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

Supreme Court, U.S.

(v) FILED

| JAW 1 7 2002

| OFFICE OF THE CLERK |

_—-

No. 01-521

In the

Supreme Court of the United States

REPUBLICAN PARTY OF MINNESOTA, et al.,

Petitioners,

Vv.

VERNA KELLY, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF MINNESOTA STATE REPRESENTATIVE

PHILIP KRINKIE AND EIGHTEEN OTHER SIMILARLY

SITUATED STATE LEGISLATORS“ AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

RAYMOND C. ORTMAN, JR.

Counsel of Record

JULIANNE E. ORTMAN

15600 Wayzata Boulevard

Suite 208

Minnetonka, MN 55391

(952) 476-2640

January 17, 2002 Attorneys for Amici Curiae

*Complete list of sponsoring legislators appears on inside

cover

2002 - Bachman Legal Printing (612) 399.9518 @ 1-800-715-3582 @ Fax (612) 337-8053

Ho vv

Minnesota State Representative Greg Blaine

Minnesota State Representative Mark Buesgens

Minnesota State Senator Stephen Dille

Minnesota State Representative Rob Eastlund

Minnesota State Representative Sondra Erickson

Minnesota State Representative Chris Gerlach

Minnesota State Representative Tony Kielkucki

Minnesota State Representative Arlon Lindner

Minnesota State Representative Richard Mulder

Minnesota State Representative Bud Nornes

Minnesota State Representative Mark Olson

Minnesota State Representative Mike Osskopp

Minnesota State Senator Kenric Scheevel

Minnesota State Senator Grace Schwab

Minnesota State Senator Dan Stevens

Minnesota State Representative Kathy Tingelstad

Minnesota State Representative Torrey Westrom

Minnesota State Representative Thomas Workman

TT ii

INTEREST OF THE AMICI CURIAE ...............cccccccceeeseeeees 1

ee 2

EE 4

I. THE PEOPLE OF MINNESOTA HAVE MANDATED

THE ELECTION OF JUDGES TO ENSURE THAT

THEIR JUDGES SHALL BE _ DIRECTLY

UOTE WED? WEIL cocecsevcncsncusscessseccesecesssuseses 4

A. The People Of Minnesota Chose Direct Election Of

Judges With Full Knowledge That Those Elections,

Like All Others, Would Present Political Issues....... 4

B. Minnesota’s History Of Judicial Elections

Demonstrates That Judicial Offices Were Designed

EEN ceachiocnntsinaiintmenendeentenensnsssesesnes 7

C. The Electoral Process Requires That The People Be

Trusted To Make Their Own Decisions Based Upon

Se NO hinenrerncsieteetnninencensennsnssentetnecees 10

D. To The Extent Judges Make Pubiic Policy, They

Should Be Subjected To More Scrutiny In An

I ctieccicteidsntetinemennianmetpnmennnmennenses 14

Il. CANON 5 IS AN UNWARRANTED INTRUSION

UPON THE PREROGATIVES OF THE LEGISLATIVE

TABLE OF AUTHORITIES

CASES

Brown v. Hartlage, 456 U.S. 45 (1982) ............0-0++« 10, 11, 14

Buckley v. Valeo, 424 U.S. 1 (1976) .........s+ssessessessvesneeneeneees 12

Burson v. Freeman, 504 U.S. 191 (1992) ..............c0ccccceeeeee 17

In re: Disbarment of Tracy, 197 Minn. 35 (1936).............- 16

Doe v. Gomez, 542 N.W.2d 17 (Minn. 1995)...............000000+: 15

Dred Scott v. Sandford, 60 U.S. 393 (1856)..............cccceeeeeees 5

Mills v. Alabama, 384.U.S. 214 (1966)............e-s-ss0ssesseeeeee0s 10

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)................. 10

Moon v. Halverson, 206 Minn. 331 (1939) ............0-ss+-s+0+00 9

Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992).............. 7

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ...........s0000000 17

Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8"

