Wersal v. Sexton

• Decision Date: 15 October 2010
• Docket Number: No. 09-1578.,09-1578.
• Citation: 613 F.3d 821
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

613 F.3d 821

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: Dec. 16, 2009.

Filed: July 29, 2010.

Rehearing En Banc Granted Oct. 15, 2010.

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

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

Before BYE, BEAM, and COLLOTON, Circuit Judges.

BEAM, Circuit Judge.

This case presents the question of whether three provisions of the Minnesota Code of Judicial Conduct (Code) unconstitutionally infringe upon First Amendment rights of judicial candidates. Gregory Wersal, a candidate for Justice of the Minnesota Supreme Court, asserts that the so called “endorsement,” “personal solicitation,” and “solicitation for a political organization or candidate” clauses of Canon 4 ¹ are unconstitutional on their face or as applied to him. On cross-motions for summary judgment, the district court rejected Wersal's First Amendment claims and granted summary judgment to the appellees-members of the Minnesota Board of Judicial Standards and the Minnesota Lawyers Professional Responsibility Board. Wersal appeals, and we reverse.

I. BACKGROUND

This case has its roots in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ( White I ), and this court's prior en banc decision, Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir.2005) (en banc) ( White II ). In those opinions, Wersal, among others, successfully challenged the so called “announce,” “partisan-activities,” and “solicitation” clauses of Canon 5 on First Amendment grounds. White I, 536 U.S. at 788, 122 S.Ct. 2528 (announce clause); White II, 416 F.3d at 766 (partisan-activities and solicitation clauses). In an effort to bring the Code into compliance with the White decisions, the Minnesota Supreme Court removed the “announce” and “partisan-activities” clauses from the Code and amended the “solicitation clause.” Wersal now maintains that the amendments to the solicitation clause do not cure its invasion of his First Amendment rights, and that the endorsement clause improperly restricts expression protected by the First Amendment.

The endorsement clause-Canon 4.1(A)(3)-and the solicitation clauses-Canon 4.1(A)(4) and (6)-each rein in a judicial candidate's ² speech. ³ The endorsement clause prevents a judicial candidate from “publicly endors[ing] or, except for the judge or candidate's opponent, publicly oppos[ing] another candidate for public office.” 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(3). The personal solicitation clause prohibits a judicial candidate from “personally solicit [ing] or accept[ing] campaign contributions,” id. at 4.1(A)(6), and the solicitation for a political organization or candidate clause provides that a judicial candidate shall not “solicit funds for a political organization or a candidate for public office,” id. at 4.1(A)(4)(a). ⁴

The facts of this case indicate the degree to which these particular provisions have chilled Wersal's speech. In early 2007, Wersal announced his intention to run for the office of Chief Justice of the Minnesota Supreme Court. As part of his campaign, Wersal wanted to publicly endorse certain other candidates for public office. Specifically, he desired to support Tim Tinglested, candidate for Associate Justice of the Minnesota Supreme Court, Glen Jacobsen, candidate for Minnesota District Court Judge, and Michele Bachmann, candidate for United States Congress. However, the endorsement clause prevented Wersal from engaging in any such public endorsement of these candidates.

Moreover, Wersal wanted to personally solicit funds for his 2008 campaign from non-attorneys by going door-to-door and by making personal phone calls asking for financial support although he pledged (and continues to pledge) to recuse himself from any case in which a known contributor is or becomes a party. However, the personal solicitation clause specifically barred him from engaging in such activity, and Wersal felt that the solicitation for a political organization or candidate clause further constrained his efforts in seeking financial contributions from non-attorneys. Accordingly, Wersal believed that he could not wage an effective campaign as long as the endorsement and solicitation clauses remained in force. He, therefore, asked for injunctive and declaratory relief in the district court. After it became apparent that Wersal would not be able to get adequate relief prior to the 2008 campaign, he decided not to run for the Minnesota Supreme Court in 2008, but to instead run for the Minnesota Supreme Court during the 2010 elections. ⁵ In furtherance of his 2010 campaign, Wersal wishes to engage in conduct parallel to that which he sought to engage during the 2008 campaign. However, just as in 2008, Wersal continues to feel limited by the contested clauses.

In granting the appellees' motion for summary judgment, the district court held (1) Wersal's challenge to the solicitation for political organization or candidate clause was not ripe; and (2) the endorsement and personal solicitation clauses were narrowly tailored to meet the state's legitimate interest in protecting judicial impartiality.

II. DISCUSSIONA. Judicial Selection and Political Speech

Minnesota chooses to elect the judges of its courts. Minn. Const. art. 6, § 7. While we have confessed “some bias in favor of a system for the appointment of judges,” the sovereignty of the states within our federal system guarantees that “Minnesota may choose (and has repeatedly chosen) to elect its appellate judges.” White II, 416 F.3d at 746, 747. But “[i]f Minnesota sees fit to elect its judges, which it does, it must do so using a process that passes constitutional muster.” Id. at 748.

Minnesota has enacted Canon 4 of the Code in an effort to regulate judicial elections. In White I, the Supreme Court held the announce clause, which prohibited judicial candidates from stating their views on disputed legal issues, unconstitutional. In White II, an en banc court of this circuit held the...