Wersal v. Sexton

674 F.3d 1010

Gregory WERSAL, Appellant,

v.Patrick D. SEXTON, in his official capacity as Chair of the Minnesota Board of Judicial Standards; William J. Egan, in his official capacity as a Member of the Minnesota Board of Judicial Standards; Douglas A. Fuller, in his official capacity as a Member of the Minnesota Board of Judicial Standards; Jon M. Hopeman, in his official capacity as a Member of the Minnesota Board of Judicial Standards; Cynthia Jepsen, in her official capacity as a Member of the Minnesota Board of Judicial Standards; E. Anne McKinsey, in her official capacity as a Member of the Minnesota Board of Judicial Standards; Gary Pagliaccetti, in his official capacity as a Member of the Minnesota Board of Judicial Standards; James Dehn, in his official capacity as Member of the Minnesota Board of Judicial Standards; Kent A. Gernarder, in his official capacity as Chair of the Minnesota Lawyers Professional Responsibility Board; Vincent A. Thomas, in his official capacity as Vice Chair of the Minnesota Lawyers Professional Responsibility Board; Kathleen Clarke Anderson, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Mark R. Anway, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Robert B. Bauer, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Joseph V. Ferguson, III, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Wood R. Foster, Jr., in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Susan C. Goldstein, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Sherri D. Hawley, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Lynn J. Hummel, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Geri L. Krueger, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Ann E. Mass, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Mary L. Medved, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; David A. Sasseville, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Debbie Toberman, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Dianne A. Ward, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Stuart T. Williams, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Jan M. Zender, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; William P. Donohue, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Marne Gibbs Hicke, in her official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Richard H. Kyle, Jr., in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Michael W. Unger, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Daniel R. Wexler, in his official capacity as a Member of the Minnesota Lawyers Professional Responsibility Board; Randy R. Staver, in his official capacity as a Member of the Minnesota Board of Judicial Standards; Honorable Terri Stoneburner, in her official capacity as a Member of the Minnesota Board of Judicial Standards, Appellees.

No. 09–1578.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 10, 2011.Filed: March 27, 2012.

James Bopp, Jr., argued, Anita Y. Woudenberg, Josiah Neeley, on the brief, Terre Haute, IN, for appellant.

Steven Michael Gunn, AAG, argued, Thomas C. Vasaly, AAG, on the brief, St. Paul, MN, for appellees.

Before RILEY, Chief Judge, and WOLLMAN, BEAM, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

BYE, Circuit Judge, with whom MURPHY, MELLOY, SMITH, and SHEPHERD, Circuit Judges, join.

Gregory Wersal, a candidate for Justice of the Minnesota Supreme Court, filed an action challenging three provisions of the Minnesota Code of Judicial Conduct—the “endorsement,” “personal solicitation,” and “solicitation for a political organization or candidate” clauses—as unconstitutionally infringing on the First Amendment rights of judicial candidates. After the parties filed cross-motions for summary judgment, the district court ¹ denied Wersal's motion and granted summary judgment in favor of the members of the Minnesota Board of Judicial Standards and the Minnesota Lawyers Professional Responsibility Board. On appeal, a divided panel of this court reversed, Wersal v. Sexton, 613 F.3d 821 (8th Cir.2010), concluding the clauses failed strict scrutiny. We granted the Appellee's petition for en banc review, and we now affirm the district court's decision upholding the constitutionality of the challenged clauses.

I

A. Wersal's Previous Bids for a Seat on the Minnesota Supreme Court

Since its inception, Minnesota has utilized popular elections to select the judges of its courts. Minn. Const. art. 6, § 7. To govern these elections, the Minnesota Supreme Court promulgated certain restrictions contained in the Minnesota Code of Judicial Conduct (“Code”). Over the years, Gregory Wersal has challenged particular prohibitions of the Code in connection with his bids for various seats on the Minnesota Supreme Court, which has resulted in two cases lying at the genesis of the instant matter.

In 1996, Wersal ran for a seat as an associate justice. At the time, he sought the endorsement of the Republican Party of Minnesota, attended and spoke at party gatherings, and solicited campaign contributions. As a result of these activities, ethical complaints were filed with the Minnesota Lawyers Professional Responsibility Board, alleging Wersal had violated the Code by stating his views on disputed legal and political issues and seeking the endorsement of a political party. While the complaints were ultimately dismissed, Wersal withdrew as a candidate from the race.

In his second bid for a seat on the court in 1998, Wersal again spoke at political conventions and sought the Minnesota Republican Party's endorsement. That year, Wersal sought an advisory opinion from the Minnesota Office of Lawyers Professional Responsibility, asking whether he would be subject to ethical violations for speaking at party gatherings, seeking the party's endorsement, and announcing his views on disputed issues. Wersal, along with others, subsequently filed suit seeking to invalidate the relevant provisions of the Code as violative of his First Amendment rights. Although the district court and this court both upheld the validity of the challenged clauses, Republican Party of Minn. v. Kelly, 247 F.3d 854 (8th Cir.2001), the Supreme Court granted certiorari on the issue of whether the announce clause violated the First Amendment, and reversed. Republican Party of Minn. v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ( White I ).

B. The Supreme Court's Decision in White I

In White I, the Supreme Court considered the constitutionality of the announce clause, which stated a candidate for judicial office “shall not ‘announce his or her views on disputed legal or political issues.’ ” 536 U.S. at 768, 122 S.Ct. 2528 (quoting Minn.Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000)). Because the clause was content-based, the Court examined it under strict scrutiny, asking whether the State met its burden to show the clause was “(1) narrowly tailored, to serve (2) a compelling state interest.” White I, 536 U.S. at 774–75, 122 S.Ct. 2528. The State offered two interests, both of which this court previously recognized as compelling: “preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary.” Id. at 775, 122 S.Ct. 2528. In examining the asserted interests, the Court explored three potential definitions of “impartiality.” Id.

The first possible meaning of “impartiality,” identified by the Court as the word's “root meaning,” is “the lack of bias for or against either party to the proceeding,” which “guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.” Id. at 775–76, 122 S.Ct. 2528 (emphasis in original). The Court concluded the announce clause was not narrowly tailored to serve the asserted interests in this sense because “it does not restrict speech for or against particular parties, but rather speech for or against particular issues.” Id. at 776, 122 S.Ct. 2528 (emphasis in original).

The second meaning of “impartiality” recognized by the Court is a “lack of preconception in favor of or against a particular legal view.” Id. at 777, 122 S.Ct. 2528 (emphasis in original). This uncommon use of the word could not be a compelling interest, the Court resolved, because a judge's lack of predisposition on legal issues “has never been thought a necessary component of equal justice[.]” Id. The Court further reasoned it would actually be undesirable to have judges who did not have preconceived views on legal issues, because this lack of introspection indicates a lack of qualification for the position. Id. at 778, 122 S.Ct. 2528.

Finally, the Court discussed a third possible meaning of “impartiality,” which it described as “open-mindedness,” whereby a judge remains willing to consider views contrary to his or her preconceptions and remain open to persuasion. Id. The Court found the announce clause unsupported by this asserted purpose:

In Minnesota, a candidate for judicial office may not say “I think it...