Eighth Circuit ruling is a win for Minnesota Courts

Last week, the U.S. Court of Appeals for the Eighth Circuit upheld three important pieces of Minnesota’s judicial ethics code that are designed to minimize the influence of partisan politics and campaign fundraising on the courts. 

In upholding the provisions, the Eighth Circuit underscored the importance of independent and impartial courts.  But the decision created a conflict with other Circuits which had struck down similar rules from other states.  This raises the possibility that the U.S. Supreme Court will now step in to resolve the circuit split — and give a definitive ruling on how much states can do to stop money and politics from influencing the courts.

A final ruling from the Supreme Court here would provide a clear answer to states grappling with what they can — and cannot — require from judicial candidates.  Minnesota’s rules prohibit judges and judicial candidates from endorsing candidates in other contested partisan or non-partisan elections; from soliciting contributions for other political candidates and organizations; and from personally asking for campaign contributions (including from lawyers and parties who could appear in the judges’ courtrooms).  In other states, federal courts have ruled that judicial candidates can’t be forbidden from such conduct.

Just as these rules have split federal courts, the challenge to Minnesota’s ethics rules sharply divided the Eighth Circuit.  After the federal trial court upheld the rules, a three-judge panel of the Circuit initially reversed and struck down the regulations.  The Eighth Circuit then voted to let the full court, sitting en banc, re-hear the case.  That rehearing produced what dissenting senior judge C. Arlen Beam called a “salmagundi” of jumbled opinions, four in total.  

Seven of the 12 judges hearing the case voted to uphold the ethics rules, though they did so for separate reasons.  Two judges said that the interest in judicial independence, and the need to keep the courts from excessive political entanglement with the other branches, justified the rules.  Five others reasoned that, in addition to Minnesota’s interest in courts that are impartial in fact, the state’s interest in maintaining public perceptions of an entirely impartial judiciary justified the rules.  Beam took particular issue with that last point in his dissent, arguing that issues of public perceptions of the courts can never justify rules that, in his eyes, impermissibly burden judicial candidates’ First Amendment rights.

It’s important for the Supreme Court to step in and resolve the issue that has divided the Eighth Circuit — and the federal courts of appeals more broadly.  A definitive ruling on how much leeway states have in adopting rules to protect courts from the influence of money and politics is sorely needed: as a series of  bi-annual reports on judicial election financing and conduct has documented time and again over the last dozen years, state judicial elections have recently become “noisier, nastier, and costlier,” and concerns about partisanship and campaign cash have mushroomed. 

In response to concerns that the politicization of judicial elections would cast doubt on the fairness and impartiality of their courts, states like Minnesota have fine-tuned their rules on judicial campaign speech and activity, seeking to balance the free speech rights of judicial candidates with Due Process concerns about fair and impartial courts.  Critics of the new rules like the plaintiff in the Eighth Circuit case, Minnesota Supreme Court hopeful Greg Wersal, contend that states like Minnesota have gone too far. 

Wersal previously challenged an older version of the state’s rules in Republican Party of Minnesota v. White, a 2002 case in which the U.S. Supreme Court ruled that states could not forbid judicial candidates from announcing their views on disputed political and legal issues.

Minnesota refined its judicial campaign rules in response to that ruling, but the changes weren’t enough to mollify Wersal.  Continuing his crusade in 2007, he filed the case that just split the Eighth Circuit.  There’s little doubt that in response to this latest setback, Wersal will keep pressing in hopes the Supreme Court will intervene. 

The Court should accept Wersal’s invitation, but it should side with the justices in the Eighth Circuit majority.  Doing so would turn back Wersal’s quest to transform judicial elections into wholly unregulated affairs in which control of the bench is auctioned off to the highest bidder.

As voters steel themselves for the onslaught of a Super PAC-funded advertising blitzkrieg in the upcoming 2012 elections — and as Super PAC electioneering puts judicial races in the cross-hairs — they can take at least some comfort in last week’s Eighth Circuit ruling.  It signals that, at least for the time being, states like Minnesota can continue implementing common-sense regulations designed to prevent judicial campaign excesses from threatening fair and impartial courts.  The Supreme Court should consider — and endorse — that view.