Republican Party of Minnesota v. Kelly

Page 854

247 F.3d 854 (8th Cir. 2001)

REPUBLICAN PARTY OF MINNESOTA, AN ASSOCIATION; INDIAN ASIAN AMERICAN REPUBLICANS OF MINNESOTA, AN ASSOCIATION; REPUBLICAN SENIORS, AN ASSOCIATION; YOUNG REPUBLICAN LEAGUE OF MINNESOTA, A MINNESOTA NONPROFIT CORPORATION; MINNESOTA COLLEGE REPUBLICANS, AN ASSOCIATION, PLAINTIFFS - APPELLANTS,

GREGORY F. WERSAL, INDIVIDUALLY, PLAINTIFF,

CHERYL L. WERSAL, INDIVIDUALLY; MARK E. WERSAL, INDIVIDUALLY; CORWIN C. HULBERT, INDIVIDUALLY, PLAINTIFFS - APPELLANTS, CAMPAIGN FOR JUSTICE, AN ASSOCIATION, PLAINTIFF, MINNESOTA AFRICAN AMERICAN REPUBLIC COUNCIL, AN ASSOCIATION, PLAINTIFF - APPELLANT, MUSLIM REPUBLICANS, AN ASSOCIATION; MICHAEL MAXIM, INDIVIDUALLY; KEVIN J. KOLOSKY, INDIVIDUALLY, PLAINTIFFS, v. VERNA KELLY, IN HER CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HER SUCCESSOR, DEFENDANT, BARRY M. LAZARUS, IN HIS CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HIS SUCCESSOR; EDWARD J. CLEARY, IN HIS CAPACITY AS DIRECTOR OF THE MINNESOTA OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY, OR HIS SUCCESSOR; CHARLES E. LUNDBERG, IN HIS CAPACITY AS CHAIR OF THE MINNESOTA LAWYERS PROFESSIONAL RESPONSIBILITY BOARD, OR HIS SUCCESSOR, DEFENDANTS - APPELLEES, MINNESOTA CIVIL LIBERTIES UNION, AMICUS ON BEHALF OF APPELLANTS, THE MINNESOTA STATE BAR ASSOCIATION, AMICUS ON BEHALF OF APPELLEE.

REPUBLICAN PARTY OF MINNESOTA, AN ASSOCIATION; INDIAN ASIAN AMERICAN REPUBLICANS OF MINNESOTA, AS ASSOCIATION; REPUBLICAN SENIORS, AN ASSOCIATION; YOUNG REPUBLICAN LEAGUE OF MINNESOTA, A MINNESOTA NONPROFIT CORPORATION; MINNESOTA COLLEGE REPUBLICANS, AN ASSOCIATION; MINNESOTA AFRICAN AMERICAN REPUBLIC COUNCIL, AN ASSOCIATION; CHERYL L. WERSAL, INDIVIDUALLY; MARK E. WERSAL, INDIVIDUALLY; CORWIN C. HULBERT, INDIVIDUALLY; GREGORY F. WERSAL, INDIVIDUALLY; CAMPAIGN FOR JUSTICE, AN ASSOCIATION; MUSLIM REPUBLICANS, AN ASSOCIATION, PLAINTIFFS, MICHAEL MAXIM, INDIVIDUALLY, PLAINTIFF - APPELLANT, KEVIN J. KOLOSKY, INDIVIDUALLY, PLAINTIFF, v. VERNA KELLY, IN HER CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HER SUCCESSOR, DEFENDANT, BARRY M. LAZARUS, IN HIS CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HIS SUCCESSOR; EDWARD J. CLEARY, IN HIS CAPACITY AS DIRECTOR OF THE MINNESOTA OFFICE OF

LAWYERS PROFESSIONAL RESPONSIBILITY, OR HIS SUCCESSOR; EDWARD J. CLEARY, IN HIS CAPACITY AS DIRECTOR OF THE MINNESOTA OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY, OR HIS SUCCESSOR; CHARLES E. LUNDBERG, IN HIS CAPACITY AS CHAIR OF THE MINNESOTA LAWYERS PROFESSIONAL RESPONSIBILITY BOARD, OR HIS SUCCESSOR, DEFENDANTS - APPELLEES,

THE MINNESOTA STATE BAR ASSOCIATION, AMICUS ON BEHALF OF APPELLEE.

REPUBLICAN PARTY OF MINNESOTA, AN ASSOCIATION; INDIAN ASIAN AMERICAN REPUBLICANS OF MINNESOTA, AN ASSOCIATION; REPUBLICAN SENIORS, AN ASSOCIATION; YOUNG REPUBLICAN LEAGUE OF MINNESOTA, A MINNESOTA NONPROFIT CORPORATION; MINNESOTA COLLEGE REPUBLICANS, AN ASSOCIATION, PLAINTIFFS,

