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

Supreme Gour., U.S.

| FILE,

(y) JAN 1° 200!

No. 01-521

SEE wmemstc |

IN THE

Supreme Court of the GAnited States

REPUBLICAN PARTY OF MINNESOTA, ef ai.,

Petitioners,

v.

VERNA KELLY, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

Brief Amicus Curiae of the American Center for

Law and Justice Supporting Petitioners

COLBY M. May JAY ALAN SEKULOW

WALTER M. WEBER Counsel of Record

AMERICAN CENTERFORLAW JAMES M. HENDERSON, SR.

& JUSTICE AMERICAN CENTER FOR LAW

1650 Diagonal Road & JUSTICE

5* Floor 205 Third Street SE

Alexandria, VA 22314 Washington, DC 20003

(703) 740-1450 (202) 546-8890

Attorneys for Amicus Curiae

noe

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF AMICI

SUMMARY OF ARGUMENT

I. Against Every Principle of Sound, Republican

Government, the “Announce” Rule Prevents the

Electorate from Learning from Candidates for

Judicial Office Their Views on Matters of Great

Rag O° Fee as

a : “ ice, the “Announce” Rule Inequitably

en : Silences Challengers for Judicial Office but Does

Not Silence Incumbent Candidates

: CONCLUSION

*. This brief is filed with the consent of the parties. Letters

indicating such consent have been filed separately by the parties with

the Office of the Clerk of the Supreme Court.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Ademodi v. Minnesota, 616 N.W.2d 716 (Minn. 2000) ... 12

Batson v. Kentucky, 476 U.S. 79 (1986) ............... 14

Board of Airport Comm'rs v. Jews for Jesus,

442 US. SED CIGST) .nccccvccedenséstnneueenee l

Board of Educ. v. Grumet, 512 U.S. 687 (1994) .......... 1

Board of Education v. Pico, 457 U.S. 853 (1982) ........ 4

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ...... l

Bray v. Alexandria Women's Health Clinic,

506 U.S. SEB CIGGGD occ cedcdcenesstssuenneeee |

Brown v. State, 617 N.W.2d 421

Cian. Ci, Aap. BEBE occ cccsctecseoususataneenes 17

Cantwell v. Connecticut, 310 U.S. 296 (1940) ........... 3

Capitol Square Review & Advisory Bd. v. Pinette,

SiS U.S. 753 CIGRE) .. oc cvceswonstiueseneeeneee l

Cruzan v. Director, Missouri Dep't of Health,

497 US. 263 GSB) .cccccsccssisiseeeeee |

Denver Area Educ. Telcoms. Consortium v. FCC,

$18 US. 727 GRE cccccnctescnsaueeceeies 1-2

Eu vs. San Francisco County Democratic Central Committee,

469 US. ZI4 (IGP cc cccccssctssvecseeeneee 6-7

Halverson v. Taflin, 617 N.W.2d 448

1 Ge FO Pe ee ee 17

Hill v. Colorado, 530 U.S. 703 (2000) ............0645. l

In re Improvement of Murray County Ditch No. 34,

615 N.W.2d 40 (Minn. 2000) ..............045. 15-16

In re Welfare of C.P.K., 615 N.W.2d 832

QOGian. Ch. Agw. BOGE oo vécvccvcccseedeneseasees 17

In the Matter of the Welfare of: G.L.H., G.E.H., Jr.,

614 N.W.2d 718 (Minn. 2000) .... 2... 6. ee ec eee 15

(ii)

TABLE OF AUTHORITIES—cont ‘d

Page(s)

