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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Judicial Elections and Free Speech in 2018

Recent federal decisions show that reconciling the free speech rights of judicial candidates with judicial integrity is difficult yet essential. At the same time, since judicial campaign rules are narrowly drawn, they leave plenty of opportunity for very negative, well-funded judicial campaigns. This article traces the arc of relevant case law from the White case to the present day.

Judical candidates have now filed for election.1 Can their 1st Amendment rights be limited?

Fifteen years ago, Judge Richard Posner articulated a fundamental problem:

Two principles are in conflict and must, to the extent possible, be reconciled. Candidates for public office should be free to express their views on all matters of interest to the electorate. Judges should decide cases in accordance with law rather than with any express or implied commitments that they may have made to their campaign supporters or to others.2

Judge Posner’s formulation implies that judicial candidates may be subject to greater speech restrictions than political candidates. The U.S. Supreme Court, after declining to hold in 2002 that judicial candidates were different from political candidates, held in 2015 that they were. Recent federal decisions show that reconciling free speech rights with judicial integrity is difficult yet essential. At the same time, since judicial campaign rules are narrowly drawn, they leave plenty of opportunity for very negative, well-funded judicial campaigns. 

Does the Judicial Code undermine judicial elections?

In Republican Party of Minnesota v. White (“White I”) (2002), the U.S Supreme Court struck down Minnesota’s “announce clause,” which provided that a judicial candidate may not “announce his or her views on disputed legal or political issues.”3 Applying strict scrutiny, the Court found that the clause was underinclusive because it only applied during an election campaign. Justice Scalia, who wrote the opinion, believed that this underinclusivity showed that the underlying purpose of the announce clause was not judicial impartiality, “but the undermining of judicial elections.”4 

On remand, the 8th Circuit relied on the White I analysis to strike down Minnesota rules that prohibited partisan activities and limited solicitation of contributions.5 

Because of the White decisions, candidates may announce their views on disputed legal and political issues, attend political gatherings, and engage in other activities necessary to run a robust campaign. In fact, judicial races in other states show that state judicial codes have not prevented very politicized campaigns. There are more than a few reasons why challengers have not unseated more incumbents in Minnesota judicial elections, but the Judicial Code is not one of them.

From White to Yulee

Like the 8th Circuit, courts applied the reasoning in White I to invalidate various judicial campaign regulations. White I was seen by some as suggesting that the free speech standard for judicial elections should be the same as the standard for political elections.6 On the other hand, in Wersal v. Sexton (2012), the 8th Circuit upheld prohibitions on publicly endorsing or opposing other candidates and on personally soliciting contributions.7 

Then came the Supreme Court’s 2015 decision in Williams-Yulee v. Florida Bar.8 Yulee upheld a Florida rule prohibiting a judicial candidate from personal solicitations for contributions, including solicitations by mass mailing.9

Yulee was a clear departure from White I. Unlike White I, Yulee accepted that judges, even when elected, are different from politicians. Writing for the majority, Justice Roberts stated:

[A] State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.10

A plurality of the Court held that strict scrutiny required that Florida’s speech restrictions be narrowly tailored, but not “perfectly tailored.”11 Justice Scalia, now in the minority, argued that the Court had abandoned strict scrutiny.

Reconciling White I and Yulee

The 9th Circuit, relying heavily on Yulee, upheld Arizona’s limitations on partisan activities and personal solicitation in Wolfson v. Concannon.12 Like the 8th Circuit in Wersal v Sexton, the 9th Circuit distinguished announcing views, permitted under White I, from partisan activities, which may be restricted.

Interestingly, a concurrence in Wolfson, like the concurrence in Wersal v. Sexton, justified the partisan restrictions based not on the interest in judicial impartiality but on the interest in a structurally independent judiciary, driven by legal principles rather than political concerns. 

