Republican Party of Minnesota v. Kelly

63 F.Supp.2d 967

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; Gregory F. Wersal, individually; Cheryl L. Wersal, individually; Mark E. Wersal, individually; Corwin C. Hulbert, individually; Campaign for Justice, an association; Minnesota African American Republican Council, an association; Muslim Republicans, an association; Michael Maxim, individually; and Kevin J. Kolosky, individually, Plaintiffs, v. Verna KELLY, in her capacity as Chairperson of the Minnesota Board of Judicial Standards, or her successor, Charles E. Lundberg, in his capacity as Chair of the Minnesota Lawyers Professional Responsibility Board, or his successor; and Edward J. Cleary, in his capacity as Director of the Minnesota Office of Lawyers Professional Responsibility, or his successor, Defendants.

No. 98-831 MJD.

United States District Court, D. Minnesota.

September 13, 1999.

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Tony P. Trimble, Erick G. Kaardal, Trimble & Associates, Ltd., Minnetonka, MN, for and on behalf of Plaintiffs Republican Party of Minnesota, Minnesota African American Republican Council, Indian Asian American Republicans of Minnesota, Muslim Republicans, Republican Seniors of Minnesota, Young Republican League of Minnesota, Minnesota College Republicans, Cheryl L. Wersal, Mark E. Wersal and Corwin C. Hulbert.

Daniel G. Currell, Winthrop & Weinstine, P.A., St. Paul, MN, for and on behalf of Plaintiff Michael Maxim.

William F. Mohrman, Mohrman & Co., P.A., Colorado Springs, CO, for and on behalf of Plaintiff Gregory F. Wersal, Campaign for Justice and Kevin Kolosky.

Mark B. Levinger, Assistant Minnesota Attorney General for and on behalf of Defendant The Honorable Charles Flinn Jr., Chair of the Minnesota Board of Judicial Standards.

Thomas C. Vasaly, Assistant Minnesota Attorney General for and on behalf of Defendants Charles Lundberg, Chair of the Minnesota Lawyers Professional Responsibility Board and Edward Cleary, Director of the Minnesota Office of Lawyers Professional Responsibility Board.

Steven B. Young, Minnesota Civil Liberties Union as Amicus Curiae urging the Court to grant Plaintiffs' motions for summary judgment.

AMENDED MEMORANDUM OPINION AND ORDER

DAVIS, District Judge.

In this action, Plaintiffs seek declaratory and injunctive relief, enjoining the Minnesota Lawyers Professional Responsibility Board ("Lawyers Board"), the Minnesota Office of Lawyers Responsibility ("Office of Professional Responsibility") and the Minnesota Board of Judicial Standards ("Judicial Board") from enforcing sections of Canon 5 of the Code of Judicial Conduct (the "Judicial Codes"), which prohibits judicial candidates from engaging in certain conduct during judicial campaigns, on the basis that such prohibitions unconstitutionally infringe upon their rights of free speech, free association and equal protection guaranteed under the United States and Minnesota Constitutions. Plaintiffs also seek an award of reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 1988.

Background

1. The Parties

Plaintiff Gregory F. Wersal ("Wersal") is an attorney licensed to practice law within the state of Minnesota. Complaint ¶ 6. In 1996 and 1998, he was a judicial candidate for the position of Associate Justice of the Minnesota Supreme Court. Id. Wersal's campaign committee, Campaign for Justice, his wife, Cheryl L. Wersal, and brother, Mark Wersal are also named plaintiffs. Id. ¶¶ 7, 8 and 10. Plaintiff Corwin C. Hulbert is an unsolicited advocate of Wersal and his endorsement by the Republican Party and its Affiliated Associations. Id. ¶ 9. Finally, the Republican Party of Minnesota, together with its Affiliated Associations and their respective members, including Michael Maxim, are named plaintiffs (hereinafter referred to as the "Third Party Plaintiffs"). Id. ¶¶ 4 and 5.