International Soc'y for Krishna Consciousness v. Lee,

EE 2

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

ee ice cc ene ccstoocees l

Lee v. ISKCON, 505 U.S. 672 (1992) ...... 2... ee eee nee l

Lee v. Weisman, 505 U.S. 577 (1992) ..... 2... ee ee ee 2

Meyer v. Nebraska, 262 U.S. 390 (1923) ............... 3

Minnesota v. Martin, 614 N.W.2d 214 (Minn. 2000) ..... 14

Minnesota v. Schmidt, 612 N.W.2d 871 (Minn. 2000) .... 13

Minnesota v. Wasson, 615 N.W.2d 316 (Minn. 2000) . 11-12

National Organization for Women v. Scheidler,

EE ee l

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ...... 2

Reno v. ACLU, 520 U.S. 1113 (1997) ................. 2

Republican Party of Minnesota v. Kelly,

63 F. Supp.2d 967 (D. Minn. 1999) ................. 8

Republican Party v. Kelly, 247 F.3d 854 (8" Cir. 2001) .... 8

Romer v. Evans, 517 U.S. 620 (1996)... .. 2... 2... oe ee 2

Roquemore v. State Farm Mut. Auto. Ins. Co.,

610 N.W.2d 694 (Minn. Ct. App. 2000) ............ 17

Rosenberger v. Rector & Visitors of the Univ. of Va.,

ERE re 2

Russell v. State, 562 N.W.2d 670 (Minn. 1997) ......... 12

Rust v. Sullivan, 500 U.S. 173 (1991) ... 2... 6 6. ee ee ee 2

Santa Fe Ind. School Dist. v. Doe, 530 U.S. 290 (2000) .... 1

Schenck v. Pro-Choice Network, 519 U.S. 357 (1997) ..... |

State v. Baumann, 616 N.W.2d 771

te cccntees) Gas cecabéeceseses 17

State v. Reece, 615 N.W.2d 852 (Minn. Ct. App. 2000) ... 17

(iii)

TABLE OF AUTHORITIES—cont ‘d

Page(s)

Tashjian v. Republican Party of Connecticut,

Ge ED. cecncccecnccccccessccceceses 7

Troxel v. Granville, 530 U.S. 57 (2000) ... 2... 6.6.00 00- 2

United Bhd. of Carpenters & Joiners, Local 610 v. Scott,

SP PEED Kncchdecnecesccedsnccesseces 3

United States v. Cruikshank, 92 U.S. 542 (1875) ......... 7

United States v. Kokinda, 497 U.S. 720 (1990) .......... |

Webster v. Reproductive Health Serv.,

EE bn nk ceknvessonedesseceseess 2

Westside Community Schools v. Mergens,

EEE cdnaccaubasadesonuseuseseees l

Constitutional Provisions, Statutes, Regulations

CRE, GOR, GH Bn cc cccccncacceccescceess 3, passim

Se SE LOD ncn ccercdvcnnsedecctencescsos 5

ee ID cccccbecddvcdeeccccecessecs 2

ED cn cuccécccapesdensdesscetoeses |

ED “no cccbscéncoascbuescuccocces l

EEE a occusevadcesccesevedescesnte 2

Minnesota Code of Judicial Conduct,

ED 6G coke genheédensceces 8, passim

Other Authorities

D.J. Tice, “What's In a Name,” St. Paul Pioneer

PUR, SE BOee wc vccewoccocscccwcccccsccccses 9

JEFFERSON: POLITICAL WRITINGS at 373-74

(Appleby and Ball ed. 1999) ...............4.. 3, 5-6

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY ..... 5

(iv)

STATEMENT OF INTEREST OF AMICI”

The American Center for Law and Justice (ACLJ) is a

nonprofit public interest law firm and education organization

dedicated to protecting First Amendment freedoms, human life,

and the family. ACLJ attorneys have briefed and argued, or

presented the views of amici curiae, in numerous cases before

this Court on these issues.’

**_ No counsel representing a party in this case authored this brief in

whole or in part, and no person or entity, other than amicus curiae, its

members, and its counsel, made a monetary contribution to the preparation

or submission of this brief.

1. Counsel for amicus curiae have participated in the presentation

of numerous cases in this Court, including: Board of Airport Comm'rs

v. Jews for Jesus, 482 U.S. 569 (1987); Westside Community Schools

v. Mergens, 496 U.S. 226 (1990) (Equal Access Act); Bray v.

Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (42 U.S.C.

§ 1985(3)); Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993) (Free Speech Clause); Lee v. ISKCON, 505 U.S.

672 (1992) (Free Speech Clause); National Organization for Women

_ v. Scheidler, 510 U.S. 249 (1994) (18 U.S.C. §§ 1961-68); United

States v. Kokinda, 497 U.S. 720 (1990) (Free Speech Clause and 39

C.F.R. § 232.1(h)\(1)); Schenck v. Pro-Choice Network, 519 U.S. 357

(1997) (Free Speech Clause); Santa Fe Ind. School Dist. v. Doe, 530

U.S. 290 (2000) (Establishment Clause); Hill v. Colorado, 530 U.S.

703 (2000) (Free Speech Clause).

