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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0509%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 765

## Text

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).

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0509%3A15. Public record. Not legal advice.