Parker and the restriction on public comment

This brings us to the recent decision concerning the Alabama “public comment” clause in Parker v. Judicial Inquiry Comm’n.13 

Justice Tom Parker appeared on a radio talk show14 during his campaign for reelection to the Alabama Supreme Court.  At the time, the Alabama court was considering whether Obergefell v. Hodges,15 in which the U.S. Supreme Court struck down Alabama’s laws excluding homosexual relationships from marriage, affected the Alabama court’s earlier decision against issuing marriage licenses to homosexual couples.

On the radio show, Judge Parker said, among other things, that “resisting [the Obergefell] decision could maybe sta[rt] a revival of what we need in this country to return to our original founding principles.”

The Alabama rule provides: “A judge should abstain from public comment about a pending or impending proceeding in any court…” The Alabama judicial commission initiated an investigation, and Justice Parker sued in federal court. The court found that Justice Parker’s comments could be prohibited, but also found that the rule was overbroad. The court preliminarily enjoined the commission from enforcing the rule to the extent that it proscribed public comment (1) regarding proceedings in courts outside of Alabama or (2) that could not reasonably be expected to affect the outcome or impair the fairness of a proceeding in Alabama. The injunction allows the commission to enforce the rule against a judge who publicly comments on a pending or impending proceeding in Alabama. Thus, unlike Yulee and Wolfson, which deferred to the states on just how far a regulation should extend, the Parker opinion engaged in line-drawing.

Alabama’s experience in Parker, like Minnesota’s experience in White, shows the risk of not following national trends. Prior to White I, the ABA removed the announce clause from its Model Code, replacing it with narrower language that could be better defended from constitutional attack.16 Minnesota, however, retained the announce clause, which the U.S. Supreme Court subsequently invalidated.

Similarly, based on concern that the public comment clause was overbroad, the ABA narrowed the clause, limiting the prohibition to public statements “that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court….”17 Alabama, however, retained the earlier version of the clause.

Unlike Alabama, Minnesota adopted the current ABA version of the public comment clause. At first, there was some disagreement about whether the Minnesota Judicial Board appreciated that the rule had been narrowed. See W. Wernz, “A Critique” and Minn. Bd. Jud. Standards, “Response,” in “Regulating Judges’ Public Comments.”18 In 2014, the Board officially stated that it was enforcing the current language of the rule and that anything to the contrary in the Board’s Bench & Bar article was superseded. 

A state is under no obligation to follow the ABA lead. However, if the ABA has narrowed a rule because of constitutional concerns, a state that has retained an older version of the rule may have to prove that its broader prohibition is necessary.19 

“Fleecing the voters”?

Harking back to White I’s negative assumptions about state motives, the Parker opinion states that the former Minnesota announce clause “allowed candidates to hide behind it to avoid voters learning of the candidates’ positions on matters of great public interest. The rule thus served as an official mechanism for intellectual fleecing of the voters.”20 The assumption, apparently, is that the powers that be have used speech restrictions to keep judges in office by keeping voters in the dark, and withholding the candidates’ positions from them is a form of swindle.

“[T]he candidates’ positions on matters of great public interest” is meaningful to the voters when the candidate states or implies how he or she would rule on a particular issue likely to come before the court.21 But as the Parker opinion acknowledges, “a state has a compelling interest in preventing a judge from improperly forecasting on how he or she will rule in a specific decision.”22 Judicial candidates should not be criticized for staying far afield from such forecasts.

Nominees to the U.S. Supreme Court routinely decline—due to professional ethics, personal propriety, or a desire to avoid controversy—to announce their views on disputed legal issues when they appear at Senate confirmation hearings.23 Justice Scalia told the Senate that if he “made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that[,] I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.”24 

In marked contrast, in 2010, one judicial candidate in Minnesota ran on the slogan, “If you do the crime, you should do the time.” It could be difficult to deliver on such a pledge. A defense attorney would probably file a removal notice or disqualification motion if faced with a judge who had run for office promising to incarcerate the attorney’s client.25 

“Fleecing the voters” is not declining to state how the candidate would rule “on matters of great public interest,” but making promises that the candidate cannot or should not fulfill.