In addition, counsel for amicus curiae have represented groups and

individuals as amici curiae in numerous cases before this Court,

including: Board of Educ. v. Grumet, 512 U.S. 687 (1994)

(Establishment Clause); Boy Scouts of America v. Dale, 530 U.S. 640

(2000) (First Amendment Freedom of Association); Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (Free Speech

and Establishment Clauses); Cruzan v. Director, Missouri Dep't of

Health, 497 U.S. 261 (1990) (Fourteenth Amendment); Denver Area

(1)

2

Nothing in the challenged provision of the Minnesota Code

of Judicial Conduct bars the residents of Minnesota from asking

judicial candidates in Minnesota about their views on important

matters of public policy and law. Nor is there anything

obviously underhanded or unseemly about making such

inquiries. Rather, the examination of candidates for any elective

office is the hallmark of an informed exercise of the elective

franchise. But no declared candidate for judicial office in

Minnesota is free to answer such inquiries. Even willing

candidates are barred from stating their views when asked for

thera. :

If the purpose of Minnesota Code of Judicial Conduct is to

insure that voters engage in uninformed, ignorant democracy,

then it is well-crafted to that purpose. If the intention of the

Code is to insure judicial independence by successful judicial

candidates, other provisions of the Code serve that purpose more

directly and efficiently. In any event, the challenged Code

provision cannot fairly be described as advancing any

democratic values. For these reasons, the outcome of this

dispute, and particularly the principles on which it will be

Educ. Telcoms. Consortium v. FCC, 518 U.S. 727 (1996) (Cable

Television Consumer Protection and Competition Act of 1992);

International Soc'y for Krishna Consciousness v. Lee, 50S U.S. 672

(1992) (Free Speech Clause); Lee v. Weisman, 505 U.S. 577 (1992);

Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Fourteenth

Amendment); Reno v. ACLU, 520 U.S. 1113 (1997) (Communications

Decency Act); Romer v. Evans, 517 U.S. 620 (1996) (Equal

Protection Clause); Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819 (1995) (Free Speech and Establishment Clauses);

Rust v. Sullivan, 500 U.S. 173 (1991) (42 U.S.C. §§ 300-300a-6 and

42 C.F.R. §§ 59.8-59.10); Troxel v. Granville, 530 U.S. 57 (2000)

(Fourteenth Amendment); Webster v. Reproductive Health Serv., 492

U.S. 490 (1989) (Fourteenth Amendment).

3

decided, are of grave concern to the American Center for Law

and Justice.

SUMMARY OF ARGUMENT

Thomas Jefferson, responding to a letter from Wilson

Nicholas on the power of the United States to expand its territory

by the admission of new States, expressed his doubt regarding

a construction of the Constitution given by Mr. Nicholas.’

While acknowledging the occasional need for the practice of

construing written constitutions, he expressed best the rule that

should guide this Court’s consideratign. of the present

controversy:

Our security is in the possession of written Constitution.

Let us not make it a blank paper by construction.’

The First Amendment bars Congress from making laws that

abridge the freedom of speech. U.S. Const. amend. I. This

Court has construed the Due Process Clause of the Fourteenth

Amendment as incorporating the requirements of the free speech

clause of the First Amendment, see, e.g., United Bhd. of

Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 831

(1983) (“The First Amendment, which by virtue of the Due

Process Clause of the Fourteenth Amendment now applies to

state governments and their officials, prohibits either Congress

or a State from making any ‘law . . . abridging the freedom of

speech, . . . or the right of the people peaceably to assemble’”).*

2. JEFFERSON: POLITICAL WRITINGS at 373-74 (Appleby and Ball

ed. 1999).

3. JEFFERSON, supra n.2, at 374.

4. See also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)

(“[w]e hold that the statute, as construed and applied to the appellants,

4

The effect of that incorporation is that the same restrictions that

bar the Congress from abridging the freedom of speech bar the

States, including Minnesota, from doing so, see id. In the

present case, itis pressed by the Petitioners, and correctly in the

view of this Amicus, that the right to freedom of speech

incorporated into the Fourteenth Amendment bars the State of

Minnesota from threatening judicial candidates with discipline

and disbarment for the entirely appropriate political act of

expressing their views on disputed legal or political issues. A

result under which judicial candidates continue to be barred from

announcing their views on disputed legal ard political questions

will have made, by construction of them, blank pages of the First

and Fourteenth Amendments.