Cir.) cert. granted, __U.S.__ (2001) ............0:.0000++- 8, 14, 17

State v. Russell, 477 N.W.2d 886 (Minn. 1991)................0+. 15

State v. Tenerelli, 598 N.W.2d 668 (Minn. 1999)................ 15

Whitney v. California, 274 U.S. 357 (1927) ..........---s+-se00e-0es 12

CONST'TUTIONAL PROVISIONS

U.S. Const., amends. 1, XTV ............c0cssee00e: 3, 14, 16, 17, 18

Bans Ce EB ctitictrinientionciianls 14

FS ee ee ee ee 16

See EN GIR, Ws 08 cctinectsntigetnieticctintstimamentatinananiciead 4, 16

STATUTES

Ge | EEE es 8

RE Se ee 9

OTHER AUTHORITIES

A Constitutional Alternative to the ABA's Gag Rules on

Judicial Campaign Speech, 73 Tex. L. Rev. 606 (Feb.

ie nntndenentiitephencepititinatinleniitippienmnneaitnnaaniedeniein 12, 15, 17

Bench & Bar, October 1998, p. 43.0............ccccccecceeeeeeeees 13, 15

Debates and Proceedings of the Constitutional Convention for

the Territory of Minnesota (T. Andrews reporter 1858) .....5

Debates and Proceedings of the Minnesota Constitutional

Convention (F. Smith reporter 1857)....................c..000-+- 5-7

W. Foster & M. Anderson, eds., For The Record, 150 Years

of Law & Lawyers in Minnesota (Minn. State Bar Assn.

J. Gardner, Consent, Legitimacy and Elections: Implementing

Popular Sovereignty Under The Lockean Constitution, 52

Rn ee 17

Judicial Branch Committee Report, Minnesota Constitutional

a IIT i ctnineerchirtenishicrernstenicusithonmmiahiaiianeinedeed 8

G. Theodore Mitan, Politics in Minnesota (Univ. of Minn.

ES ee ee a 8

Report of the Constitutional Commission of Minnesota

ESS ES Sk ee a 8

ill

Minnesota State Representative Phil Krinkie, Minnesota

State Representative Greg Blaine, Minnesota State

Representative Mark Buesgens, Minnesota State Senator

Stephen Dille, Minnesota State Representative Rob Eastlund,

Minnesota State Representative Sondra Erickson, Minnesota

State Representative Chris Gerlach, Minnesota State

Representative Tony Kielkucki, Minnesota State

Representative Arlon Lindner, Minnesota State

Representative Richard Mulder, Minnesota State

Representative Bud Nornes, Minnesota State Representative

Mark Olson, Minnesota State Representative Mike Osskopp,

Minnesota State Senator Kenric Scheevel, Minnesota State

Senator Grace Schwab, Minnesota State Senator Dan Stevens,

Minnesota State Representative Kathy Tingelstad, Minnesota

State Representative Torrey Westrom, and Minnesota State

Representative Thomas Workman (collectively,

“Legislators”) hereby respectfully submit this brief as amici

curiae in support of Petitioners in accordance with Supreme

Court Rule 37.3. All parties have consented to this filing, and

their written consents have been filed with the Court.’

INTEREST OF THE AMICI CURIAE

As members of the Minnesota State Legislature (15 from

the Minnesota House of Representatives and 4 from the

Minnesota Senate), Legislators come before this honorable

Court to present their view, from the legislative branch of our

State, of the paramount importance of free and open judicial

elections to Minnesota’s system of state government. Indeed,

because Minnesota’s constitutional requirement for judicial

elections differs so radically from the federal constitutional

provision for appointment and life tenure for judges,

Legislators’ perspective may be of particular assistance to this

' Pursuant to Supreme Court Rule 37.6, amici state that no counsel

for any party authored this brief in whole or in part and that no one other

than amici or their counsel made a monetary contribution to the

preparation or submission of this brief.

l

Court. Although Minnesota’s constitutional mechanism for

selecting judges may be different fromthe Federal model, it is

no less worthy of respect by the federal courts, including a

keen attentiveness to the fundamentally different public

policy interests presented by an electoral process versus an

appointment process.

In the view of the amici, an election can only be

legitimate if the People — who in their sovereign capacity

ordained and established our state Constitution — are given

meaningful and unfettered access to the views of all

candidates for election. Indeed, amici submit that the right of

the People to vote necessarily includes the right of the People

to vote wisely and with full access to the views of the

candidates, especially their views concerning disputed legal

and political issues. Each of the amici can attest from his or

her own experience as elected legislators that the free flow of

ideas is imperative during an election contest. Amici have a

strong interest in ensuring that all branches of Minnesota’s

state government remain equally accountable to the People

through the constitutionally-mandated electoral process. In

recognition of their sworn duty to support and defend the

constitution and laws of the United States and of the State of

Minnesota, and in recognition of the importance of the

question presented in this case to our State, amici offer their

support for Petitioners’ position.

