It was an analogy that made its point. “Burning the house to roast the pig” is how the 8th Circuit Court of Appeals referred to Minnesota’s Judicial Canon 5 restricting judicial candidates from affiliating with political parties. In the court’s view, Canon 5 went too far in restricting a candidate’s right to free speech to survive constitutional scrutiny.

In its August 2 decision in Republican Party v. White,¹ (“White II”), the 8th Circuit struck as unconstitutional the Canon 5 restrictions on partisan political activities as well as most of the solicitation provisions contained in our Code of Judicial Conduct. This decision, together with the U.S. Supreme Court’s decision in “White I”² means that candidates for judicial office in Minnesota are no longer precluded from announcing their views on political issues that may come before them as judges. Furthermore, candidates are no longer restricted in their ability to affiliate with or seek the endorsements of political parties or to raise funds through these groups.

An Unbiased, Independent Judiciary

Minn. Stat. §204B.06, Subd. 6 provides that each judge or justice of the Minnesota courts “is deemed to hold a separate nonpartisan office.” This law supported Minnesota’s tradition of nonpartisan judicial campaigns. I am not sure whether we will be able to maintain that tradition when our rules no longer preclude partisan political affiliation and fundraising through partisan groups.

The MSBA filed an amicus brief in support of the Judicial Code restrictions, as did the Conference of Chief Judges and others. The MSBA has a longstanding position supporting an independent and impartial judiciary. Indeed, promoting public awareness of the importance of an unbiased and independent judiciary is a priority of mine this year. We recognize that judicial candidates enjoy the same right to free speech as any other political candidate, but judges occupy a unique position that requires independence from politics and popular opinion.

The longstanding position of the MSBA is that judicial candidates should be evaluated solely on merit selection criteria directed to whether the candidate will be a fair and competent judge. While the 8th Circuit’s decision does recognize that an unbiased judiciary is an important and compelling interest (whew, that was close!), giving freer rein to candidates’ fundraising and partisan activity — the two main factors addressed by this decision — will not in my view produce a better system of electing judges.

The MSBA supported these restrictions because we have seen how money and politics have damaged the judiciary in other states. We favored some restrictions on judicial candidates’ campaign practices based on a concern that absent such constraints, big money and political parties would so influence judicial campaigns and the judges elected as to result in a biased judiciary that lacks independence from campaign contributors.

Character Is Key Qualification

I worry that big money or political parties will be perceived to corrupt our judicial elections, resulting in erosion of the public’s trust in judges and diminishment of public confidence that the courts will provide justice in every case. When that is a reality, the effectiveness of the judiciary as an independent branch of government will be in question.

So, what will happen in our next round of judicial campaigns? I wish I knew. One thing is certain, the MSBA will continue to encourage the public to vote for judicial candidates who exhibit the character and qualities needed to fulfill the duties of the position, including integrity and independence, professional competence, judicial temperament, willingness to devote hard work to public service, and the capacity to shoulder the responsibilities of judicial office. All citizens need to recognize that character, not political connections or the ability to raise money, is the key qualification for the role of judge.

The MSBA will also study the latest court opinions before developing a long-term strategy in response. Our analysis will include considering whether additional rules or changes in provisions of Canon 5 are appropriate, as well as whether — given constitutional constraints on restricting candidate activities — a quality judiciary can be better achieved through a system of appointment rather than election of judges. Two MSBA committees, the Judicial Elections Committee, chaired by Steve Besser and Mary Vasaly, and the Rules of Professional Conduct Committee, chaired by Lucinda Jesson, have already begun this analysis. I would like to thank those chairs for their leadership in this area.

The stage is set for partisan races funded by large donations from the war chests of candidates’ political supporters. I mean no disrespect when I say, “Let the games begin.” For those who think White II will have little or no effect on judicial races in Minnesota, I say there is potential for significant change. It is doubtful the plaintiffs in the White cases incurred over $1 million in fees to press their cause through the courts only to sit back and see nothing change. If the Pioneer Press accurately quoted Plaintiff Greg Wersal, he anticipates “major changes” in Minnesota’s judicial campaigns.3

I encourage you to read the opinions and form your own conclusions. Both White I and White II are available online. I hope you are willing to share your insights as the MSBA begins its analysis of the cases and our rules governing judicial conduct.

Notes

1. Republican Party of Minnesota v. White, No. 99-4021, ___ F.3d. ___ (8th Cir., 08/02/05.
2. Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
3. “Judges Can Get Parties’ Support; Federal Court Strikes Down State Election Rule,” St. Paul Pioneer Press at B-1 (08/03/05).

Susan M. Holden is president of the Minnesota State Bar Association. A partner and member of the board of directors of the Minneapolis personal injury firm of Sieben, Grose, Von Holtum & Carey, Ltd., she is certified as a civil trial specialist by the MSBA.