This amicus is particularly concerned that the right of the

electorate to inquire about the legal and political views of

judicial candidates be considered in the resolution of this

dispute. This Court has often described the right to freedom of

speech in terms sensitive to the right of auditors to hear, to read,

and to learn. See, e.g., Board of Education v. Pico, 457 U.S. 853

(1982); of. Meyer v. Nebraska, 262 U.S. 390 (1923) (freedom of

inquiry protected under the Due Process Clause). In the present

case, although the voters of Minnesota are not prohibited by law

from inquiring about the political and legal opinions of judicial

candidates, their questions can never be answered. As a result,

voters are left to exercise their precious franchise in a dark that

is deeper than the night.

Nor can it be surprising when such an uncommonly silly law |

deprives them of their liberty without due process of law in

contravention of the Fourteenth Amendment. The fundamental

concept of liberty embodied in that Amendment embraces the liberties

guaranteed by the First Amendment”).

5

is inflicted on the rights of the people of a republic that

anomalous consequences demonstrate the foolhardiness and

inconstancy of the law. In the present case, as we demonstrate,

the effect of the challenged provision of the Code is not to

silence all candidates for judicial office. Instead, as we will

show, incumbent judges remain free to express their opinions on

disputed legal and political issues, but challenging candidates for

office are forced to stand mute.

ARGUMENT

I. AGAINST EVERY PRINCIPLE OF SOUND,

REPUBLICAN GOVERNMENT, THE “ANNOUNCE”

RULE PREVENTS THE ELECTORATE FROM

LEARNING FROM CANDIDATES FOR JUDICIAL

OFFICE THEIR VIEWS ON MATTERS OF GREAT

PUBLIC IMPORTANCE

In their genius, the Framers of the United States Constitution

embedded in that great document a guarantee that every State

would continually exist under a republican form of government.

U.S. Const. art. IV, § 4. “Republican” indicates a form of

government “having the characteristics of a republic” In turn,

“republic” describes “a government in which supreme power

resides in a body of citizens entitled to vote and is exercised by

elected officers and representatives responsible to them and

governing according to law .. ..”* Thus, at heart, that guarantee —

5. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, at 1928

(“WEBSTER’S”).

6. WEBSTER’S, supra n.5, at 1928. See also JEFFERSON, supra

n.2, at 207 (defining a “republic” as “a government by its citizens in

mass, acting directly and personally, according to rules established by

the Majority; and that every other government is more or less

6

means that those who vote wil! have the means to determine

whether the candidates of their choosing do, in fact, represent

their views and opinions.

In prior cases considering constitutional challenges to

restrictions on campaign speech this Court has demonstrated the

appropriate sensitivity to the important rights of the electorate.

In Eu vs. San Francisco County Democratic Central Committee,

489 U.S. 214, 223 (1989), for example, this court discounted the

interest of the state of California in suppressing campaign related

speech of political parties. There, the ban on party endorsements

of primary candidates, “directly affect[ed] speech which ‘is at

the core of our electoral process and of the First Amendment

freedoms.’” Eu, 489 U.S. at 222-23 (citing case). Because, as

this Court has said, “the First Amendment ‘has its fullest and

most urgent application’ to speech uttered during a campaign for

political office[,]” id. at 223 (citing cases), the California

restriction was subject to the most severe scrutiny. In like vein,

the Minnesota Code of Judicial Conduct, which not only affects,

but directly targets, speech at the core of the electoral process

and of the First Amendment, must be so scrutinized.

Minnesota’s “highly paternalistic approach,” Eu, 489 U.S. at

223 (internal quotation marks omitted), prohibiting candidates

from announcing their views on disputed legal or political

issues, “is generally suspect,” 489 U.S. at 223-24 (citing cases),

and patently anti-democratic. Minnesota acts as a censor,

deciding what information is appropriate for a voter to consider

republican, in proportion as it has in its composition more or less of

this ingredient of the direct action of the citizens”). Cf. United States

v. Cruikshank, 92 U.S. 542, 552 (1875) (“The very idea of a

government, republican in form, implies a right on the part of its

citizens to meet peaceably for consultation in respect to public affairs

and to petition for a redress of grievances”).

7

in selecting judicial candidates. There is one fact, however, that

the State of Minnesota treats as essential information for every

voter in a judicial election, namely the status of incumbent

candidates as such.’ The identification of incumbent status is,

purportedly, provided only in judicial elections, id. Perhaps the

State of Minnesota has discovered a fact about incumbency and

voters that can be made to speak volumes with that one word.

