Court lets politics into judge’s races

"MN Courts"

08/03/2005

Pam Louwagie, Dane Smith and Margaret Zack,
Star Tribune
August 3, 2005

A federal appeals court paved the way Tuesday for potential knock-down partisan fights among judicial candidates in Minnesota with a ruling that will allow candidates to align with political parties and ask for campaign donations.

“We’d urge the public not to take politics into account when electing judicial candidates, and reject any campaign that makes elections political,” Cole said.

Minneapolis attorney George Soule, who headed Gov. Jesse Ventura’s judicial selection committee and also served on Gov. Arne Carlson’s judicial commission, pointed to one judicial campaign in Illinois where Republicans lined up for one candidate and the Democrats another. It cost $10 million.

“I hope Minnesota voters make an investment in rewarding candidates who don’t run on special interest,” Soule said.

Wiggle room?

Plaintiffs in the case decided Tuesday specifically challenged Minnesota’s rules prohibiting judicial candidates from soliciting campaign funds, seeking party endorsements, identifying themselves as members of political parties and attending and speaking at political gatherings.

While some in the state worry that a judicial candidate aligning with a political party will damage impartiality, it’s no different than a candidate aligning with other special interest groups such as the National Rifle Association, the National Organization for Women or other political interest groups, said the court decision, which was decided by 13 8th Circuit judges hearing the case and written by Judge C. Arlen Beam.

Many candidates were politically aligned before becoming running for office anyway, the decision said.

The best defense against a judge who is personally involved or biased about an issue before the bench is for the judge to recuse him or herself, the court wrote.

Hamline’s Schultz said the decision may leave some wiggle room for the state to draw tougher rules demanding recusals.

Campaign financing could also change drastically under the decision.

The court ousted rules that prohibited candidates from signing their names to solicitation letters or making blanket solicitations to large groups. It was not clear when a judicial candidate or judge might be allowed to personally solicit funds from individuals.

Schultz predicted “much concern” by lawyers about campaign contributions. “They also might now feel, do they have to give to judges if they’re appearing before them?” Schultz said.

If a campaign does get too political for voters, the state could turn to an alternative mentioned by the Circuit Court: judicial appointments.

“There is much to be said for appointing judges instead of electing them,” the court wrote, “perhaps the chief reason being the avoidance of potential conflict between the selection process and core constitutional protections.”

Schultz said a nasty, politically driven, big-money judicial campaign could instigate a bigger push to change the system.

“Essentially, what the Court of Appeals is saying,” Schultz said, “is if you guys don’t like it, you ought to move to an appointed judiciary.”

The ruling by the U.S. 8th Circuit Court of Appeals invalidated longstanding restrictions on Minnesota’s judicial candidates that attempted to prevent campaigns from affecting a judge’s impartiality. The court said those restrictions violate First Amendment rights.

The ruling got cheers from those who argue that voters should have more information on judicial candidates and that candidates should be able to speak freely. But for many in the legal community, it ignited fears of the public electing judges on the basis of political or social agendas.

“It basically changes completely or potentially how we select our justices and our judges in the state,” said David Schultz, a Hamline University law and political science professor. “It’s a huge decision.”

The decision is likely to garner attention from other states with similar restrictions.

The Appeals Court ruling followed an earlier, related U.S. Supreme Court decision that struck down a Minnesota rule barring judicial candidates from announcing their views on “disputed legal or political issues.” Both rulings were a victory for the Minnesota Republican Party and Golden Valley lawyer Greg Wersal, a Supreme Court candidate in 1998 and 2000.

Many in the state’s legal and political system said it is too early to guess how Tuesday’s decision will play out. Top leaders of the state’s major political parties disagreed about whether more openly partisan and ideological judicial campaigns will be good for the judiciary. But they tended to agree that it’s hard to predict whether the ruling will actually result in major, widespread changes in how judges and their challengers conduct their campaigns.

DFL Party chairman Brian Melendez, a lawyer, said he thought the decision was “correct as a matter of constitutional law, but I still think it’s bad policy.” Melendez said he thinks the Minnesota tradition of restraint in bringing parties and issues into judicial races has produced “a very talented and nonpoliticized judiciary.”

Unless the Republican Party gets aggressively involved—and many Republican lawyers may oppose such an initiative, Melendez said—he will urge his party not to get involved in pushing endorsements or campaigns. “I’d rather have a fair judge from the other party than a partisan judge from my own,” he added.

Bill Cooper, chairman of the TCF Corp. and a former Republican Party chairman who has helped lead the court challenge since 1997 and who spent about $100,000 to help Wersal’s cause, cheered the ruling. He offered this acerbic analysis: “How shocking! The courts said that somebody running for election can say what they think. The Founding Fathers will roll over in their graves.”

Cooper said that the decision was not necessarily a victory for conservatives or Republicans and that the court’s decision wasn’t his goal in the first place. “I was worried that if they could put restrictions on judicial elections, it could happen for other offices,” he said.

Wersal said Tuesday’s ruling completed what his lawsuits set out to do. “I think every issue we’ve raised, we won,” he said. “I’m especially savoring these moments.”

Observers in both parties noted that in the last two election cycles, following Wersal’s partial court victories that partly opened up the process, there were almost no dramatic or controversial contests. As usual, almost all judicial incumbents won. Republicans endorsed a candidate for a rare open seat in southern Minnesota in 2002, but that candidate lost.

The next round of judicial elections in Minnesota will come in November 2006.

Karen Cole, co-chairwoman of the Minnesota Women Lawyers Voter Outreach Committee, said that the organization was disappointed with the ruling and that it sees it as a big step backward for Minnesota. There is a strong concern in the legal community about politicizing the judiciary, she said.