Elections and money

The central problem with judicial elections is that the money needed for a campaign can undermine impartiality and public confidence in the judicial process. In 2009, the U.S. Supreme Court ruled that a judge whose campaign had been given $3 million by the CEO of a company that had a case before the court violated due process by not recusing himself from the case.26 

The ABA recommends that states adopt rules defining when campaign contributions should result in disqualification, but most states, including Minnesota, have not followed this recommendation. The Minnesota Judicial Code notes that campaign contributions could lead to disqualification but does not provide specific guidance.27 

Can’t we just dispense with judicial elections?

In her concurrence in White I, Justice O’Connor stated: “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”28 Although no judicial selection system has been problem-free, many observers favor the Missouri plan, which involves merit selection with re-appointment subject to a retention election with no opponent. With a few notable exceptions, far less money has been spent on retention election campaigns than on contested election campaigns.29 

In 2007, the Quie Commission recommended that Minnesota adopt a version of the Missouri plan. The MSBA supports this recommendation. However, the Quie recommendation has made little headway in recent years. In fact, in some states, the political winds have been blowing in the opposite direction. No state has adopted retention elections since 1976.30 

Is the Minnesota model contrary to the constitutional design?

In 1948, a Minnesota committee reported: “The usual practice has been that judges first ascend the bench by appointment by the governor on a vacancy occurring. The voters, with some exceptions, have on succeeding elections returned the judge to the bench.”31 What was once a common practice in many states continues to be the case in Minnesota. Judges typically leave office before the end of their terms, often because they have reached mandatory retirement age. This results in a mid-term vacancy and gubernatorial appointment of a successor.32 

Some have claimed that Minnesota selection practices are at odds with a constitutional preference for elections. To the contrary, the electorate has approved several amendments to the Minnesota Constitution that have increased the tendency toward gubernatorial appointment and re-election of the incumbent. For example, amendments in 1956 authorized the Legislature to provide for retirement of judges and increased the minimum time in which a gubernatorial appointee must first stand for election from 30 days to one year. In addition, the Legislature authorized a nonpartisan ballot in 1912, identification of the incumbent on the ballot in 1949, and a judicial selection commission in 1990. Even before these changes were adopted—in fact, ever since Minnesota became a state—Minnesota voters usually favored the incumbent in judicial elections. 

As it has evolved, the Minnesota system is not a pure elective system but a hybrid with aspects of a merit selection  / retention election system.33 The Minnesota Supreme Court has held that “neither election nor appointment of judges is preferred over the other—under the constitution each process has its place under different circumstances.”34 Whether one agrees or disagrees with the Minnesota system, it is fully consistent with the Minnesota Constitution. 

Merit selection and the governor

One reason that Minnesota has not experienced the nasty judicial campaigns seen in other states is that the state’s judiciary is well-qualified and not overtly partisan. Since most judges initially obtain office by gubernatorial appointment, selection based primarily on merit rather than politics is an important factor in avoiding politicized elections. 

Politics cannot be completely eliminated from any selection process. A more realistic goal is a process that reflects the participation of multiple interests and that has a degree of insulation from direct political influence. With that goal in mind, the Legislature created the Commission on Judicial Selection in 1990.35 Although governors are not required to choose district judges from the commission’s nominees, governors have almost always done so. And although governors are not required to use the commission for appellate appointments, governors often do. A judicial selection commission that represents diverse interests is more likely to nominate judges who are well-qualified and not champions of a narrow political, economic, or ideological interest.

Conclusion

Most of Minnesota’s judicial campaign rules are no longer vulnerable to constitutional attack. However, these rules are narrowly tailored to protect judicial impartiality, not to prevent negative judicial campaigns. Minnesota’s avoidance of negative campaigns in the past does not guarantee that the state will avoid them in the future. Just before the Deepwater Horizon exploded, BP executives traveled to the oil rig to celebrate its excellent safety record.