—__ SUMMARY OF ARGUMENT

The Minnesota Constitution expressly provides for the

direct election of judges by the People. The framers of our

State constitution were well aware that the electoral process

for judges would present political issues. But our

constitutional framers and our People embraced both the

advantages and disadvantages of their decision in order to

advance what they deemed to be the greater good: namely,

that judges should be directly accountable to the People they

govern.

The State has no compelling interest in limiting the First

Amendment rights of judicial candidates. To the contrary, the

State has every interest in protecting the public’s

constitutional right to elect judges, and to ensure that votes

for judicial candidates are cast with knowledge and not in

ignorance. Even more important than the candidates’ right to

speak is the public’s right to hear the speech in evaluating

judicial candidates. The People can and must be trusted to

choose wisely, and to determine for themselves the

importance of “impartiality” in the greater scheme of electing

a quality judiciary. The People have reserved this right to

themselves, and they have not consented to any other manner

for the selection of judges.

The restrictions imposed by Canon 5 are a direct assault

upon the prerogative of the Legislature to make laws,

including laws concerning the conduct of elections. In its

drive to insulate incumbent judges from political pressures,

under the guise of an exercise of its inherent judicial power,

the judiciary upsets our constitutional system of checks and

balances, and unfairly favors incumbents over challengers.

This absence of viewpoint neutrality is fatal under First

Amendment scrutiny.

The regulation of judicial elections in the form of Canon

5 is a restriction adopted by the Respondents to regulate

elections for political offices. The judiciary’s purported self-

regulation in this instance restricting free speech in judicial

contests is a conflict of interest — self-servingly harboring

incumbent judges from the rigors of political campaigns. But

the restriction is even more insidious as an invasion of the

public’s sovereign right to hold accountable the judges they

elect to govern them. The public’s right of scrutiny and

review of judges does not operate as a limitation upon

Respondents’ responsibilities of oversight and management of

judges. Rather, judicial elections function as an additional,

but separate, manner of direct review by the People.

ARGUMENT

I. THE PEOPLE OF MINNESOTA’ HAVE

MANDATED THE ELECTION OF JUDGES TO

ENSURE THAT THEIR JUDGES SHALL BE

DIRECTLY ACCOUNTABLE TO THEM.

A. The People Of Minnesota Chose Direct Election

Of Judges With Full Knowledge That Those

Elections, Like All Others, Would Present

Political Issues.

Article VI, Section 7 of the Constitution of the State of

Minnesota (1974) provides as follows (emphasis added):

“The term of office of all judges shall be six years

and until their successors are qualified. They shall

be elected by the voters from the area which they are

to serve in the manner provided by law.”

From Minnesota’s admission into the Union in 1858, its

state constitution has always provided for the direct election

of all judges by the People of Minnesota. The debates of the

twin Constitutional Conventions confirm that the

constitutional provision for direct election of judges was a

deliberate departure from the Federal model, and that it was

made with full knowledge that an electoral process would

subject judges to political considerations.

The Republican Constitutional Convention embraced

direct election of judges with very little debate. It is clear

from these proceedings, however, that the Convention

delegates were well aware that political and partisan issues

might intrude into judicial election campaigns, but this

knowledge did not dissuade them from requiring election of

judges. In fact, the Convention defeated a modest

amendment offered by Thos. Galbraith that merely would

have provided for the election of judges on a different day

from that for the election of legislators and other

4

constitutional officers. The stated rationale for Mr.

Galbraith’s amendment was “that the excitement of mere

political and party issues should be kept as far as possible

from the election of judges.” Debates and Proceedings of the

Constitutional Convention for the Territory of Minnesota

(August 8, 1857), 406 (T. Andrews reporter 1858)

(hereinafter, “Republican Convention Debates”). But

delegate Charles Lowe did not agree that the amendment

would be “beneficial” or that it would “be possible to separate

the election of judges from political considerations. . . .” Id.

The amendment was quickly defeated. Id. at 407.

Moreover, the delegates were well aware that party

politics might well play a role in judicial decision making. In

the context of a debate concerning whether the franchise

should be limited to white men only and concerning this

Court’s infamous decision in Dred Scott v. Sandford, 60 U.S.

