CAN THE FIRST AMENDMENT RIGHTS OF CANDIDATES FOR ELECTED JUDGESHIPS BE CURTAILED?
The U.S. Supreme Court Scrutinizes A State Judicial Conduct Code

By JULIE HILDEN


julhil@aol.com
----
Thursday, Mar. 21, 2002

The question before the Court, in essence, is whether such candidates must, pursuant to the First Amendment, to be allowed to participate in politically partisan activities, make partisan remarks, receive a political party's endorsement, and otherwise make clear their partisan status.

The Facts of the Case

The case arose because Minnesota Supreme Court candidate and attorney Gregory Wersal had wanted, in the course of his campaign, to speak at political party gatherings, seek the Republican Party's endorsement, and announce his views on disputed issues. However, Wersal feared these activities could violate the restrictions of the Minnesota Code of Judicial Conduct, and thereby jeopardize his ability to practice law.

Wersal's fears were quite reasonable. As the lower court opinion explains, the Code "restricts candidates from judicial office from attending and speaking at partisan political gatherings; identifying their membership in a political party; seeking, accepting, or using a political party endorsement; announcing their views on disputed legal and political issues; personally soliciting campaign contributions; or authorizing or knowingly permitting others to do these things on the candidate's behalf."

Wersal went to court, arguing that his First Amendment rights were being violated, and sought a temporary restraining order to prevent the Code of Conduct from being enforced against him. However, he lost - and later lost on appeal, as well.

As a result, Wersal was forced to cancel speaking engagements at Republican events, and never sought the Party's endorsement (and did not receive it). In addition, on the advice of counsel, Wersal declined to answer questions from the press and public if he thought his answers might seem to disclose his views on disputed legal and political issues.

Perhaps as a result of his having to comply with the Code's restrictions, Wersal came in third in the primary for the Minnesota Supreme Court seat - which ended his campaign.

Subsequently, the U.S. Supreme Court decided to hear Wersal's case - a decision that made a great deal of sense, for two reasons. First, the issue is of nationwide importance, affecting both the political and judicial systems of States with similar rules (and, as the lower court opinion made clear, there are quite a few).

Second, the issue goes directly to the heart of the First Amendment, because it concerns political speech and indeed, election-related speech. Even the appellate court that ruled against Wersal and the other plaintiffs conceded that "[f]reedom of speech reaches its high-water mark in the context of political expression."

Courts deciding First Amendment cases generally ask a series of three questions. First, they ask, is a fundamental right at stake? And second, they ask, does the State have a compelling interest - meaning, roughly, an interest of great weight, force, and importance - that justifies burdening that right?

In Wersal's case, the trial and appellate courts answered a strong yes to both of these questions. They recognized that First Amendment rights were critically at stake. However, they also found that the State of Minnesota had asserted a compelling interest.

The interest the State claimed was an interest in ensuring the integrity and independence of the Minnesota judiciary, and thus preserving its courts' fair administration of justice and its citizens' faith in the courts. Without the restrictions, the state argued, the public's view of judges as apolitical appliers of the law could be destroyed, and an appearance, or even actuality, of undue entanglement between judges and political parties could be created.

Third, courts ask, is the statute - or here, the Code of Conduct provision - narrowly tailored to fit the interest the state asserts? Factors that go into the "narrow tailoring" analysis include (1) whether the provision is indeed geared towards promoting the claimed interest; (2) whether the provision is drafted to go far beyond the promotion of the interest (in legal terms, whether it is "overinclusive"); and (3) whether the provision is drafted to fall far short of achieving the interest (that is, whether it is "underinclusive").

Another important consideration in the "narrow tailoring" analysis - and perhaps the most important one in Wersal's case - is whether there is a less restrictive alternative the state could employ to serve the same interest. A "less restrictive alternative," in legal parlance, is another means by which the government could accomplish its goal, but that would be less destructive of individual's Constitutional rights than the current law or provision.

At this step, the trial and appellate courts found the Code of Conduct provisions narrowly tailored, and thus upheld them as written - with one exception. This exception was the most blatantly anti-First Amendment of the prohibitions: the rule against candidates' announcing their positions on disputed legal or political issues.

That rule, as written, imposed what was in effect a total gag on the candidate's saying anything of relevance to voters in the time leading up to the election. Accordingly, no court could deny that it was highly problematic from a First Amendment standpoint. However, rather than invalidating this rule, the trial court chose to narrowly interpret it, and the appellate court agreed with that approach.

As whittled down by the trial court, the Minnesota prohibition on discussion by judicial candidates of "disputed legal or political issues" now extends only to a relatively small subset of those issues - the ones likely to come before the court on which the candidate would serve if elected.

In addition, the provision, as narrowly construed by the court, does not extend to broader issues of judicial philosophy and outlook. (Interestingly, this narrowing tracks the current practice, in the federal system, of questioning Supreme Court and other federal judicial nominees about their philosophy but not about how they would decide cases that might come before them.)

The dissenting judge, Judge Beam, did believe there was a less restrictive alternative for which Minnesota could have opted, however. He pointed out that "many other states have achieved the same essential goals [of preserving the judiciary's integrity and independence] without trenching upon clearly established constitutional rights."

Judge Beam also noted that if Minnesota's judges were appointed, rather than being elected, in the first place, then there would be no First Amendment harm at all. After all, appointed judges would not have to campaign, and thus would not be subject to the Code of Conduct, and their First Amendment rights would remain intact.

A Compelling Interest, Or No Interest At All?

Judge Beam's argument is, I think, a strong one. Moreover, the plaintiffs made a similar, and perhaps even more persuasive, argument at the "compelling interest" stage of the three-part analysis. They contended that "Minnesota has no interest in the independence of its judiciary because it has chosen to make its judges stand for election."

It was a clever point, and probably a correct one. Its thrust was that forcing judges to campaign in the first place makes them inherently beholden to, and dependent on, the voters they must woo. Moreover, forcing them to serve only limited terms means that they will inevitably issue their rulings in anticipation of what the voters will think at the next election - leading them to use their predictions of voters' opinions, rather than legal principles and philosophies, in their decision making. Under such a system, the plaintiffs suggested, independence is at best an illusion.

Indeed, the plaintiffs urged, Minnesota never had an independent judiciary in the first place, and you cannot protect what you never had. Rather, the Minnesota Constitution itself specifically sought to ensure that, to the contrary, the judiciary was not "independent from the voters," in part by mandating elections and limited terms for judges.

Minnesota's judicial terms, pursuant to the State's Constitution, are six years long - the same length as those of the State's U.S. Senators. Besides the fact that the judges sit on benches and read law books, how different are elected "judges" from elected "representatives" anyway? They, too, deliberate. They, too, are decisionmakers. And they, too, are accountable to the voters every six years.

Of course, it is difficult for courts - especially, as in this case, a federal court that is, perhaps uncomfortably, sitting in judgment on a state court system - to admit a basic flaw in the way many judges across the country are chosen. Moreover, the U.S. Supreme Court, and particularly its states' rights majority, is probably even more loath to acknowledge the truth that a state-level elected judge can never be as independent as he or she should be - or as independent as a federal judge is.

Federal judges are nominated, confirmed and life-tenured, and state judges really should be too, if they are to have the independence and integrity that states like Minnesota say they prize in their judiciaries. Meanwhile, to try to defend restrictions on judicial candidates' First Amendment rights by claiming to defend an independence that never existed in the first place is the height of folly.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in French translation by Actes Sud.

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