It seems more likely that, while silencing the discussion of views

and opinions on disputed legal and political issues, the State is

commending experience on the job as the important

consideration for voters.

Still more disturbing, the State of Minnesota has concluded

that it is appropriate to restrict the flow of information to voters

by silencing candidates for judicial office. The day has long

since passed when a State might claim to this Court that such a

restriction on the flow of information “enhanc!es]the ability of

its citizenry to make wise decisions .. . .” Tashjian v.

Republican Party of Connecticut, 479 U.S. 208, 221 (1986).

Clearly, the challenged provision of the Minnesota Code of

Judicial Conduct is incapable of being described as anything

other than an anti-democratic cloak designed to draw an

impenetrable darkness down over judicial candidates with the

result that Minnesota’s voters cast ballots with all the

effectiveness of shots in the dark.

Il. IN PRACTICE, THE “ANNOUNCE” RULE

INEQUITABLY SILENCES CHALLENGERS FOR

JUDICIAL OFFICE BUT DOES NOT SILENCE

INCUMBENT CANDIDATES.

Under the Minnesota Code of Judicial Conduct,

7. See D.J. Tice, “What’s In a Name,” St. Paul Pioneer Press,

Aug. 3, 2000, at 20A.

A candidate for a judicial office, including an incumbent

judge .. . shall not... . make pledges or promises of

conduct in office other than the faithful and impartial

performance of the duties of the office; announce his or

her views on disputed legal or political issues; or

misrepresent his or her identity, qualifications, present

position or other fact, or those of the opponent... .

Canon 5A(3)(d)(i), Minnesota Code of Judicial Conduct. In the

present litigation, challenges to the “announce” clause are

founded on the First and Fourteenth Amendment. Modestly

complicating this matter, below, federal courts were put in the

position to forecast the likely construction of the Canon if it

were to be taken up for consideration by the Minnesota courts.

See Republican Party of Minnesota v. Kelly, 63 F. Supp.2d 967,

983-86 (D. Minn. 1999); Republican Party v. Kelly, 247 F.3d

854, 881-83 (8 Cir. 2001). The trial court acknowledged the

difficulties presented by the announce clause; in fact, that court

concluded that it would be necessary to narrowly construe the

announce clause in order to prevent its invalidation. 63 F.

Supp.2d at 983-86. The narrow construction that the trial court

gave to the announce clause limited its application so that it

barred only the expression of views on issues of law and politics

likely to come before the court to which the candidate seeks

election. Jd.

In doing so, the trial court may have identified a construction

of the statute more closely related to its purported purposes than

is found by a facial reading of the statute. But the constitutional

defects remain. An important consideration is the disparate

impact that the announce clause causes. The Code purports to

treat challengers and incumbents identically. But, in fact, the

Canon silences challengers while leaving incumbents free to

announce their views on disputed legal or political issues.

9

While it is true that voters are free to ask judicial candidates

their views on disputed legal and political questions, no

candidate is permitted to respond to such inquiries in a way that

“announces” his view on disputed matters of law and politics.

But incumbent candidates in Minnesota flagrantly violate the ban

on “announcing” their views on disputed matters of law and

policy. Their violations take the form of written orders and

opinions published in decisions of Minnesota’s courts, published

during the period of time in which such incumbents are

announced candidates for reelection.’

That the Canon in fact puts incumbents and challengers in

quite different positions from each other is readily demonstrated

by examining the actual circumstances of the November 2000

general election in Minnesota. During that election, four sitting

justices of the Minnesota Supreme Court declared themselves

candidates for reelection: Chief Justice Blatz, and Justices

Gilbert, Lancaster, and Russell Anderson.’ While declared

candidates for judicial reelection, Canon SA(3)(d)(i) barred these

judges from announcing their views on disputed matters of law

8. So that no doubt can be left on this point, this amicus does not

seek to suggest that the judges and justices of Minnesota’s courts

should be barred, while standing for reelection, from carrying out their

constitutional and statutory duties. Instead, the point to be drawn

from the circumstances identified in this argument is that Minnesota’s

uncommonly silly law does not treat all qualified candidates the same

and, to avoid its application in fact to announcements made by

incumbent judges, Minnesota must ignore the patent application of the

statute.

9. See“Judges are elected to six-year terms in nonpartisan races,”

Minneapolis Star Tribune, Voter’s Guide (insert) at 31 (Nov. 3, 2000)

(identifying candidates for judicial posts).