393 (1856), Republican delegate Chas. McClure predicted

that Democratic judges would feel themselves bound by the

Dred Scott decision “because it would be carrying out the

views of their party,” but that Republicans might take a

different view. Republi:an Convention Debates at 378

(August 7, 1857).

' The Democratic Constitutional Convention was

somewhat more contentious, but the result was the same.

Initially, the report of the Committee on the Judiciary for the

Democratic Convention in 1857 proposed a compromise

between factions favoring appointment of judges and election

of judges. The compromise position called for the direct

election of inferior judges and nomination of Supreme Court

judges by the Governor. But the Convention cast aside this

compromise and adopted an amendment offered by delegate

Lafayette Emmett requiring the direct election of supreme

court judges as well. See Debates and Proceedings of the

Minnesota Constitutional Convention (August 14, 1957), 493-

509 (F. Smith reporter, 1857) (hereinafter, “Democratic

Convention Debates”).

In offering his amendment, Mr. Emmett — who was then

the Attorney General of the Minnesota Territory’ — explained

(Democratic Convention Debates at 494):

“I think that the great principle of an elective

Judiciary will meet the hearty concurrence of the

people of this State, and that it will be entirely unsafe

to go before any people in this enlightened age with

a Constitution which denies to them the right to elect

all the officers by whom they are to be governed.”

Mr. Charles E. Flandrau supported the amendment, among

others, stressing the lofty Democratic ideal of “the people

being able to govern themselves.” Id. at 495.

Typical of those opposed to the election of judges were

the remarks of delegate B. B. Meeker, who bemoaned the fact

that if judges “are to be elected, [they] must necessarily be

essentially political Judges; they cannot be anything else.”

Unrelenting in his campaign for a supposedly independent

Judiciary, Mr. Meeker offered an amendment of his own,

after Mr. Emmett’s amendment was agreed to, that would

have lengthened the term of supreme court judges to 10 years

and would have made them ineligible for reelection, “so that

they shall never be influenced by any motives concerning

their reelection by the people.” Jd. at 509. But that

amendment was defeated. /d. at 511.

The views of Mr. Emmett and the majority prevailed at

the Constitutional Convention, and the direct election of all

judges was agreed to. The cry of the now familiar opposition

for an “independent judiciary” — apparently meaning an

appointed rather than an elected judiciary - was overcome by

these prescient remarks by Mr. Emmett (id. at 503):

“We hear a great deal of talk about an independent

Judiciary. The phrase is in everybody’s mouth.

? W. Foster & M. Anderson, eds., For The Record, 150 Years of Law

& Lawyers in Minnesota, 321 (Minn. State Bar Assn. 1999).

6

~~

What does it mean? Independent of whom?

Independent of what? Independent of the people?...

I say that in order to correct the errors of Judges -—

and it may be important to correct them, — the office

should be made elective.”

One year later, Lafayette Emmett became our State’s first

chief justice. For the Record, 321. ;

For the Constitutional Convention, the question of direct

election of judges was fundamentally a question of trust.

Could the people be trusted to elect their judges directly, to

sift and determine issues of judicial competence and

impartiality (among others) for themselves? Our

constitutional framers said yes. Mr. Emmett expressed

Minnesota’s abiding trust in its People to determine their own

course with these words: “if the people are incapable of

selecting their Judges, they are also incapable of selecting the

man who is to appoint the Judges.” Democratic Convention

Debates at 503.

B. Minnesota’s History Of Judicial Elections

Demonstrates That Judicial Offices Were

Designed To Be Political Offices.

The constitutional requirement of election of judges has

never been repealed, but rather has been amended to increase

— not decrease — the accountability of Minnesota’s judges. In

this regard, the term of supreme court judges initially was

seven years, but the Constitution later was amended to

provide for a six-year term. Moreover, the length of time

between an appointment to fill a judicial vacancy and

subsequent election of a successor was increased from 30

days to one year in order to give sufficient time “to allow the

public to reflect favorably or unfavorably on a judge’s

competence in office,” while still “retaining ultimate control

of the judiciary in the hands of the voting public.” Peterson

v. Stafford, 490 N.W.2d 418, 423 (Minn. 1992) (citing

Judicial Branch Committee Report, Minnesota Constitutional

ission (1972)).

cee dies for judicial elections

referred to by the Court of Appeals below (247 F.3d at 857)

was not a constitutional change regarding judicial elections.

