (1993) (“‘When an issue or claim is properly before the

court, the court is not limited to the particular legal theories

advanced by the parties, but rather retains the independent

power to identify and apply the proper construction of gov-

erning law.””) (citation omitted). It would be difficult to cor-

rectly explicate the law without reliance on a pre-existing

background of k. »wledge and opinion regarding various legal

issues and the judicial process in general.

In the creation of common law, in particular, it is both

necessary and proper for jurists to have a pre-existing sub-

stantive and jurisprudential framework. While the creation of

common-law rules certainly takes place in the context of in-

dividualized cases, it undeniably is done with an eye toward

the larger class of cases that will be controlled by the rules

being announced. Taking into account basic values, policy

concerns, and opinions when formulating such rules does not

reflect partiality or improper bias towards the litigants.

Rather, it reflects judgment, experience, and a recognition

that judges are more than mere arbitrators of private disputes

— they are often the makers of public law. Impartiality comes

not from the absence of opinions on legal issues, but rather

from the even-handed application of the rules jurists develop

based on their opinions as sharpened and challenged, though

not defined, by the adversary process in individual cases and

across a body of cases.

C. Judicial Integrity Can Co-Exist with a Functioning

System of Judicial Elections.

As the preceding discussion illustrates, jurists can have

both integrity and opinions. And they can express their opin-

ions on legal issues to the electorate without compromising

that integrity. Indeed, where disputed legal issues involve

discretion, policy choice, and values, it is entirely proper for

jurists to take into account public debate on such issues and, if

they are so inclined, to participate in that debate.

The longstanding debate over the role of judges and over

jurisprudential models such as strict construction or an evolv-

ing-law approach serves as a particularly apt example. The

process by which courts interpret potentially ambiguous law

or handle cases in the interstices of statutory provisions is one

about which reasonable jurists and the public may disagree.

And the different approaches taken by jurists can have pro-

found impacts on the outcome of particular cases. But it

surely does not reflect any lack of integrity for a jurist, prior

to hearing argument in a case, to have an opinion regarding

the jurisprudential model he will use. And it poses no threat

to judicial integrity for a judge to announce — as did petitioner

Wersal in this case — that he favors strict construction over

more fluid jurisprudential models. Indeed, judges’ discussion

of their views on jurisprudence occurs regularly in scholarly

and professional publications, typically invoking praise for its

educational and professional value. See, e.g., Judicial Review

of Legislation, 77 Mich. Bar J. 32 (Jan. 1998) (debate be-

tween Michigan State Supreme Court Justice Clifford Taylor

and Federal District Court (E.D. Mich.) Judge Avern Cohn

over the role of judges). The general public — bearing ulti-

mate responsibility for judicial selection — can benefit as

much or more than members of the legal profession from the

discussion of such views during judicial campaigns.

Insofar as the public is concerned with such differences in

jurisprudence, the discussion of the issue and the announce-

- ment of a candidate’s views thereon only serve to facilitate

the democratic process and to give the public genuine choice

based on matters of substance and consequence. The notion

that it threatens judicial integrity to provide the public the in-

formation it needs to make its choice gets it entirely back-

wards. Integrity in an elective environment is only enhanced

by honest discussion of a candidate’s views on matters impor-

tant to the election.’

Judicial integrity ultimately means remaining true and

faithful to your role and to the unique elements — including

elections and the authority to create common law — that define

your role. Where a state has chosen to make jurists account-

able through recurring elections, responding to and facilitat-

ing such accountability is part and parcel of elective judicial

office and can be accomplished with no loss of judicial integ-

rity, properly understood.

III. PREVENTING CANDIDATES FROM ANNOUNCING VIEWS

RELEVANT TO AN ELECTION DOES NOT ADVANCE ANY

COMPELLING STATE INTERESTS.

In considering whether the announce clause serves a com-

pelling state interest, the Eighth Circuit began by simply in-

corporating its earlier determination that a compelling interest

in judicial independence supported the restrictions on partisan

campaign activities, which are no longer at issue in this Court.

