Republican Party of Minnesota v. White

• Decision Date: 16 March 2004
• Docket Number: No. 99-4021.,No. 99-4029.,No. 99-4025.,99-4021.,99-4025.,99-4029.
• Citation: 361 F.3d 1035
• Parties: 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 of Judicial Standards, or her successor; Edward J. Cleary, 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, Amicus on Behalf of Appellee. 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 of Judicial Standards, or her successor; Edward J. Cleary, 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. 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 of Judicial Standards, or her successor; Edward J. Cleary, 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 Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1035

361 F.3d 1035

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 of Judicial Standards, or her successor; Edward J. Cleary, 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, Amicus on Behalf of Appellee.

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 of Judicial Standards, or her successor; Edward J. Cleary, 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.

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 of Judicial Standards, or her successor; Edward J. Cleary, 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 Appellants.

No. 99-4021.

No. 99-4025.

No. 99-4029.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2002.

Filed: March 16, 2004.

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James Bopp, argued, Terre Haute, IN (William F. Mohrman, Minneapolis, MN of counsel), for appellant.

Alan I. Gilbert, argued, St. Paul, MN, for appellees.

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

In Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Supreme Court reversed the grant of summary judgment against Gregory Wersal and the other plaintiffs in this suit on their claim that the "announce" clause of Canon 5 of the Minnesota Code of Judicial Conduct violated their First Amendment rights. The Supreme Court remanded to us for further proceedings consistent with its opinion. Id. at 788, 122 S.Ct. 2528. We conclude that the Supreme Court's opinion requires us to remand to the district court for entry of judgment in favor of Wersal and the other plaintiffs on their "announce" clause claim. We remand to the district court for consideration of whether its disposition of the plaintiffs' claims based on restriction of partisan activities is consistent with the Supreme Court's opinion. Finally, we remand to the district court for entry of judgment in favor of Suzanne White and the other defendants on plaintiffs' personal solicitation clause claim.

We stated the facts of this case in our earlier opinion, Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir.2001), and need not belabor them here, except to say that Wersal was a candidate for election to the Minnesota Supreme Court, who challenged several provisions of Canon 5. Canon 5 prohibits candidates for judicial office from announcing their views on disputed legal and political issues, from engaging in specific partisan political activities, and from personally soliciting campaign contributions. Wersal, together with other plaintiffs associated with his campaign¹ and the state Republican party and affiliated organizations,² filed this suit against the Minnesota Lawyers Professional Responsibility Board³ and the Minnesota Board of Judicial Standards⁴ to enjoin enforcement of Canon 5. The district court granted summary judgment to the Lawyers Board and the Judicial Board, holding that each challenged provision of Canon 5 survived First Amendment scrutiny. Republican Party of Minn. v. Kelly, 63 F.Supp.2d 967 (D.Minn.1999). Wersal and the other plaintiffs appealed.

We affirmed the district court with regard to each of the challenged provisions of Canon 5. 247 F.3d at 885. We subjected the provisions of Canon 5 to strict scrutiny asking whether the restrictions were narrowly tailored to serve a compelling state interest. Id. at 864. We held that the state had compelling interests in protecting the independence and quality of its judiciary, and in preserving public confidence in the judiciary's independence. Id. at 864-68. We held that the state had shown the required quantum of evidence that each of those interests was threatened by the practices that Canon 5 regulated. Id. at 868-72 (partisan activity restrictions); 876-81 (announce clause); 883-84 (solicitation restrictions). We then held that each of the challenged restrictions was narrowly tailored to serve the interests of judicial independence and quality. Id. at 872-76 (partisan activity restrictions); 881-83 (announce clause); 884-85 (solicitation restrictions).

Wersal and the other plaintiffs filed a petition for certiorari presenting three questions:

1. Whether the provision of the Minnesota Code of Judicial Conduct that prohibits a candidate for elective judicial office from "announc[ing] his or her views on disputed legal or political issues" unconstitutionally impinges on the freedom of speech as guaranteed by the First and Fourteenth Amendments to the United States Constitution.

2. Whether the severe burdens imposed by various provisions of the Minnesota Code of Judicial Conduct unconstitutionally impinge on the right of political parties to endorse candidates for elective judicial office in violation of the freedom of speech, freedom of association, and equal protection of law as guaranteed by the First and Fourteenth Amendments to the United States Constitution.

3. Whether the provision of the Minnesota Code of Judicial Conduct that forbids a candidate for elective judicial office from attending or speaking at any political party gathering-while permitting such a candidate to attend or speak at gatherings of all other organizations-unconstitutionally impinges on the freedom of speech, freedom of association, and equal protection of the law as guaranteed by the First and Fourteenth Amendments to the United States Constitution.

The petition did not include a question relating to the solicitation restrictions. The Supreme Court granted certiorari, limited to the first question presented, the challenge to the announce clause.

Justice Scalia's opinion for the Supreme Court asked first whether the Boards had identified a compelling state interest to be served by the announce clause. 536 U.S. at 775-84, 122 S.Ct. 2528. Justice Scalia considered the terms "judicial independence" and "impartiality" to be insufficiently refined, and he divined three distinct meanings for "impartiality." First, the "root meaning" of impartiality "is the lack of bias for or against either party to the proceeding." Id. at 775, 122 S.Ct. 2528 (emphasis in original). Although Justice Scalia implicitly approved this meaning of impartiality as a compelling state interest, he concluded that the announce clause was not narrowly tailored to serve that interest and in fact was "barely tailored to serve that interest at all, inasmuch as 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 possible meaning of impartiality was "lack of preconception in favor of or against a particular legal view." Id. at 777, 122 S.Ct. 2528 (emphasis in original). Justice Scalia not only rejected this concept as a compelling state interest, but he considered this sort of impartiality undesirable in a judge. Id. ("avoiding judicial preconceptions on legal issues is neither possible nor desirable"). As defined by Justice Scalia, this second meaning of impartiality refers...