10

and politics. In fact, as these amici will demonstrate below, each

of the incumbents announced their views on disputed matters of

law and politics. Worse than those violations, the bare existence

of the announce clause and the threat of enforcement forced each

challenging candidate to maintain a severe silence while the

views of their opponents were not only announced, they were

published by the agencies of the State.

Despite the provisions of the Minnesota Code of Judicial

Conduct, Minnesota voters were free to select judicial candidates

based upon the positions of those candidates on important

questions of law and politics, even ones in serious dispute. It

e yuld hardly be surprising to learn that voters cared about the

positions candidates hold on crime, the economy, privacy, and

other important issues. To the extent that a candidate expressed

his view on disputed issues of law or politics, however, he risked

the imposition of legal sanctions. The sole exception to the

Code is one in fact by which sitting judges who are declared

candidates announce their views on disputed legal and political

questions by deciding cases but are not investigated or

disciplined for doing so.

During the campaign season, while he is a candidate for a

trial court bench, a challenger might announce that there is too

great laxity in the practice of judges when sentencing violent

criminals; or the challenger might express the view that a tax or

an assessment should, or should not, have been imposed on a

special district. These views, and countless others, from

mundane questions of court management questions to questions

of life and death, expressed in terms of law and politics, might

be announced. But if those views are announced, then the

challenger is in apparent violation of Canon 5A(3)(d)(i), and

may be subject to investigation and discipline.

But during the election cycle leading to the general elections

11

of November 2000, Chief Justice Blatz, and Justices Anderson,

Gilbert and Ferguson announced their views on such questions

without any consequent discipline. They announced these views

by authoring opinions for the Minnesota Supreme Court, or in

concurrence with the Court, or in dissent from it. And even

when all they did was join the opinions of others, the act of

joining the opinion of another gives rise to a presumption that

the view expressed in the opinion is shared by those that join.

Justice Anderson, a declared candidate for reelection, for

example, did not stand on a speaker’s platform at the convention

of a political party and announce his support for a no-nonsense,

get-tough-on-crime policy. But he did author the opinion for the

Minnesota Supreme Court in Minnesota v. Wasson, 615 N.W.2d

316 (Minn. 2000). In that case, in an opinion by Justice

Anderson, the Minnesota Supreme Court upheld an

unannounced, no-knock search which produced the evidence

(drugs and weapons) which formed the besis of appellant’s

conviction. Jd. To the reasonable mind, Justice Anderson’s

opinion for the Court “announces” his preference for a lighter

burden of proof on police for their reliance on the reasonable

suspicion exception to the knock and announce requirement of

the Fourth Amendment. Such an announced view might,

perhaps, stand a candidate in quite good stead with an electorate

haunted by concerns about crime.

Of course, not everyone shares the view that criminals are

being molly-coddled. For the voter who is concerned that judges

are being overly harsh to criminals or being overly generous to

prosecutors in their rulings on disputes in criminal matters, it is

matter of some moment what views a judicial candidate hold

regarding these questions. While his challenger was silenced by

law, Justice Gilbert, dissenting in Wasson, “announced” that he

would have required a higher showing of reasonable suspicion

for a no-knock search and that, in his opinion, the circumstances

12

of the case were insufficient to outweigh the constitutional

guarantee of the expectation of privacy and sanctity of the home

in the Fourth Amendment. Jd. at 323. And although Justice

Gilbert was free to announce this view in an obviously disputed

matter of law, his election opponent was unable to announce his

view regarding Justice Gilbert’s position in an appeal to those

Minnesotans whose concerns did not include insuring that

criminals had a cakewalk in court.

In a similar vein, Justice Anderson again was able to

announce his views on a disputed legal matter, and also to prove

his no-nonsense approach to crime in Ademodi v. Minnesota,

616 N.W.2d 716 (Minn. 2000). In Ademodi, in an opinion by

Justice Anderson, the Minnesota Supreme Court rejected a

fundamental fairness claim raised on appeal by a foreign national

and refused to exercise its discretion to consider the case on the

merits. Ademodi had failed to raise a claim under the Vienna

Convention on direct appeal and sought to raise it before the

Minnesota Supreme Court. Under the Vienna Convention, a

state must inform a consulate that its national has been arrested

or is in custody. The Minnesota Supreme Court had held

previously that it could consider a claim not raised on direct

appeal “in limited situations when fairness so requires and when

the petitioner did not deliberately and inexcusably fail to raise

the issue.” Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).