Rather, the “nonpartisan” designation was part of a broader

legislative initiative to make virtually all political offices

“nonpartisan” - - because of the political pressures of

Prohibition:

“. . . the names of all candidates for nomination for

the office of chief justice, associate justice of the

supreme court, judges of the district court, probate

and municipal courts and all members of the state

legislature, and all elective county officers, and all

municipal offices in cities of the first and second

class, shall be placed upon a separate primary ballot

hereinafter designated as “non-partisan primary

ballot.

Party designation was dropped in 1913 largely as the

result of a parliamentary struggle between the “drys

and the “wets” in which the opponents of prohibition

working with liquor interests exploited sentiments

within the legislature that were strongly critical of

party machines and boss control. One -_Tust

remember that this was the era of progressivism,

when parties were disdained and political

independence was extolled, and when it was hoped

that direct political action by the people (through

means such as initiative, referendum, recall, and

direct primary) would lead to more responsible

government.

G. Theodore Mitan, Politics in Minnesota 57 (Univ. of Minn.

Press 1960). a .

Because of this pendulum in politics, all city, county,

legislative and judicial offices in Minnesota were designated

non-partisan, by legislative enactment. In 1913, the state

legislature enacted a statute providing (1913 Minn. Laws ch.

389, § 182) that:

> See also Report of the Constitutional Commission of Minnesota, .

(1948) (recommending increase in time between appointment =

appointee’s subsequent candidacy to “give sufficient time to enable

observation of the competence developed by the appointee prior to the

election”).

8

**# * *

The two candidates for nomination for every such

non-partisan office who shall receive the highest

number of votes, ascertained as provided by this act,

shall be declared the nominees and their names shall

be placed upon the election ballot, without party

designation... .”

All city, county, legislative, and judicial offices remained

non-partisan in Minnesota until 1973, when the legislature-

amended this section only by striking six words, “all members

of the state legislature,” from the renumbered section. See

1973 Minn. Laws ch. 3 § 202.03. The non-partisan.

designation was repealed as to legislators in 1973, but still

applies to county commissioners and other local office

holders, as well as to our judges.

For sixty years, most political offices in Minnesota were

nonpartisan. Yet, it is impossible to believe that all of the

candidates for these offices over these many years refrained

from discussing the issues and controversies of their day. Nor

is it possible to believe that the state ever had a legitimate

interest, and even less a compelling interest, in restricting

their right to do so. No one would even think of arguing that

such a designation prohibited free speech by legislative

candidates or candidates for county or local elected office.

- See Moon v. Halverson, 206 Minn. 331, 288 N.W. 579 (1939)

(non-partisan statute directed merely at filing procedures and

ballot designations). Accordingly, the “nonpartisan” label

still applicable to candidates for judicial office and county

9

and local elective offices cannot be read to support

restrictions on the speech of candidates for those offices.

C. The Electoral Process Requires That The People

Be Trusted To Make Their Own Decisions Based

Upon More Speech, Not Less.

It is not in the State’s best interest to restrict the speech

of any candidate that is running for elected office. Our State

is its People, not the current members of the Minnesota

bench, or the Minnesota State Bar Association (“MSBA”).

Our Supreme Court is an institution to be honored when it

acts honorably, and the lawyers in our state are worthy of

respect when they concern themselves with finding the truth

and serving the interests of justice. However, neither our

Supreme Court, nor the MSBA may legitimately claim

exclusive authority to articulate the best interests of the State

of Minnesota.

To the contrary, in our democracy the People have a

vested interest in obtaining as much information as possible

in order to cast an informed vote, including all of the

information that candidates believe important for an

evaluation of their candidacy. Indeed, this Court repeatedly

has observed that:

“there is practically universal agreement that a major

purpose of that [First] Amendment was to protect the

free discussion of governmental affairs . . . [and] it

can hardly be doubted that the constitutional

guarantee has its fullest and most urgent application

precisely to the conduct of campaigns for political

office.”

Brown v. Hartlage, 456 U.S. 45, 52-53 (1982) (quoting Mills

v. Alabama, 384 U.S. 214, 218-219 (1966) and Monitor

Patriot Co. v. Roy, 401 U.S. 265, 271-272 (1971)).