247 F.3d at 876. The court of appeals held in that earlier dis-

cussion that “guarantee[ing] the independence of the Minne-

sota judiciary * * * is crucial to preserve[ing] the justice of its

courts of law and its citizens’ faith in those courts,” and that

there “is simply no question but that a judge’s ability to apply

the law neutrally is a compelling governmental interest of the

highest order.” 247 F.3d at 864. The claimed strength of the

State’s interest in judicial independence was bolstered by reli-

ance on the Minnesota case of Peterson v. Stafford, 490

> Indeed, recognizing that judicial elections are intended to create a de-

gree of accountability means that jurists not only may wish to explain their

views on disputed issues such as jurisprudence, but they also may choose

to remain open to adjusting their jurisprudential approach based on public

input during the campaign and through the ballot box. Remaining open to

such public influence on matters involving discretion — rather than being

rigidly “independent” — reflects the integrity and purposes of the election

process itself.

N.W.2d 418 (Minn.1992), for the proposition, offered in a

quite different context, that the goal of the Minnesota Consti-

tution, like the Federal Constitution, is to

“create and maintain an independent judiciary as free

from political, economic and social pressure as possible

so judges can decide cases without those influences” []

247 F.3d at 865 (quoting Peterson, 490 N.W.2d at 420) (foot-

note omitted).

The asserted threat to that generalized state interest is that

a jurist who has made announcements regarding issues that

later arise in a case “risks appearing as though he or she pre-

judged the case rather than gave it due consideration in light

of the law, arguments, and facts” if his vote is consistent with

his announced views and “risks being assailed as a dissem-

bler” if it is not. 247 F.3d at 878. The “apparent rigidity” in

the first instance is claimed potentially to “undermine the

faith of the litigants and public in the judge’s decision and in

the State’s judicial system generally,” and the fear in the sec-

ond instance is that “the judge may hesitate to decide the case

in a way that might lose votes at the next election.” /d.

The Eighth Circuit's analysis of the state interest in this

case, and the manner in which the announce clause suppos-

edly advances that interest, is problematic in several respects.

The particularized interests behind the announce clause

are not compelling. The determination that the interest in

judicial independence is compelling was made at too high a

level of generality to be meaningful. Any interest can be de-

scribed at a sufficiently high level to make it seem compel-

ling. For example, maintaining a sound economy and avoid-

ing a depression is certainly compelling in the abstract, but

not every economic measure satisfies the compelling-interest

standard.’ This Court should look to the more specific inter-

* This Court should distinguish between valid, substantial, and compelling

interests. If the various levels of scrutiny have any meaning at all, then

ests in preventing direct communication of a candidate’s

views to determine whether those interests are compelling.

The more specific interests advanced in support of the an-

nounce clause are twofold. The first is the supposed impact

on public faith in the judicial system if a judge acts consis-

tently with his announced views and thus appears “rigid{]” in

his views and unwilling :o consider the particulars of a spe-

cific case. The second is the alternative possibility that con-

cern for electoral consequences might cause a judge to decide

Cases consistent with prior announced views even when the

judge has since reconsidered those views.

A central problem with these two asserted interests is that

they are primarily a function of conduct within the scope of

the “pledges or promises” clause of Canon 5, see supra at 2,

and are implicated only indirectly and tangentially by the dis-

tinct category of speech prohibited by the announce clause.

The concerns over apparent rigidity or an unwillingness to

apply new views different from those previously announced is

more evident in connection with statements regarding the out-

come of future cases. Indeed, the Eighth Circuit seemed to

recognize that connection when it argued that during an elec-

tion campaign “the candidate simply cannot predict what the

facts or arguments in a particular case may be, the precise

way in which legal issues will present themselves, or other

crucial factors that need be considered before a court issues a

final decision.” 247 F.3d at 877 (emphasis added). But the

court also acknowledged that “the pledges and promises pro-

vision of Canon 5(A)(3)(d)(i) addresses the type of campaign

conduct that most blatantly subverts the judicial office —

pledges by candidates to make specific decisions on the

bench.” /d.

With actual commitments as to future cases, as well as

litigant- or fact-based bias, being addressed by provisions not

hose diff levels of j fer rational-besie. i liete.

and stnct scrutiny must be given identifiable boundaries.

challen here, the remaining concern seems to be that the

ns of views on disputed issues will function as

“implied commitments” to decide cases in accordance with

such views. Buckley, 997 F.2d at 227; see also Kelly. 247

F.3d at 877 (the announce clause “prevents candidates from

implying how they would decide cases that might come be-

fore them as a judge”) (emphasis added). But it is far from

clear that the statements covered by the announce clause,

rather than by the narrower pledges clause, actually do imply

a commitment to a specific outcome in future cases. Instead,

the announce clause bars speech on the broader category of

issues, and while such speech may imply a mapa et

approach to such issues in general, it is quite a

further implication that the jurist will ignore individualized

factors relevant to how the jurist’s announced approach would

apply in specific future cases. Absent the implication of pre-

commitment to specific outcomes in cases, the announcement

of views on legal issues raises only very attenuated concerns

that do not rise to the level of compelling interests.