But Justice Anderson declined to do so, and instead, the Court

remanded a separate claim of ineffective counsel as the

appropriate resolution of the appeal. 616 N.W.2d at 719.

During the 2000 election season, a declared challenger for the

position of Justice on the Minnesota Supreme Court might also

have wanted to announce a like view regarding the question of

fundamental fairness. Explaining to potential supporters his

views on disputed legal and political questions might well be

viewed by such a challenging candidate as the best and

13

appropriate way to demonstrate his fitness and qualification for

judicial office. Unlike Justice Anderson, however, such a

challenger would be in violation of Canon 5A(3)(d)(i) and

risking legal sanctions by doing so.

In Minnesota v. Schmidt, 612 N.W.2d 871 (Minn. 2000),

Justice Anderson again announced his views on a disputed legal

issue, and in doing so was able to demonstrate to the electorate

his law and order mien. Schmidt appealed from his conviction

on the basis that the prosecution presented an instance of double

jeopardy. After Schmidt was convicted of stalking, the statute

under which Schmidt was charged was declared

unconstitutional; the state then retried him under a separate

statutory subsection. Justice Anderson rejected the double

jeopardy claim, concluding, “where a conviction is overturned

on appeal due to the unconstitutionality of the charging statute,

prosecuting the defendant under a different statute is not the sort

of governmental oppression against which double jeopardy was

intended to protect criminal defendants.” 612 N.W.2d at 876

(citation omitted).

Again, an election challenger might see the value in

announcing his view that retrial in such cases should not be

considered a form of double jeopardy - or he might conclude

that it was double jeopardy and want voters to know that view.

If a challenger published a letter to the editor of a local ©

newspaper expressing either view, however, he would be in

patent violation of the Minnesota Code of Judicial Conduct.

Nor was Justice Anderson the sole incumbent candidate to

have the benefit of his position on the bench in making

“protected” announcements of his views on disputed legal and

political matters. The question of race and considerations of

race in the exercise of peremptory strikes is one that has

presented great controversy and has even been the source of

14

dispute and contention in this Court. See, e.g., Batson v.

Kentucky, 476 U.S. 79 (1986). And, unsurprisingly, this fertile

source of dispute over law politics has come before the

Minnesota Supreme Court.

While he was a declared incumbent candidate during the 2000

election cycle, Justice Gilbert authored the majority opinion in

Minnesota v. Martin, 614 N.W.2d 214 (Minn. 2000). In Martin,

appellant challenged his murder conviction on the ground that

the State exercised its peremptory strikes in a racially

discriminatory manner when it struck the lone A frican-Amenican

from the jury pool. 614 N.W.2d at 221. Based on race-neutral

justifications offered by the prosecutor (members of the juror’s

family had been or were currently in prison ) and the

considerable deference given to the trial court’s credibility

determinations, Justice Gilbert, for the Court, announced the

view that the appellant failed to show that the prosecutor acted

with discriminatory intent. Specifically, Justice Gilbert rejected

appellant’s argument that such exclusions disparately impact

frequently arrested and more often have criminal inal records

because of the scrutiny they face from the predominantly white

police force.” 614 N.W.2d at 223. Despite announcing his view

on this contentious and controversial legal and political issue

(one that must certainly be of the kind likely to come before the

courts), Justice Gilbert was not investigated or disciplined for

violating the Minnesota Code of Judicial Conduct.

Of course, questions of criminal law and procedure are not

the only disputed legal and political matters that judges on

Minnesota’s courts face. Nor are they the only matters about

which incumbents announce their views despite the restrictions

of Canon 5A(3)(d)(i).

Domestic relations law provides another fertile field for

15

contention and dispute. As was demonstrated when this Court

considered and decided Troxel v. Granville, 530 U.S. 57 (2000),

questions of custody, visitation, and support, stir the people of

this Nation as deeply as any issue. While she was standing for

reelection during the 2000 election cycle, Chief Justice Blatz

announced her view on a disputed legal matter regarding the

termination of parental rights. In Jn the Matter of the Welfare of:

G.LH., G.E.H., Jr., 614 N.W.2d 718 (Minn. 2000), Chief

Justice Blatz rejected an appeal by a mother whose rights had

been terminated. In that case, in the trial court, on the day of her

termination of parental rights trial, the respondent fired the

public defender who had represented her for over a year. The

disputed issue on appeal was whether the statutory right to

counsel in termination proceedings was analogous to the

constitutional right to counsel possessed by criminal defendants.