GREGORY F. WERSAL, INDIVIDUALLY, PLAINTIFF - APPELLANT,

CHERYL L. WERSAL, INDIVIDUALLY; MARK E. WERSAL, INDIVIDUALLY; CORWIN C. HULBERT, INDIVIDUALLY; PLAINTIFFS, CAMPAIGN FOR JUSTICE, AN ASSOCIATION; PLAINTIFF - APPELLANT, MINNESOTA AFRICAN AMERICAN REPUBLIC COUNCIL, AN ASSOCIATION; MUSLIM REPUBLICANS, AN ASSOCIATION; MICHAEL MAXIM, INDIVIDUALLY; PLAINTIFFS, KEVIN J. KOLOSKY, INDIVIDUALLY, PLAINTIFF - APPELLANT, v. VERNA KELLY, IN HER CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HER SUCCESSOR; DEFENDANT, BARRY M. LAZARUS, IN HIS CAPACITY AS CHAIRPERSON OF THE MINNESOTA BOARD OF JUDICIAL STANDARDS, OR HIS SUCCESSOR; EDWARD J. CLEARY, IN HIS CAPACITY AS DIRECTOR OF THE MINNESOTA OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY, OR HIS SUCCESSOR; CHARLES E. LUNDBERG, IN HIS CAPACITY AS CHAIR OF THE MINNESOTA LAWYERS PROFESSIONAL RESPONSIBILITY BOARD, OR HIS SUCCESSOR, DEFENDANTS - APPELLEES, THE MINNESOTA STATE BAR ASSOCIATION, AMICUS ON BEHALF OF APPELLANTS.

Nos. 99-4021, 99-4025 and 99-4029

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: May 10, 2000

Filed: April 30, 2001

Appeals from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before McMILLIAN, John R. Gibson, and Beam, Circuit Judges.

John R. Gibson, Circuit Judge

The issue before us in this appeal is whether Canon 5 of the Minnesota Code of Judicial Conduct, a rule promulgated by the Supreme Court of Minnesota to deal with political activity deemed inappropriate to judicial office, violates the First and Fourteenth Amendments of the United States Constitution. Canon 5 restricts candidates for 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 candidates' behalf. The district court ¹ held that Canon 5's provisions, except for the restriction on candidates announcing their views on disputed legal and political issues, were narrowly tailored to serve a compelling state interest in maintaining the independence and impartiality of Minnesota's judiciary, did not offend equal protection, and were not impermissibly vague. Republican Party v. Kelly, 63 F. Supp. 2d 967, 974-83 (D. Minn. 1999). As to the "announce" clause, the court concluded that a broad reading of the clause would raise constitutional difficulties. The court construed the clause narrowly to uphold its constitutionality, however, predicting that the Minnesota Supreme Court would do the same. Id. at 983-86. We affirm.

I.

The Minnesota Constitution provides that judges "shall be elected by the voters from the area which they are to serve," and that their term of office shall be six years. Minn. Const. art. 6, 7. In 1912, the Minnesota General Assembly designated judicial elections as nonpartisan, meaning that party affiliation is not listed when candidates file for office, nor does it appear on the ballot. Act of June 19, 1912, ch. 2, 1912 Minn. Laws Spec. Sess. 4-6.

Ethical codes restricting the campaign conduct of judicial candidates have existed in Minnesota since at least 1950, when the Minnesota District Judges Association adopted by unanimous vote the ABA's Canons of Judicial Ethics (1924). In 1974, the Minnesota Supreme Court promulgated a code of judicial conduct that was based in large measure on the ABA's Model Code of Judicial Conduct (1972). Over the years, the Minnesota Supreme Court has revised its ethical rules, including those relating to a candidate's ability to attend and speak at political gatherings, to solicit campaign funds, and to discuss certain topics.

Gregory Wersal, a Minneapolis-area attorney and longtime member of the Republican Party of Minnesota, ran unsuccessfully for the office of Associate Justice of the Minnesota Supreme Court in 1996 and 1998. The year Wersal launched his first campaign, the Minnesota Supreme Court revised its code of judicial conduct. The court renumbered and reorganized the canons and made several substantive changes, bringing the code largely in line with the 1990 version of the ABA's Model Code of Judicial Conduct.

Wersal interpreted one revision to lift a twenty-two-year ban on judicial candidates speaking to partisan political gatherings. From 1974 until 1996, Canon 7 of the Minnesota Code of Judicial Conduct barred candidates and judicial incumbents from speaking at partisan political gatherings, but allowed them to accept invitations to speak on their own behalf to other groups. Canon 7(A)(2) (1974) (a judicial candidate or incumbent "may accept invitations to attend and speak on his own behalf at other than partisan political gatherings"). It also prohibited judges from engaging in political activity except on behalf of measures to improve the law or the legal system. Canon 7(A)(4) (1974). In the 1996 revisions, the Minnesota Supreme Court reorganized and revised the subsections of Canon 7 and renumbered it as Canon 5. One subsection of the newly revised Canon 5 allowed candidates and judges to speak on their own behalf to gatherings generally, while another prohibited candidates and incumbents from attending political events. Canon (5)(A)(1)(a) & (d) (1996).

Consistent with his reading of the canon, Wersal, his wife Cheryl, and members of his campaign committee spoke at Republican Party gatherings as part of Wersal's 1996 bid for office. At these gatherings, they announced that Wersal was a member of the Republican Party and that he favored strict construction of the Constitution. They distributed campaign literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion as being "marked by their disregard for the Legislature and lack of common sense." In addition, the campaign committee sought unsuccessfully to obtain an endorsement by the Republican Party. ²

In May 1996, a delegate to a Republican district convention filed an ethical complaint against Wersal with the Office of Lawyers Professional Responsibility. The Office of Lawyers Professional Responsibility, under the direction of the Minnesota Lawyers Professional Responsibility Board (collectively, the Lawyers Board), investigates and prosecutes ethical violations of lawyer candidates for judicial office. The complainant questioned the propriety of Wersal's attendance at Republican gatherings, the campaign committee's solicitation of partisan support, and the campaign materials critical of Minnesota Supreme Court decisions. The Director of the Lawyers Board dismissed the complaint, concluding that no disciplinary action was warranted under Canon 5.

In the Director's written determination, she first noted that it was unclear whether the Minnesota Supreme Court had...