The examples given by the court of appeals actuaily tend

to disprove the stated concern over the broad category of an-

nouncements as opposed to more specific commitments re-

garding future cases. For example, the court cited “declara-

tions by candidates that legislation relating to hot-button so-

cial issues is or is not constitutional” and “opinions about how

unsettled legal issues should be resolved” as raising the threat

of prejudgment. 247 F.3d at 877. The first example seems

more an instance of a commitment, or at least a prediction, of

the outcome of a future case regarding a specific piece of leg-

islation. As such it falls more into the realm of the pledges

and promises clause regarding future decisions than into the

realm of views regarding issues.

The second example is more nebulous in that it depends

on the particular issue and the nature of the resolution sug-

gested. If the disputed “issue” involves the application of the

law to prospective facts or circumstances, then once again

announcing the resolution of such an issue trenches upon the

area of commitments regarding future decisions and would

fall under the separate clause of Canon 5. If, on the other

hand, the issue is the hotly disputed question of what juris-

prudential framework to use when judging, the suggestion

that announcements will appear to prejudge future cases

seems fanciful. Similarly, where the disputed issues involve

matters such as the nature or existence of substantive due

process, the role of punitive damages, or the weight to be ac-

corded the interests of victims in discretionary multi-factor

balancing tests, announcing views on those issues creates no

implied prejudgment of a future case; it meiely recognizes

that judging is conducted within a framework of values and

views that pre-exist and may impact future cases, but that do

not prejudge the specifics of those cases. Cf. Tatum, 409 U.S.

at 834 (“Justices of this Court, each seeking to resolve close

and difficult questions of constitutional interpretation, do not

reach identical results. The differences must be at least in

some part due to differing jurisprudential or philosophical

propensities.”); id. at 838-39 (“neither the oath, the disqualifi-

cation statute, nor the practice of the former Justices of this

Court guarantee a litigant that each judge will start off from

dead center in his willingness or ability to reconcile the op-

posing arguments of counsel with his understanding of the

Constitution and the law.”).

Because the concerns raised by the mere implications of

announcements regarding issues, as opposed to pledges

regarding cases, are only attenuated manifestations of the

State’s more generalized interests, the particularized interests

that exist in this case are not compelling. Just as a marginal

economic program cannot claim the protection of a compel-

ling state interest in averting economic collapse, neither can

the marginal effort to reduce the attenuated effects of other-

wise wholly proper statements. While states may well have

legitimate interests in both limited economic stimuli and at-

tenuated perceptions and political pressures impacting the ju-

diciary, it requires far more for a legitimate interest to be

transformed into a compelling interest.

Inconsistent pursuit of state interests diminishes their

weight. The court of appeals further erred in its analysis by

misapprehending both the facts and the relevance of Minne-

sota’s inconsistent and contradictory pursuit of judicial inde-

pendence.

As to the facts, the Eighth Circuit's holding that Minne-

sota continues to pursue “the ideal of an independent judici-

ary,” 247 F.3d at 865, is belied by the mere existence of judi-

cial elections. As discussed above, the very point of such

elections — and their inevitable consequence regardless of in-

tent — is to make jurists accountable to the public. Account-

ability and independence are the antitheses of each other and

Minnesota is plainly pursuing a balance between the two

“ideals” of full independence and full accountability.

Were Minnesota in fact pursuing the “ideal of an inde-

pendent judiciary,” there are numerous actions it could have,

but has not, taken that would more effectively achieve its goal

without restricting speech. For example, the terms of elected

judges could be lengthened, thus minimizing the impact of

any single case and reducing the frequency of campaigns. Or

judicial pensions could be made to vest faster and be more

* The court of appeals’ citation, 247 F.3d at 877-78, to then-Justice

Rehnquist’s memorandum regarding disqualification in Laird v. Tatum,

409 U.S. 824 (1972), actually confirms that the interests in this case, while

valid, are not compelling. The vast majority of that memorandum flatly

rejected the notion that a prior expression of views on a legal issue im-

paired a jurist in subsequently ruling on such an issue. And while the

opinion in a footnote did draw a distinction between statements made be-

fore and after nomination to the bench, that distinction was “[i]n terms of

propriety, rather than disqualification.” /d. at 836 n. 5. While reasonable

jurists may differ about the “propriety” of particular statements on tssucs,

the fact that the memorandum seems to treat even post-nomination state-

ments as insufficient to force disqualification suggests that concern over

such statements does not rise to the level of a compelling interest.