That Minnesota’s elected judges hold political office is

by constitutional design. Many of our State’s first judicial

10

races were partisan, with political party nominations. See For

the Record, 321-323. In fact, from 1858 to 1913, many of our

State’s Chief Justices had been nominated by one, and

sometimes two, political parties. Jd. Clearly, our judicial

offices were intended by our constitutional framers to be

political offices, as evidenced by our early citizens’ words,

actions, and subsequent conduct. Judicial elections, like any

other elections, thus afe entitled to the same constitutional

guarantee of free speech as enunciated by the Court in Brown

v. Hartlage.

In its book, For The Record, supra at 170, the MSBA

presented an overview of our State’s district court system,

which logically may be expanded to include our state’s entire

judicial branch:

There are three major objectives of the district court

System: (1) to provide impartial decisions of the

highest quality possible; (2) to ensure that justice is

timely and uniformly applied; and (3) to encourage

re.pect of the law and the administration of justice.

As Legislators, amici agree in theory with this basic

assessment of the objectives for our judiciary. But amici

disagree with the position that is argued by Respondents that

the objective of impartiality should be the paramount concern,

to the detriment of all other concerns, when it comes to the

election of our —. Legislators also dispute the hidden

trust ves Ww

judicial candidate can be impartial, or to weigh this concern

against other values. Quality decisions, uniformity of

decisions, and respect for the law and justice certainly are of

no less consequence than impartiality. Nor can Legislators

agree that impartiality should be paramount to federal and

State constitutional protections for the rights of free speech.

Amici trust that members of the electorate are wise

enough to evaluate the impartiality of judges (given

meaningful opportunity to review the decisions and views of

11

judicial candidates), as well as to evaluate such additional

concerns as quality and uniformity of decision, judicial

philosophy and judicial temperament. And amici trust the

People to determine for themselves, based upon all of the

information, the weight to be accorded to each of these

objectives when casting their ballots. Justice Brandeis once

observed “public discussion is a political duty” in our

country.” Whitney v. California, 274 U.S. 357, 375 (1927)

(concurring opinion). And as this Court affirmed in Buckley

v. Valeo, 424 U.S. 1, 52-53 (1976) (per curiam), Justice

Brandeis’ observation “applies with special force to

candidates for public office.”

The framers of our state constitution had the option and

example before them of the federal court, where judges are

appointed for a life tenure. Minnesota’s constitutional

framers rejected that option in favor of elections -- so as to

ensure direct accountability of judges to the people. That is

not to say that Minnesota’s way necessarily is better than the

federal system, but it is different and it must be respected by

this Court without importing sub silentio the rationale for the

competing system of appointed judges as the paramount

virtue.

Nothing short of a constitutional amendment should be

required to limit the People’s right to meaningfully select

their judges. Minnesota’s constitution requires judges to be

directly accountable to the electorate. Legislators believe that

any restriction upon the People’s constitutional prerogative to

select judges is a violation of the Minnesota state constitution

~— whether or not the “regulation” has been adopted by the

state’s Supreme Court, endorsed by the state’s bar

association, or advocated by any other group now before this

Court. “The critical right at stake here is the right of the

public to hear the candidates messages, not simply the rights

of the candidates to express themselves.” Note, A

Constitutional Alternative to the ABA’s Gag Rules on Judicial

Campaign Speech, 73 Tex. L. Rev. 606 (Feb. 1995). This

argument, that the public’s right to know is even more critical

than the candidates’ right to speak, is based upon the rationale

12

of self-governance, which forms the very basis of our

governmental authority (judicial, executive, and legislative).

Id.

Minnesota’s current Supreme Court Chief Justice, held in

high regard throughout our State, has made comments that

support the case for more meaningful elections. Chief Justice

Kathleen Blatz has reported that “{sJurvey after survey

confirms that a large segment of the public does not

understand or appreciate in a meaningful way the protections

the judicial system provides, the role it fulfills, and the

contributions it makes to the common good.” Chief Justice

Kathleen Blatz, “The State of the Judiciary,” Address to the

Minnesota State Bar Association, June 25, 1998, reprinted in

Bench & Bar, October 1998, 43, 46. Chief Justice Blatz

further remarked that the “level of public trust and confidence

is the ultimate measure of our courts’ performance and thus

these survey results are of serious concern... .” Id.

