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August 2, 2005
A federal appeals court has issued a sweeping ruling that strikes down Minnesota's rules against judicial candidates participating in political party activities. The ruling stems from a challenge by Golden Valley attorney Greg Wersal, who earlier successfully challenged Minnesota's rule against judicial candidates speaking on political and legal issues.
St. Paul, Minn. — No one would have ever guessed that a slightly balding man, who stood on Minnesota street corners with a ball and chain five years ago, would nearly single-handledly change Minnesota's landscape of judicial campaign speech.
Greg Wersal, whose ball and chain symbolized Minnesota's rules that clamped down on judicial campaign speech and political party activities, has scored another legal victory.
A majority of the 8th Circuit Court of Appeals ruled Tuesday judicial candidates may now attend political party conventions, seek political party endorsement, and personally solicit campaign funds as long as the candidate doesn't know the donor's identity. The court said the rules prohibiting such activities violated free speech rights.
"We've had this going on for years and years and years, where people go to the polls and have no idea who those judicial candidates are and why we should vote for them. From now on, people will hopefully get the information they need," Wersal said.
Three years ago, Wersal won his case in the U.S. Supreme Court, which challenged Minnesota's rules against judicial candidates talking about political and legal issues. But Wersal and the Republican Party sought more, and won.
"The party has anticipated this, and has already changed our party constitution and bylaws," said Bill Walsh, a spokesman for the Republican Party of Minnesota. "We are ready to endorse judicial candidates under this system. So we don't have to do anything except start looking at candidates."
Critics, however, view the ruling with apprehension.
"I think it's a blow to the independent judiciary we have in Minnesota," said George Soule, who represented the state bar association in a friend-of-the-court brief opposing Wersal's position.
"I sure hope it doesn't turn our state into a Texas or an Illinois, where special interests and money and political parties dominate the judiciary," Soule said.
The American Judicature Society, a nonpartisan organization that promotes judicial independence, supported all of Minnesota's restraints on judicial speech. The society's Cynthia Gray says other states that already allow endorsed judicial elections and allow judges to solicit campaign contributions find the races tougher, rougher and more costly.
"Some of the states that have partisan elections with lots of campaign fundraising, the elections look bad and the judges look bad afterwards, unfortunately," Gray said.
Wendy Weiser, associate counsel at the Brennan Center for Justice at New York University Law School, says she's disappointed with the decision. She says she believes it will have ripple effect on other states that have similar rules.
Weiser says, however, that judicial candidates will show restraint even if the rules don't compel them to do so.
"This doesn't mean that judges can't voluntarily abide by these rules as principles of ethics," Weiser said. "And we sincerely hope that judges in Minnesota and the other states of the 8th Circuit, even if they're not required to by law, will respect these restrictions."
Greg Wersal, a past candidate for Minnesota's highest court, however, sees change looming on the judicial horizon for others and himself.
"I am interested in serving, I think, on a court. But I'm also hopeful that this means -- not just for myself -- that there are hundreds of other lawyers out there who over the years would've probably liked to have run for these positions but haven't. Hopefully a lot of people are going to get involved, and we'll have real elections," Wersal said.
Writing in dissent, Judge John Gibson said candidates endorsed by parties will find themselves indebted "to powerful and wide-reaching political organizations that can make or break them in each election."
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