generous, thus reducing any financial concerns related to the

possible loss of an election from an unpopular but correct de-

cision. Or judges could be elected only once and serve either

for life or for a fixed term of years with no reelection. Or, of

course, elections could be eliminated entirely and judges

could be appointed with life tenure and protected salaries ac-

cording to the federal model. Any one of those options would

have a greater impact on increasing judicial independence

than does the announce clause, yet Minnesota has adopted

none of them. That is the State’s prerogative, and there are no

doubt competing considerations for each of those suggestions,

but it nonetheless repudiates the notion that Minnesota is in

fact pursuing an independence “ideal” for its judicial system.

Minnesota’s pursuit of its asserted interests is inconsistent

and incomplete in other ways as well. With regard to the par-

ticularized interests of avoiding the appearance of rigidity

from fcllowing, or the fear of electoral consequences from

abandoning, previously announced views, Minnesota — by

necessity — leaves unregulated the single biggest threat to

both of those interests: Judicial opinions. Published opinions

involving disputed legal issues are likely to be much more

definitive and detailed regarding a jurist’s future inclinations

than campaign announcements would be. See Tatum, 409

US. at 835 (“Indeed, the clearest case of all is that of a Jus-

tice who comes to this Court from a lower court, and has,

while sitting as a judge of the lower court, had occasion to

pass on an issue which later comes before this Court. No

more compelling example could be found of a situation in

which a Justice had previously committed himself. Yet it is

not and could not rationally be suggested that, so long as the

cases be different, a Justice of this Court should disqualify

himself for that reason.”) Deviation from such opinions in

future cases is far more likely to generate public backlash on

grounds of inconsistency and dissembling. The authorship of

extensive concurrences, dissents, and dicta to express views

on numerous disputed legal issues compounds the effect of

such unregulated “announcements” from the bench.

Even the Eighth Circuit itself inadvertently imputes in-

consistency to Minnesota’s pursuit of its interests, suggesting

that the Minnesota Supreme Court would exempt numerous

disputed issues from the facially broad language of the an-

nounce clause. For example, the court of appeals believed

that the announce clause would not be found to cover “gen-

eral discussions of case law or a candidate’s judicial philoso-

phy” or the expression of views on “issues relating to the ad-

ministration of justice in criminal, juvenile, and domestic vio-

lence cases, and the candidate’s perception of a judge’s role

in the judicial system.” 247 F.3d at 882. All of those poten-

tially disputed issues are likely to come before a court, and

hence fall within even the narrowed construction of the an-

nounce clause ratified by the Eighth Circuit. And they im-

plicate the State’s proffered interests no less than the conduct

that led to this case. Indeed, petitioner Wersal’s announce-

ments during his campaign involved two of the very issues

that the court of appeals imagines might be exempt — a state-

ment of judicial philosophy and criticism of past cases — yet

the court still rejected his challenge. While the hypothesized

exceptions thus offer little certainty or security to a judicial

candidate, their mere suggestion calls into doubt the coher-

ence of the State’s pursuit of the alleged interests in this case.

The relevance of such inconsistency in the pursuit of an

interest is that it will reduce the constitutional weight ac-

corded the asserted interest. See Greater New Orleans

Broadcasting Ass'n v. United States, 527 U.S. 173, 186-87

(1999) (questioning assumption that a government interest in

court is essentially meaningless in this case, both because almost any issue

is likely to come before a court in one fashion or another and because is-

sues likely to come before the court are the only ones relevant to 4 judicial

election campaign and hence most acutely implicate the First Amendment.

reducing gambling is “substantial” where government has de-

termined that “the social costs that support the suppression of

gambling are offset, and sometimes outweighed, by counter-

vailing policy considerations” and some gambling is sanc-

tioned despite “awareness of the potential social costs”; pol-

icy was “decidedly equivocal,” and Court “cannot ignore

Congress’ unwillingness to adopt a single national policy that

consistently endorses either interest asserted by the Solicitor

General”); Carey v. Brown, 447 U.S. 455, 465 (1980) (classi-

fication scheme “suggests that Illinois itself has determined

that residential privacy is not a transcendent objective: While

broadly permitting all peaceful labor picketing notwithstand-

ing the disturbances it would undoubtedly engender, the stat-

ute makes no attempt to distinguish among various sorts of

nonlabor picketing on the basis of the harms they would in-

flict on the privacy interest. The apparent overinclusiveness

and underinclusiveness of the statute’s restriction would seem

largely to undermine appellant’s claim that the prohibition of

all nonlabor picketing can be justified by reference to the

State’s interest in maintaining domestic tranquility.”).