As Legislators, amici believe that prohibiting candidates

from discussing, responding to questions, and offering

opinions regarding controversial issues only perpetuates this

lack of trust and confidence recognized in the surveys cited

by Chief Justice Blatz. It is nothing more than hollow and

artful argument to claim that the public’s right to participate

in elections is secure without the candidates’ complimentary

right to speak regarding issues and controversies in our

courts. On what basis shall an intelligent voter evaluate and

select a candidate for public office?

Respondents’ position cavalierly dismisses the public’s

paramount interest in meaningful participation in judicial

elections with the unmistakably patronizing premise that the

public cannot be trusted to select qualified and quality

individuals to serve in the judiciary. Legislators reject that

premise. Minnesota has a very concerned and committed

electorate. In fact, Minnesota has one of the highest

percentages of qualified voter turnout nationwide; the

Minnesota Secretary of State’s Office reports that in the 2000

general election we had 3,547,000 eligible voters, of which

2,458,303 actually voted — a nearly 70% voter participation

13

rate. See Minnesota Secretary of State Elections Website,

Election Statistics and History: www.sos.state.mn.us/election/

result.html (Jan. 14, 2002).

The strength of our government lies in the wisdom of its

people. By promulgating Canon 5's restrictions upon the

speech of candidates for judicial office, Minnesota’s judiciary

has lost faith in the wisdom of the People to decide among all

candidates for themselves. And in attempting to protect the

People from themselves, that same judiciary has subtly but

perniciously undercut the People’s constitutional prerogative

to elect their judges. This violence to our State constitutional

system of governance cannot support the Court of Appeals’

finding that Canon 5 is justified by a compelling

“governmental interest in an independent and impartial

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

854, 867 (3® Cir.), cert. granted, __U.S.___ (2001).

Quite to the contrary, amici submit that the People of

Minnesota have a compelling state interest in more speech,

rather than less, from all of their candidates for elective

office, including judicial candidates. This compelling interest

is to be found not only in the State constitutional provision for

direct election of judges by the People, but also in the state

arid federal guarantees of free speech. See Minn. Const., art.

I, § 3; U.S. Const., amends. I, XIV; accord Brown v.

Hartlage, 456 U.S. at 53 (“{t}he political candidate does not

lose the protection of the First Amendment when he declares

himself for public office”).

D. To The Extent Judges Make Public Policy, They

Should Be Subjected To More Scrutiny In An

Election, Not Less.

All concede that our judges participate in governing the

people. For their participation they are accountable by those

governed in their courtrooms. “Judges are active participants

in the daily process of governing the American people;

therefore the people have a right to know how a judicial

candidate plans to conduct him or herself if she is selected to

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fill the office.” Note, A Constitutional Alternative to the

ABA's Gag Rules on Judicial Campaign Speech, 73 Tex. L.

Rev. 597, 613 (Feb. 1995).

Accountability to the public is even more critical given

the inescapable, although controversial, theory that judges

actually make law. “Lawmaking is the inevitable process of

an active, powerful judiciary that is exercising its

constitutional power.” /d., at 611. Minnesota Chief Justice

Blatz has describe well the role of judicial activism within the

current dynamics of cases in our courtrooms (Bench & Bar,

supra, at 44):

“People look to the criminal justice system today to

handle issues that individuals, _ families,

communities, and societal institutions used to

handle. Children out of control, aging parents whose

health situations raise heartrending questions of

biomedical ethics, complicated social interactions,

and substance abuse which underlies huge

percentages of our cases — these were not perceptible

issues just a generation ago, but are commonplace in

courtrooms throughout Minnesota every day.”

Further, in recent years, our Supreme Court has handed

down decisions that clearly announce new rights and

protections, and articulate new legal and public policy

standards. See, e.g., State v. Tenerelli, 598 N.W.2d 668

(Minn. 1999) (requiring criminal defendant to pay for

shawman ceremony sacrificing chicken and cleansing soul is

not religious and does not violate separation of church and

state), reh’g denied, 1999 Minn. LEXIS 600 (Sept. 2, 1999),

cert. denied, 528 U.S. 1165 (2000); State v. Russell, 477

N.W.2d 886, 888-889 (Minn. 1991) (announcing that

Minnesota’s equal protection clause is no longer. co-equal

with federal constitution’s equal protection clause, but

“different and more stringent”); Doe v. Gomez, 542 N.W.2d

17 (Minn. 1995) (finding state constitutional right to state-

funded abortion).