Unfortunately, there is no clear solution at hand. Judicial elections are here for now. But we should appreciate that the Minnesota judicial selection system has given the state a highly respected judiciary. Unless and until major structural change becomes a viable option, the most effective way to prevent negative campaigns is to select judges who are highly qualified and not identified with partisan interests.


THOMAS VASALY was executive secretary of the Minnesota Board on Judicial Standards from 2014 to 2017. Previously, as an Assistant Minnesota Attorney General, he was one of the attorneys for the state in the White and Wersal v. Sexton litigation. 


Notes

1 The filing period is May 22 to June 5, 2018. Minn. Stat. §§204B.09, subd. 1(a), 204D.03, subd. 1. 

2 Buckley v. Illinois Judicial Inquiry Bd., 997 F. 2d 224, 227 (7th Cir. 1993). 

3 Republican Party of Minnesota v. White (“White I”), 536 U.S. 765 (2002). The campaign rules are presently under Canon 4 of the Minnesota Code of Judicial Conduct, adopted by the Minnesota Supreme Court. The rules apply to lawyers who are judicial candidates as well as to incumbent judges.

4 536 U.S. at 782.

5 White II, 416 F.3d 738 (8th Cir. 2005) (en banc).

6 E.g., Weaver v. Bonner, 309 F.3d 1312, 1321 (11th Cir. 2002).

7 Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012) (en banc).

8 Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).

9 Such a solicitation by mass mailing was already permitted in Minnesota, thanks to the White II decision.

10 135 S. Ct. at 1662.

11 Id. at 1671.

12 Wolfson v. Concannon, 811 F.3d 1176 (9th Cir. 2016) (en banc).

13 Parker v. Judicial Inquiry Comm’n, No. 2:16-CV-442-WKW (M.D. Ala. 3/2/2018).

14 Focal Point, “the home of muscular Christianity on conservative talk radio.”

15 135 S. Ct. 2584 (2015).

16 White I, 536 U.S. at 773 n.5.

17 ABA Model Code Jud. Cond., R. 2.10(A) (asterisks omitted).

18 Bench & Bar of Minn. (May/June 2011) at 32.

19 Parker, slip op. at 28.

20 Slip op. at 23.

21 See White I, 536 U.S. at 773.

22 Parker, slip op. at 24.

23 White I, 536 U.S. at 783 n.11, 807 n.1.

24 Id. at 818-19, n.4.

25 Minn. R. Crim. P. 26.03, subd. 14(3), (4); Minn. Code Jud. Conduct 2.11(A)(4).

26 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009).

27 Rule 4.4, cmt. 3.

28 536 U.S. at 792.

29 J. Shugerman, The People’s Courts 253 (2002).

30 Id. at 286-87.

31 Judiciary Comm., Minn. Constitutional Comm’n, Preliminary Report on the Revision of the Judiciary Article of the Minnesota State Constitution, 32 Minn. L. Rev. 458, 466 (1948).

32 Minn. Const. Art. VI, Secs. 7, 8.

33 See Peterson v. Stafford, 490 N.W.2d 418, 425 (Minn. 1992).

34 Clark v. Ritchie, 787 N.W.2d 142, 147 (Minn. 2010).

35 Minn. Stat. §480B.01.

One Comment


  1. Marie A. Failinger
    Jun 04, 2018

    For another analysis about

    For those who are interested in further reading on whether judicial elections are a good thing, I might offer an old article I wrote, available on Mitchell Hamline’s open access site. Marie Failinger, “Can Good Judges Be Good Politician? Judicial Elections from a Virtue Ethics Approach” (2005). Faculty Scholarship. 349.
    https://open.mitchellhamline.edu/facsch/349 The article argues that it is only possible to determine whether judges are likely to be good judges if we understand the practice of judging and the end of justice toward which its aims, and that elections cannot help voters determine what qualities are necessary in judges and for what reasons. The article argues that traditional elections require virtues in politicians which are not often found in good (virtuous) judges, making them an unsuitable way of selecting candidates.

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