The pursuit of the “ideal” of judicial independence is not

compelling in a system that specifically sacrifices independ-

ence for accountability through elections. Generic statements

about independence beg the question of independence from

what? Surely not independence from popular opinion; that is

the very point, and surely the inevitable consequence, of elec-

tions — particularly recurring elections.

The Eighth Circuit’s claim that various other courts have

found that “the decision to elect judges cannot be regarded as

abandonment of a State’s interest in an independent judici-

ary,” 247 F.3d at 866-67, largely misses the point. Nobody

doubts that, even in an elected judiciary, independence re-

mains an interest — particularly in connection with impartial

treatment of individual litigants, adherence to controlling law,

and other non-discretionary aspects of judging. But with re-

gard to other aspects of judging that involve discretion, policy

——————————

judgment, or jurisprudential differences, the interest in ac-

countability inherent in elections waxes and the interest in

independence correspondingly wanes. Judicial independence

on such discretionary matters still remains an interest — it is

not “abandoned” — but it surely ceases to be the “ideal” and

cannot be deemed a compelling interest. It is simply one

among several conflicting interests at stake, and a state's valid

interest in marginal adjustments to the balance between ac-

countability and independence is subordinate to the structural

role of the First Amendment in the context of democratic

elections.

Minnesota case law does not establish a compelling in-

terest relevant to this case. The Eighth Circuit’s reliance on

Minnesota’s Peterson case for evidence of a compelling state

interest is misplaced. That case involved an equal protection

challenge to a rule that placed the designation “incumbent” on

the ballot next to the names of judicial candidates seeking re-

election. The claimed interest behind that rule was to in-

crease the information available to the voters:

“In assisting voters to cast their votes intelligently for

offices unfamiliar to the average voter, it is only a matter

of fairness that he be advised who the present judge is.

* * * The underlying purpose of the legislation is to

identify the candidate so that the voter will know whom

he is voting for.”

490 N.W.2d at 423-24 (quoting Gustafson v. Holm, 44

N.W.2d 443, 477 (Minn. 1950)). The court then applied ra-

tional-basis scrutiny and concluded that “the overriding pur-

pose of the ballot designation has been to assure an able, in-

dependent and stable judiciary while, at the same time, requir-

ing incumbent judges to submit to voter appraisal in an open

election,” and that those were “legitimate consid:rations

which satisfy the equal protection clause.” 490 N.W.2d at

424. Peterson's treatment of the competing interests of inde-

pendence for the judiciary and voter appraisal of judges as

“legitimate” under rational-basis scrutiny is not at all ade-

quate to demonstrate that judicial independence alone is a

“compelling” interest under strict scrutiny.

The background discussion in Peterson regarding the na-

ture of the Minnesota judiciary deals not with any interest in

the judiciary being independent from public opinion regard-

ing disputed issues, but rather with a judge’s independence

from direct partisan relationships with political parties. See

id. at 422 (noting the “inherent tension in the judicial election

process” and the legislature’s effort to counter conflicts “be-

tween the demands of an election process and the judicial im-

partiality required to decide cases free from political maneu-

vering” by requiring that judicial elections be nonpartisan).

But the court repeatedly recognized that responsiveness to the

voters is a competing interest that weighs against notions of

perfect independence. /d. at 422-23. The court ultimately

characterized Minnesota’s choice as a “middle-of-the-road

approach to judicial selection.” /d. at 425.

Regardless of whether Peterson might be read to support

a compelling interest in judicial independence from political

parties and partisan politics, the issue of speaking to and seek-

ing endorsements from political parties is no longer part of

this case and may present somewhat different considerations

in the context of Minnesota’s nonpartisan judicial election

process. But the “middle-of-the-road” treatment of the com-

peting interests of judicial independence and accountability to

the public suggests that the ideal of a judiciary independent

' from all (nonpartisan) political influence simply does not ex-

ist and is not sought in Minnesota.’ Judicial independence is

merely one interest among several competing interests. And

while it is certainly a legitimate interest, it is not a compelling

” Even assuming that Peterson should be read more broadly to state an

interest in independence from the electorate as well as from political par-

ties, merely having the State or its courts pronounce such an interest does

not make it so and does not answer the federal constitutional question of

whether such an interest is compelling.

interest sufficient to overcome the supervening weight of the

First Amendment in the context of core political speech.

