# 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%3A18

## Record

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

## Text

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

14

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).

15

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.

16

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0509%3A18. Public record. Not legal advice.