Republican Party of Minnesota v. White

416 F.3d 738

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. Suzanne WHITE, in her capacity as Chairperson of the Minnesota Board on Judicial Standards, or her successor; Kenneth L. Jorgensen, 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 Appellant, The Minnesota State Bar Association; The Conference of Chief Justices; The Missouri Bar; The Brennan Center for Justice at NYU School of Law; Campaigns for People; Citizen Action/Illinois; Conference of Ad Hoc Committee of Former Justices and Friends; State of Arkansas; Arkansas Supreme Court, Amici on Behalf of Appellees.

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; 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. Suzanne White, in her capacity as Chairperson of the Minnesota Board on Judicial Standards, or her successor; Kenneth L. Jorgensen, 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, The Conference of Chief Justices; The Missouri Bar; The Brennan Center for Justice at NYU School of Law; Campaigns for People; Citizen Action/Illinois; Conference of Ad Hoc Committee of Former Justices and Friends; State of Arkansas; Arkansas Supreme Court, Amici on Behalf of Appellees.

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. Suzanne White, in her capacity as Chairperson of the Minnesota Board on Judicial Standards, or her successor; Kenneth L. Jorgensen, 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 Appellees, The Conference of Chief Justices; The Missouri Bar; The Brennan Center for Justice at NYU School of Law; Campaigns for People; Citizen Action/Illinois; Conference of Ad Hoc Committee of Former Justices and Friends; State of Arkansas; Arkansas Supreme Court, Amici on Behalf of Appellees.

No. 99-4021.

No. 99-4025.

No. 99-4029.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2004.

Filed: August 2, 2005.

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James Bopp, Jr., argued, Terre Haute, IN, for appellant.

Thomas Vasaly, AAG, argued, St. Paul, MN, for appellee.

Before LOKEN, Chief Judge, McMILLIAN, JOHN R. GIBSON, WOLLMAN, BEAM, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, en banc.

BEAM, Circuit Judge.

This case is before us en banc upon remand from the United States Supreme Court. We briefly outline what has occurred in this matter since its inception, believing that it will be helpful in analyzing the issues presented.

The dispute commenced in the United States District Court for the District of Minnesota. At issue were the so called "announce," "partisan-activities," and "solicitation" clauses of Canon 5 of the Minnesota Supreme Court's canons of judicial conduct. The district court rejected Appellants' First and Fourteenth Amendment claims, Republican Party of Minn. v. Kelly, 63 F.Supp.2d 967 (D.Minn.1999), and granted summary judgment to Appellees: the Minnesota Board on Judicial Standards, the Minnesota Lawyers Professional Responsibility Board, and the Minnesota Office of Lawyers Professional Responsibility. Id. at 986. On appeal, a divided panel of this court affirmed the district court. Republican Party of Minn. v. Kelly, 247 F.3d 854 (8th Cir.2001). We denied Appellants' en banc suggestion. The Supreme Court granted certiorari and held, Republican Party of Minn. v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), that the announce clause violates the First Amendment, reversing our holding in Kelly. The Court remanded the case for further proceedings consistent with its opinion. Id. at 788, 122 S.Ct. 2528. Upon remand, the same panel, divided as before, again affirmed the district court's ruling on the solicitation clause and remanded for further consideration in light of White of the partisan-activities clause. Republican Party of Minn. v. White, 361 F.3d 1035 (8th Cir.2004) (vacated). We granted Appellants' request for en banc review, vacating the panel opinion. Today, we find that the partisan-activities and solicitation clauses also violate the First Amendment. Accordingly, we reverse the district court and remand the case with instructions to enter summary judgment in favor of Appellants.

The Supreme Court's remand requires us to consider two issues in light of White: the constitutional viability of the partisan-activities and solicitation clauses of Canon 5.¹

In doing so, we give no deference to earlier panel opinions.

[L]egal propositions which an appellate court settles on appeal ordinarily cannot be questioned again, . . . . A corollary to [this principle] is the rule that, upon a reversal and remand for further consistent proceedings, the case goes back . . . for a new determination of the issues presented as though they had not been determined before, pursuant to the legal principles enunciated in the appellate court's opinion, which must be taken as the law of the case.

Poletti v. C.I.R., 351 F.2d 345, 347 (8th Cir.1965). Thus, our task is to take the "legal principles enunciated in" White and apply them to the partisan-activities and solicitation clauses for a determination of these claims "as though they had not been determined before." Id. And that is what we have done.

I. BACKGROUND

Canon 5A(1) and 5B(1), the partisan-activities clause, and B(2), the solicitation clause, rein in the political speech and association of judicial candidates in Minnesota. The partisan-activities clause states, in relevant part:

Except as authorized in Section 5B(1), a judge or a candidate for election to judicial office shall not:

(a) identify themselves as members of a political organization, except as necessary to vote in an election;

. . . .

(d) attend political gatherings; or seek, accept or use endorsements from a political organization.

52 Minn.Stat. Ann., Code of Judicial Conduct, Canon 5, subd. A(1)(a), (d). Section 5B(1)(a) provides that "[a] judge or a candidate for election to judicial office may . . . speak to gatherings, other than political organization gatherings, on his or her own behalf."² Id. at subd. B(1)(a) (emphasis added). The solicitation clause states,

A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting campaign contributions and public support from lawyers, but shall not seek, accept or use political organization endorsements. Such committees shall not disclose to the candidate the identity of campaign contributors nor shall the committee disclose to the candidate the identity of those who were solicited for contribution or stated public support and refused such solicitation. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Id. at subd. B(2).³

The facts of this case demonstrate the extent to which these provisions chill, even kill, political speech and associational rights. In his 1996 bid for a seat as an associate...