The claimed interest in independence does not account

for judicial law-making and discretionary functions. The

conception of judges underlying the asserted interests in this

case also ignores the role of state courts in making the law,

not merely applying settled law to facts determined at trial.

For example, the court of appeals repeatedly refers to the

“judges” obligation to render impartial decisions based on the

law and facts.” 247 F.3d at 877. Similarly, the Third Circuit

in Stretton v. Disciplinary Bd., 944 F.2d 137, 142 (CA3

1991), offers a narrow conception of the judicial system as

“based on the concept of individualized decisions on chal-

lenged conduct and interpretations of law enacted by the other

branches of government.” But it is incorrect to view the judi-

cial function in state courts as merely interpretive. State-court

authority over the common law fully repudiates such a fed-

eral-centric notion of the judicial function. And even as to

interpretation, jurisprudential policy and values play a signifi-

cant role in the decision-making process and are not dictated

by external law.®

A judicial candidate’s announcement of his views on such

discretionary issues is fully compatible with the judicial role

and is often essential to understanding how a candidate will

implement that role. Jurisprudential views, discussed supra at

11, are the easiest example. Similarly, a greater or lesser re-

gard for victim and societal interests in criminal sentencing,

or a concern with inequality in sentencing for different drug

offenses, are perfectly valid points of discussion for jurists

® Interestingly, the notion that courts merely interpret law created by oth-

ers does little do distinguish the executive branch, which has the primary

function of executing the laws enacted by the legislature. While it is true

that executive officials have substantial discretion in numerous areas that

can be influenced by policies and politics, such discretion likewise does

not distinguish executive officials from judges when the latter are exercis-

ing their authority to create common law.

who will be called upon to exercise discretion when sentenc-

ing- within broad ranges based on a multitude of legislatively

prescribed factors. Class action and punitive damages rules

are further examples of topics that can raise both legal and

political controversy and that are subject to significant judi-

cial “legislation” in many circumstances. Finally, state su-

preme courts also act in a distinctly legislative capacity with

regard to ethical canons and procedural rules that, as this case

itself demonstrates, can become the focus of legal and politi-

cal debate.

Tangential effect on public confidence is not a compel-

ling interest. In addition to finding a compelling interest in

the independence and impartiality of jurists, the Eighth Cir-

cuit posited a further “equally important interest in preserving

public confidence in that independence and impartiality.”

247 F.3d at 867 (citations omitted). The concern over public

confidence, however, assumes that Minnesota citizens share

the same misperception as the Eighth Circuit regarding the

nature of the Minnesota judiciary. That assumption seems

unlikely given that Minnesotans have rejected efforts to abol-

ish the judicial election process and hence seem to have am-

ple confidence in an accountable judiciary. There is simply

no reason to think that the citizenry fails to understand the

competing interests in accountability and independence or

cannot be educated, through more speech rather than suppres-

sion, to understand those divergent elements in their judiciary.

Furthermore, insofar as the interest in public confidence

turns on maintaining the mere “appearance” of platonic inde-

pendence from all influence and the absence of opinions on

disputed issues, such an interest is especially suspect. If the

point of the announce clause is simply to hide from public

sight the views of candidates on disputed issues, then it is at

best pointless and at worst per se invalid. If we start with the

premise that judicial candidates in fact have views on the

various issues covered by the announce clause, then Canon 5

does nothing more than attempt to deprive the public of accu-

rate information about those candidates. But it is singularly

ineffective if the goal is to persuade the public that judges are

in fact tabula rasa — the public is not so naive and third-party

speakers during election campaigns will surely impute vari-

ous views to the candidates. One would expect the public to

have Jess confidence, not more, as a result of such a blatant

attempt at hiding the ball, and, indeed, there are frequent ac-

cusations that judges are “hiding behind the robe” when they

refuse to answer questions during a campaign. A more likely

expectation — consistent with First Amendment principles — is

that the public would gain more confidence in the system if

the candidates themselves gave accurate descriptions of their

views and were allowed to explain the valid role of such

views in the judicial process. And insofar as Canon 5 were

successful in leading the public to believe that jurists lacked

any views on relevant disputed issues, then an interest in such

misdirection should be per se invalid under the First Amend-

ment. Suppressing information in order to deceive the public

cannot be a compelling interest in and of itself, and in the

context of deception intended to influence election campaigns

such suppression strikes.at the very heart of democracy.

