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Justices debate free-speech rights of judicial candidates

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    NMU         U.S. SUPREME COURT         Secret Courts         Mar 27, 2002    

Justices debate free-speech rights of judicial candidates

  • The Minnesota Republican Party challenged the constitutionality of a provision of the state’s Code of Judicial Conduct that forbids judicial candidates from announcing their views on disputed legal or political issues.

A provision in Minnesota’s Code of Judicial Conduct that forbids judicial candidates from announcing their views on disputed issues should be struck down as violating the candidates’ free-speech rights, an attorney for the state Republican Party argued before the U.S. Supreme Court on March 26.

But an attorney for the state Board of Judicial Standards defended the provision as necessary to preserve the independence of state judges.

The provision at issue, Canon 5 of the Minnesota Code of Judicial Conduct, forbids a judicial candidate from announcing his or her views on disputed legal or political issues.

James Bopp Jr., attorney for the Minnesota Republican Party, argued that the provision is unconstitutionally vague.

“You should strike it down,” Bopp told the court. “It’s impossible to know what’s included in the rule and what is not.”

Several justices appeared sympathetic to Bopp’s argument. Justice Sandra Day O’Connor wondered what would happen if a judge said, in ruling on a case, that in the judge’s view the death penalty was unconstitutional — and then the judge later ran for reelection.

“Can that be prohibited somehow?” O’Connor wondered.

In a discussion with Bopp over whether a judicial candidate could discuss past cases, Justice Antonin Scalia suggested that “if it’s too fuzzy for us to understand in order to rule on its constitutionality, it’s too fuzzy for a candidate” to conform his or her conduct to the rule.

Alan Gilbert, attorney for the state Board of Judicial Standards, said candidates are forbidden only from announcing how they would decide issues likely to come before the court. A candidate could criticize the decision of a judge, but the candidate could not say how he or she would rule in a future case, Gilbert said.

Evoking laughter in the courtroom, Justice Anthony Kennedy tested the type of campaign comment the provision could force: “If a candidate says, ‘This is the worst decision since Dred Scott, but I’m not going to tell you how I’d vote . . . ‘”

O’Connor said: “It’s such a problem to know exactly what the provision covers. What we end up with is, an incumbent judge can express views in a decision, but a candidate is restricted from doing the same thing. It’s kind of an odd system designed to, what, maintain incumbent judges?”

The case stems from the 1996 and 1998 judicial campaigns of Gregory Wersal, a Minneapolis attorney who ran for a seat on the Minnesota Supreme Court. During the first campaign, he announced that he favored strict construction of the Constitution. He withdrew from the race after someone filed an ethical complaint against him.

The next year, Wersal announced his candidacy for the 1998 state Supreme Court election. He sought an advisory opinion from the Minnesota Lawyers Professional Responsibility Board to determine whether the board would enforce Canon 5. When the board said it would enforce the rule, Wersal and the state Republican Party challenged the rule in court. A federal district court judge ruled against them, holding that the rule was constitutional. The U.S. Court of Appeals in St. Louis (8th Cir.) affirmed.

(Republican Party of Minnesota v. Kelly) MD


© 2002 The Reporters Committee for Freedom of the Press

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