High Court Holds Judicial Candidates May Address Issues

By Richard E. Coleson, J.D.

On June 27, 2002, the United States Supreme Court struck down Minnesota's "announce clause," which barred candidates seeking election as judges in that state from announcing their views on disputed legal and political issues. The case, Republican Party of Minnesota v. White, was argued by James Bopp, Jr., general counsel for the James Madison Center for Free Speech, who is also general counsel for the National Right to Life Committee.

"This decision ends the charade in which states hold elections for judges, then forbid the judges to speak their minds and the voters from hearing what they have to say," Bopp declared. "It makes no common or constitutional sense to insist that judges must convince voters to elect them, then muzzle judges on the campaign trail. The Constitution doesn't allow Americans to be forced to vote for
judicial question marks."

Gregory Wersal, who ran for associate justice of the Minnesota Supreme Court and originally brought the case, told the Minneapolis Star-Tribune that the decision was "a great victory for those of us who believe in elections and the power of people to govern themselves."

In addition to support from the Minnesota Republican Party, which joined the suit in 1998, Ralph Nader's Public Citizen and the American Civil Liberties Union sided with Wersal, as did groups such as the U.S. Chamber of Commerce.

Republican Party of Minnesota v. White arose after Wersal ran for associate justice of the Minnesota Supreme Court in 1996 and 1998. He was threatened with discipline for criticizing several of that court's decisions, including the court's position on abortion.

Although a complaint against him was dropped because of questions about the constitutionality of the announce clause, his efforts to obtain official clarification from the governing ethical boards yielded no clear guidelines. Wersal filed suit and was joined as a plaintiff by the Minnesota Republican Party and others asserting the First Amendment right to receive the information that Wersal wished to "announce."

Both the district and Eighth Circuit appellate courts upheld the statute as necessary to protect judicial impartiality and the appearance of judicial impartiality.

When oral arguments were heard in March, Justice Scalia was highly skeptical. "I frankly am absolutely befuddled by the fact that Minnesota wants its judges elected, and then enacts statutory requirements preventing the electorate from knowing how they'd decide if they were elected to the bench," he said.

Other justices found it odd that, on the one hand, judicial candidates could talk about old cases, but, on the other hand, could never talk about current ones, lest this be interpreted as an example of prejudging a case. Asked Chief Justice William Rehnquist, "Does that distinction make any sense?"

Justice Anthony M. Kennedy went further, telling Minnesota Solicitor General Alan I. Gilbert, "You don't trust the electorate of Minnesota to decide if a candidate has judicial temperament," according to the Washington Post.

Even though most justices expressed considerable skepticism during oral arguments, the final vote was 5-4 that the rule violated the First Amendment's guarantee of freedom of speech.

Writing for the Court, Justice Scalia said that the Minnesota rule clearly burdens free speech rights and cannot be justified to assure judicial impartiality "inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues." The Court concluded the First Amendment does not permit "leaving the principle of elections in place while preventing candidates from discussing what elections are about."

According to Bopp, "The Court in effect said that making sure judges are impartial in particular cases doesn't justify a general gag rule for judges running for office. As long as a judicial candidate doesn't pledge to rule in a particular way in a specific case, then judicial candidates ought to be able to speak their minds." Bopp added, "The voters shouldn't have to decide whether to choose judges based solely on their resumes."

The Supreme Court acknowledged that the state has a compelling interest in an impartial judiciary. "But the Court held that the Minnesota rule forbidding judicial candidates from simply announcing their views on political or legal issues goes much too far - - effectively reducing election campaigns to recitations of name, rank, and serial number," Bopp said.

The case is significant to pro-life organizations because judicial candidates in Minnesota can no longer say they will not answer voter-guide questions about their views on the life issues because they are ethically bound not to. Candidates can say, for example, that they believe that Roe v. Wade was wrongly decided.

However, as the Court noted, candidate may also decline to answer on the basis that they personally believe it is inappropriate for a judicial candidate to respond to questions about public issues. But they cannot allege that they will be disbarred or otherwise sanctioned for responding to questionnaires by citizen groups.

According to the Washington Post, "Eight states - - Arizona, Colorado, Iowa, Maryland, Mississippi, Missouri, New Mexico and Pennsylvania - - emulate Minnesota's additional language barring candidates from expressing views on disputed issues."

The James Madison Center's briefs before the U.S. Supreme Court are available online at www.jamesmadisoncenter.org.