IV. RESTRICTING CANDIDATE SPEECH IN JUDICIAL

ELECTIONS SEVERELY BURDENS FIRST AMENDMENT

RIGHTS AND DISTORTS THE ELECTION PROCESS.

Aside from being justified through alleged interests in

tension with the public accountability established through use

of the election process, the announce clause also has a num-

ber of consequences at odds with core First Amendment prin-

ciples and with the democratic process.

First, barring candidates themselves from announcing

their views on matters relevant to their job performance de-

prives the public of the most accurate source of such informa-

tion. The rule effectively empties the marketplace of those

speakers with the most pertinent information and instead

leaves it to third parties to characterize — and mischaracterize

“ 26

— a jurist’s views on significant issues. Even in the face of

third-party distortion, candidates are restricted from correct-

ing any error by offering an accurate statement of their views.

Second, the rule creates incentives for peculiar evasions

that only further distort the campaign process and the judicial

function in general. In the case of challengers, there would be

great incentive to announce or publish one’s views just prior

to announcing a judicial candidacy, and then to let those pre-

vious statements do the work. In the case of incumbents,

there is a perverse incentive to write separate opinions and

dicta made for public consumption in an eventual election.

Third, to the extent there may be no other sources of in-

formation regarding a candidate’s views on particular matters,

the rule completely deprives the electorate of information

relevant to their vote. A candidate’s jurisprudential model

can bé a central and hotly disputed point in a judicial election,

yet voters may be deprived of such information or forced to

speculate when exercising their franchise. Likewise, it is dif-

ficult to imagine deciding how to vote in states where tort-

reform is a major issue without knowing a judicial candi-

date’s views on the role of punitive damages, on the relative

importance of compensation versus deterrence in tort law, and

on the scope of legislative authority to intrude upon the com-

mon law. Even criticism of past cases — as attempted by peti-

tioner Wersal — is forbidden by the announce clause, yet such

discussion might well provide the most direct and meaningful

comparison between two candidates.”

* Consider a challenger discussing a past decision authored by the incum-

bent and stating that he agreed with the dissent or even would have taken

yet a third path in resolving the case. Such discussion is of self-evident

value, deals with matters wholly in the past, and concerns an issue on

which the incumbent has already “announced” his views in a written opin-

ion. To deprive the public of any discussion of such opinions seems ab-

surd — how else would one evaluate a jurist’s performance in office but

through examination of his or her opinions.

— a

— <li it, —

While information regarding a candidate’s general experi-

ence, education, and professional qualifications would remain

available to the public, it can hardly be doubted that a candi-

date’s views will often be of critical importance in an elec-

tion. For example, if voters were asked to choose between

Justice Felix Frankfurter and Justice Hugo Black in a judicial

election, it would be impossible for them to make an in-

formed decision without access to the very different views of

those candidates on the Fourteenth Amendment incorporation

doctrine and the role of the courts implicit in their divergent

approaches. Compare Adamson v. California, 332 U.S. 46,

65 (1947) (Frankfurter, J., concurring) (“‘natural law’ has a

much longer and much better founded meaning and justifica-

tion than such subjective selection of the first eight Amend-

ments for incorporation into the Fourteenth”) with id. at 71-

72, 75 (Black, J., dissenting) (“one of the chief objects that

the provisions of the Amendment's first section, separately,

and as a whole, were intended to accomplish was to make the

Bill of Rights, applicable to the states”; “the ‘natural law’ for-

mula which the Court uses to reach its conclusion in this case

should be abandoned as an incongruous excrescence on our

Constitution. I believe that formula to be itself a violation of

our Constitution, in that it subtly conveys to courts, at the

expense of legislatures, ultimate power over public policies in

fields where no specific provision of the Constitution limits

legislative power.”).

Similarly, in an example particularly appropriate to the

historical origins of Minnesota’s elective judicial system, vot-

ers asked to choose between Chief Justice Roger Taney and

Justice Samuel Miller would be thwarted in the exercise of

their rights to influence the direction of the state judiciary if

they were deprived of the views of those jurists regarding due

process. Compare Dred Scott v. Sandford, 60 U.S. (19 How.)