The named defendants in this case are the Chair of the Lawyers Board, the Director of the Office of Professional Responsibility and the Chair of the Judicial Board. The Lawyers Board has general supervisory authority over the administration of the Office of Professional Responsibility and the Rules of Professional Responsibility and may issue opinions on questions of professional conduct. Rules on Lawyers Professional Responsibility, 4(c). The Director of the Office of Professional Responsibility and his office are the staff component of the Lawyers Board, whose function is to investigate and prosecute complaints against lawyers. Rules on Lawyers Professional Responsibility 6(a) and 8(a). Following an investigation, the Director determines whether or not discipline is warranted, and the type of discipline that is warranted. Id. Rules 8(d), 9(a) and 12(a). The Judicial Board has jurisdiction to receive complaints, investigate, conduct hearings and make recommendations to the Minnesota Supreme Court concerning judges alleged to have violated the Codes of Judicial Conduct. Rules of Board on Judicial Standards, 2(a).

2. The Judicial Codes

Judicial codes regulating the conduct of judicial candidates in judicial elections have been existence in Minnesota since at least 1950. Defendants' Lungberg and Cleary, Exs. 19 and 20. In the earlier version of the Judicial Codes, the Canons of Judicial Ethics, judicial candidates were instructed not to engage in making political speeches or from soliciting contributions or endorsements from political parties, because "it is inevitable that suspicion of being warped by political bias will attach to a judge who becomes an active promoter of the interests of one political party as against another." Id., Canon 28, Ex. 20, p. 53. A judicial candidate was also instructed not to "announce in advance his conclusions of law on disputed issues". Id., Canon 30, p. 54.

The Judicial Codes did become more specific over time. For example, the Codes of Judicial Conduct adopted in 1974 prohibited judicial candidates from the following: making speeches for a political organization, Canon 7(A)(1)(b) (1993), soliciting funds or making contributions to political organizations, or attending political gatherings, Canon 7(A)(1)(c), or engage in any other political activity except on behalf of measures to improve the law, the legal system, judicial administration or the administration of justice. Canon 7(A)(4). This set of Canons did allow a judicial candidate to "attend and speak on his or her own behalf at other than partisan political gatherings during the year in which the judge is a candidate for election or reelection." Canon 7(A)(2). Judicial candidates were also directed to maintain the dignity appropriate to judicial office and should encourage family, and employees or public officials subject to the candidate's control from doing what the candidate could not do. Canon 7(B)(1)(a) and (b) (1993). Also, judicial candidates were directed not to make pledges or to "announce his or her views on disputed legal or political issues". Canon 7(B)(c) (1993).

In 1995, the Judicial Codes addressing the regulation of judicial candidates were amended and are now addressed in Canon 5. Canon 5 was again amended on December 23, 1997, by adding language to clarify ambiguities that resulted from the 1995 amendments.¹ The Sections of Canon 5 relevant to this case, in its present form, are provided below, with the December 1997 amendments underscored:

A. In General.

Each justice of the supreme court and each court of appeals and district court judge is deemed to hold a separate nonpartisan office. MS 2048.06, Subd. 6.

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

(a) act as a leader or hold any office in a political organization; identify themselves as members of a political organization; except as necessary to vote in an election;

(b) publicly endorse or, except for the judge or candidate's opponent, publicly oppose another candidate for public office;

(c) make speeches on behalf of a political organization;

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

(e) solicit funds for or pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.

* * * * * *

(3) A candidate for a judicial office, including an incumbent judge:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage family members to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

(b) shall prohibit employees who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except as otherwise permitted by Section 5B(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

(d) shall not:

(1) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his or her views on disputed legal or political issues; or misrepresent his or her identity, qualifications, present position or other fact, or those of the opponent;

* * * * * *

B. (1) A judge or a candidate for election to judicial office may, except as prohibited by law,

(a) speak to gatherings, other than political organization gatherings, on his or her own behalf;

* * * * * *

(2) A candidate shall not personally solicit or accept campaign contributions or solicit publicly stated...