If so, the mother argued, a formal waiver procedure was required

to ensure that the waiver of counsel is voluntary and intelligent.

614 N.W.2d at 720. Chief Justice Blatz rejected the analogy,

explaining that a statutory right is not equivalent to a

constitutional right and that the right to appointed counsel only

exists when the litigant may be deprived of physical liberty. 614

N.W.2d at 722.

Of course, reasonable minds might disagree on the question

answered by Chief Justice Blatz. But whether a challenger

shared Chief Justice’s Blatz’s view, or rejected it, he could not

announce his view on the question while a declared candidate for

judicial office. Chief Justice Blatz did.

Just as certain as death, taxes nonetheless present moments of

hig’ controversy and heated dispute, both as political questions

and legal ones. And Chief Justice Blatz took the opportunity

presented by the Minnesota Supreme Court’s decision in Jn re

Improvement of Murray County Ditch No. 34, 615 N.W.2d 40

(Minn. 2000), to announce her views on a disputed legal and

16

political question in an opinion dissenting from the views of the

majority of the Court. There, the Court upheld an administrative

decision to assess benefitted property owners only for

improvements done to a deteriorating drainage ditch in need of

authority correctly applied Minn. Stat. §§ 103E.215 (6), as the

improvement was to a separable portion of the ditch. In dissent,

Chief Justice Blatz announced her view that the record before

the court did not support the conclusion that the improvement

project was separable from the remainder of the drainage system.

Few candidates for elective office miss the value of easing the

burden of taxes, or at least, the value of expressing the view that

such burdens should be eased. The majority in Jn re

Improvement of Murray County Ditch No. 34, might have

preferred to abstain, or to have held its decision until after the

election cycle. But, by doing its duty, the Minnesota Supreme

Court created the opportunity for Chief Justice Blatz to

announce her views in dissent on this disputed matter. Of

course, had the challenger for her position on the court

announced a like view, or disagreed with her conclusions, as part

of his campaign for office, he would have been in patent

violation of the Minnesota Code of Judicial Conduct.

In each of the foregoing cases, incumbents announced their |

views on disputed legal and political questions. None of the

incumbent candidates on the Minnesota Supreme Court was

investigated or disciplined as a consequence of doing so.

Because of the opportunity to announce their views in writing by

deciding cases, incumbent candidates receive a special benefit

from the operation of Canon 5A(3)(d)(i). But Canon 5A(3)(d)(i)

hangs precipitously over challengers, virtually insuring that

voters will be deprived of the opportunity to have their questions

17

about the views of such candidates on disputed questions of law

and politics answered."°

CONCLUSION

For the foregoing reasons, the decision of the United States

Court of Appeals should be reversed.

10. The foregoing discussion does not bring to account the four

sitting judges of the Minnesota Court of Appeals who were declared

candidates for reelection during the 2000 election cycle: Judges

Harten, Anderson, Shumaker, and Halbrooks. Each of these

incumbent judicial candidates on Minnesota’s intermediate appellate

court announced their views on disputed legal and political questions

in areas of high controversy and public contention. See, e.g., State v.

Reece, 615 N.W.2d 852 (Minn. Ct. App. 2000) (departures from state

sentencing guidelines); State v. Baumann, 616 N.W.2d 771 (Minn. Ct.

App. 2000) (vehicle stops for DWI); Halverson v. Taflin, 617 N.W.2d

448 (Minn. Ct. App. 2000) (child custody); Jn re Welfare of C.P.K..,

615 N.W.2d 832 (Minn. Ct. App. 2000) (cross burning and the right

to freedom of speech); Roguemore v. State Farm Mut. Auto. Ins. Co.,

610 N.W.2d 694 (Minn. Ct. App. 2000) (economic injury and tort

law); Brown v. State, 617 N.W.2d 421 (Minn. Ct. App. 2000)

(distribution of Minnesota’s settlement with tobacco companies).

18

Respectfully submitted,

CoLsy M. May JaY ALAN SEKULOW

WALTER M. WEBER Counsel of Record

AMERICAN CENTER FORLAW JAMES M. HENDERSON, SR.

& JUSTICE AMERICAN CENTER FOR LAW

1650 Diagonal Road & JUSTICE

5* Floor 205 Third Street SE

Alexandria, VA 22314 Washington, DC 20003

(703) 740-1450 (202) 546-8890

Attorneys for Amici Curiae

January 17, 2002.