Minnesota Republicans challenge judicial candidates’ speech restrictions

Thursday, February 26, 1998

ST. PAUL (AP) – The Republican Party of Minnesota is taking on state Supreme Court rules that prohibit judicial candidates from attending political meetings or publicly discussing issues.

A suit seeking immediate injunctive relief was to be filed Feb. 27 in federal court, state GOP Chairman Bill Cooper said Wednesday.

“We, as citizens of Minnesota, have a right to know the political and judicial positions of candidates for judicial office,” Cooper said. “Even a candidate for judge has constitutional rights of free speech that must be protected.”

This is occurring as three liberal Supreme Court justices — Sandra Gardebring, Alan Page and Esther Tomljanovich — face re-election campaigns this fall.

The GOP is seeking to overturn some longstanding restrictions as well as several new ones imposed by the high court on Jan. 1.

But De Paul Willette, executive secretary of the state Board on Judicial Standards, defended the rules as necessary to preserve Minnesota’s tradition of a nonpartisan judiciary.

“This is a wonderful tool to destroy what we have prized so highly,” he said. “They seem to be saying, `We don’t want an independent judiciary; we want a judiciary that subscribes to our point of view.’ That’s what’s so dangerous about the political endorsement process.”

Greg Wersal, a St. Louis Park lawyer who wants to run for the Supreme Court this year with Republican endorsement, had asked Gardebring, Page and Tomljanovich — each a potential election opponent — to remove themselves from consideration of the new rules. All three declined to do so or explain why.

Among other things, the new rules prohibit judicial candidates from seeking, accepting or using political party endorsements or from personally soliciting campaign contributions.

“They had a definite interest in changing the rules of the game,” Wersal said of the three justices.

GOP activists are upset with the rules because they apply to political parties but not to lawyers organizations (which are major contributors to many judicial campaigns), unions and special interest groups such as the National Rifle Association, the National Organization for Women and Minnesota Citizens Concerned for Life.

Edward Cleary, director of the state Office of Lawyers Professional Responsibility, said he regards the code’s longtime ban on judicial candidates’ stating their views as unconstitutional and unenforceable.

Identical language has been struck down as an infringement on free speech by U.S. district courts in several other states since 1990, when the American Bar Association revised its model code of judicial conduct. The new model code prohibits “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.”

Wersal said the ABA language would allow judicial candidates to campaign effectively and draw distinctions with their opponents.

Otherwise, Cooper said, “it simply won’t be a fair fight.” The court’s rules, he added, make it impossible for a challenger to invite debate from a sitting judge.