292, 450 (1856) (“[A]n act of Congress which deprives a citi-

zen of the United States of his liberty or property, merely be-

cause he came himself or brought his property into a particu-

lar Territory of the United States, and who had committed no

offence against the laws, could hardly be dignified with the

name of due process of law.”), with Davidson v. City of New

Orleans, 96 U.S. (6 Otto) 97, 104-05 (1877) (when property

is taken for public use, and provides judicial review of the

lawfulness of the action, the “judgment in such proceedings

cannot be said to deprive the owner of his property without

due process of law, however obnoxious it may be to other ob-

jections”).

Fourth, inhibiting the candidates’ and the public’s ability

to focus on substantive and jurisprudential issues can only

increase the relative importance of non-substantive factors

such as name and physical appearance — read ethnicity, race,

and gender. The First Amendment assumes that through full

and free discussion of ideas the democratic process will be

strengthened and voter decision making will be improved.

Suppressing such discussion merely opens the field for as-

sumptions and prejudice to gain a more prominent role in de-

cision making.

V. ANNOUNCING JUDICIAL VIEWS SHOULD’ BE

PROTECTED SO LONG AS A CANDIDATE DOES NOT

MAKE A PROMISE OR COMMITMENT THAT WOULD

VIOLATE JUDICIAL OBLIGATIONS IF ACTED UPON.

Taking into account the competing concerns of judicial

accountability and independence, and the First Amendment

constraints on restricting political speech, the proper rule for

announcing views in judicial campaigns should focus on

whether the views discussed concern matters over which the

jurist will eventually have discretion to act according to those

views. Such a focus on discretion, or the lack thereof, means

that express promises or commitments of a specific result in

future cases can be seen as beyond a jurist’s discretion be-

cause they essentially violate the judicial obligation to con-

sider each case and listen to the arguments of the parties. Pre-

commitment says that the jurist will not consider the argu-

ments of the parties because his or her mind is already closed

to any alternative outcome. Such promises of improper be-

havior can be prohibited.

That limitation on speech can be reflected in a constitu-

tional rule distinguishing between the announcement of views

on how particular law should be applied to hypothesized or

undeveloped facts in some future case and announcements of

views regarding only the principles of the law or elements of

discretion that would frame the consideration of such future

cases. The distinction between discussing outcomes in future

cases and issues that might simply affect the outcome of cases

draws its strength from the unique aspects of an elected judi-

ciary and addresses both the need for independent and impar-

tial justice for individual litigants and the right of the public

to exert control over the direction of the courts and the make-

up of the judiciary.

Similarly, promises to ignore the law (statutory or consti-

tutional) likewise violate the judicial duty to apply the law,

and hence are not within the prospective discretion of a judi-

cial candidate. Such candidates thus can be prohibited from

campaigning on a platform that, for example, promises never

to let certain categories of persons out on bail notwithstanding

laws that establish criteria for allowing bail.

But aside from promises not to follow various non-

discretionary judicial duties, judicial candidates should be

free to announce their views on any matter relevant to issues

where judicial discretion validly comes into play. Thus, a

candidate should be free to opine on the weight, or lack

thereof, given to victims’ interests in sentencing where such

sentencing involves a multi-factor balancing test that leaves

the weight of the different factors to the discretion of the

judge. Likewise, candidates should be free to discuss their

policy views regarding business climate, consumer injuries,

or any of the myriad of factors bearing upon areas such as tort

law, punitive damages, class actions, and other topics where

the court acts to create, rather than merely interpret, the law.

And, of course, candidates should be free to discuss their ju-

risprudence and the approach they will take to the role of ju-

rist when interpreting laws created by others as well as in po-

tentially creating common-law rules of their own.

Finally, candidates should be free to discuss past cases

that are no longer pending. Such decisions are the ultimate

work-product of the judicial office, and all candidates should

be free to discuss that work product in the course of seeking

judicial office. Because such cases are fixed in both their

facts and their results, and because at least some jurists have,

by definition, already publicly opined on the issues contained

in decided cases, they provide a particularly valuable point of

comparison for citizens seeking to understand potential dif-

ferences between the candidates for whom they are being

asked to vote.

Under the standards just described, this Court should find

that Canon 5’s announce clause violates the First Amend-

ment. The conduct of petitioner Wersal that placed him in

jeopardy and triggered his challenge to the announce clause

was his discussion of his judicial philosophy of strict con-

struction and his criticism of certain past decisions of the

Minnesota Supreme Court. Such speech is fully protected

and does not pose a threat to any compelling state interest.

CONCLUSION

For the foregoing reasons, the decision of United States

Court of Appeals for the Eighth Circuit should be reversed.

-— ee

———— ee a

Dated: January 17, 2002.

Respectfully Submitted,