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Our judges routinely resolve social issues and attempt to

find rough justice where statutory and legal authority may not

exist. By doing so they also establish public policy — conduct

which is inherently legislative, and not judicial — and

challenge the separation of powers along the way. Yet while

our judges purport to represent the public, and make policy

decisions on their behalf, they have avoided meaningful

scrutiny by the voters regarding their performance.

Il. CANON 5 IS AN UNWARRANTED INTRUSION

UPON THE PREROGATIVES OF THE

LEGISLATIVE BRANCH.

At issue in this case is whether Canon 5 of the Minnesota

Code of Judicial Conduct, which is applicable to attorney

candidates for judicial office through Rule 8.2(b) of the

Minnesota Rules of Professional Conduct, violates the

Constitutional right to freedom of speech under U.S. Const.

amends. I, XIV.

Under the guise of regulating judicial conduct, Canon 5

unlawfully intrudes upon the constitutional prerogatives of

the legislature to enact laws, specifically to make laws

concerning the conduct of judicial elections. See Minn.

Const. art. IV, § 22; Minn. Const. art. VI, § 7. Running for

office — even a judicial office — is not a judicial act. It is a

political act beyond the power of the judiciary to regulate.

Election contests do not take place in courthouses before

judges; they take place in the whole public arena before the

whole People of the State. A lawyer candidate for a judicial

office is not participating in the administration of justice —

which the courts may regulate* — but rather is participating in

the democratic process itself, which only the People or the

Legislature may regulate. Moreover, to the extent that

* See, e.g., In re: Disbarment of Tracy, 197 Minn. 35, 44 (1936)

(finding inherent judicial power to discipline attorneys). The strictures of

Canon 5 are made applicable to attorney candidates for judicial office by

means of Rule 8.2(b) of the Minnesota Rules of Professional Conduct.

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limitations upon the speech of judicial candidates purport to

rely upon an exercise of inherent judicial power, such

limitations are particularly odious because they would seem

to avoid the possibility of any review by the legislative or

executive department, thereby overturning the constitutional

system of checks and balances. The judicial branch has a clear

conflict of interest in promulgating restrictions upon the

speech of judicial candidates. Such restrictions not only

trample the prerogatives of the Legislature, but also offend

sound principles of electoral neutrality that amici, as

Legislators, strive to defend. The restrictions are not neutral

as to viewpoint, as the Court of Appeals determined. 247

F.3d at 863. To the contrary, incumbent judges are permitted

to speak on disputed issues through their opinions; the same

Opportunity is not available to non-incumbent challengers,

however. This imbalance unfairly tends to favor the election

of incumbents over their challengers, and fairly raises the

question whether Canon 5 is merely a device to favor the

retention of incumbent judges. In any event, the absence of

viewpoint neutrality is fatal under First Amendment scrutiny.

See Burson v. Freeman, 504 U.S. 191, 197 (1992); R.A.V. v.

City of St. Paul, 505 U.S. 377, 387-90 (1992) (content

discrimination is evidence that “official suppression of ideas

is afoot’).

As Legislators, we believe that the People are sovereign:

“[t}he only power the government has is delegated from the

people themselves.” 73 Tex. L. Rev. at 615 (emphasis added).

In Lockean Theory, the legitimacy of the decisions made by

our judiciary, like all exercises of governmental authority,

rests entirely upon the consent of the governed. /d. at 615

(citing J. Gardner, Consent, Legitimacy and Elections:

Implementing Popular Sovereignty Under The Lockean

Constitution, 52 U. Pitt. L. Rev. 189, 192 (1990). The

sovereign People of our State have mandated that the People

will select our judges, and they have never consented to any

restriction of this sovereign power.

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CONCLUSION

Wherefore the Legislators Amici Curiae pray that the

decision of the Court of Appeals upholding the

constitutionality of the “announce” clause of Canon 5 be

reversed in all respects, and that said clause be invalidated as

contrary to the rights secured to the People by the First and

Fourteenth Amendments.

Dated: January 17, 2002

Respectfully submitted,

Raymond C. Ortman, Jr.

Counsel of Record

Julianne E. Ortman

15600 Wayzata Boulevard

Suite 208

Minnetonka, MN 55391

(952) 476-2640

ATTORNEYS FOR AMICI CURIAE

MINNESOTA STATE

REPRESENTATIVE

PHILIP KRINKIE, ET AL.

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