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High court set to hear challenge to rules on judicial candidates' speech

By The Associated Press

03.25.02

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When Greg Wersal finally gets his day in front of the U.S. Supreme Court, he doesn't expect to be dragging a ball-and-chain prop or toting a cardboard cow.

Those are two of the stunts the Minnesota lawyer has used in his effort to highlight government restrictions on what candidates for the Minnesota Supreme Court can say.

Wersal, a former candidate, is trying a more conventional route this time — a constitutional challenge.

"Just the idea that I'm getting there before the Supreme Court is a validation that there is a problem," said Wersal, 46, a Republican. His issue is on the high court docket tomorrow.

Minnesota is one of more than 30 states in which judges are elected, and one of nine that prohibit judicial candidates from announcing their views on "disputed legal or political issues." Because so many states elect judges, the court's ruling could have broad national implications.

The Minnesota Supreme Court adopted the ban as part of the state Code of Judicial Conduct, arguing it is necessary to preserve the impartiality and independence of the judicial branch.

Wersal and the Minnesota Republican Party argue that Minnesota's rule makes judicial elections a sham and violates free speech.

Wersal also argues that it gives incumbents a huge advantage, especially the Supreme Court justice he unsuccessfully challenged in 1998: Alan Page, a Hall of Fame defensive lineman who played for the Minnesota Vikings of the 1970s.

"He's got incredible name recognition," said Wersal. "If you can't talk about the issues, you don't have much of a chance — in fact you have no chance."

So in the 1998 campaign, Wersal carried around a ball-and-chain labeled "Canon 5" (the relevant section of the state code). In 2000, when he took on Justice James Gilbert, he campaigned with a plywood cow named Bessie. Attached to the cow was a cartoon caption that asked, "Got Wersal?"

"Voters know as much about my Bessie as they do about the incumbent judge," Wersal complained in one slogan. "Even the cows know that judicial elections are full of bull," he said in another.

He used these stunts, he said, because he couldn't tell voters why he was really running &151; that in his view, the court's decisions were too soft on crime.

"Courts are setting policy, and people need a say in that policy," said Wersal, a criminal defense lawyer.

Ed Cleary, director of the Lawyers Professional Responsibility Board, which is responsible for enforcing Canon 5, said candidates can still criticize a judge's decision, but can't inaccurately do so or promise to overturn a decision.

Cleary said when it comes to free speech, judicial elections are different from other elections.

"For us to treat them the same is to finally do away with both judicial impartiality and the public's perception of judicial impartiality," he said.

Yet groups including the American Civil Liberties Union and Ralph Nader's Public Citizen have filed briefs siding with Wersal, arguing the restrictions go too far. On the other side, the American Bar Association and eight states have filed briefs urging the court to uphold the rule.

Last year, the 8th U.S. Circuit Court of Appeals upheld the rule, but narrowed the restriction only to issues that would likely come before the court.

In its Supreme Court brief, the state GOP argued those are the very issues voters want to hear candidates discuss.

Both Page and Gilbert, the justices Wersal ran against, declined interview requests, but Page addressed the legal dispute in a National Press Club speech last year.

"By declaring their positions in advance, aren't judicial candidates really signaling to voters their inability to faithfully execute the duties of the office?" asked Page.

Former state Supreme Court Justice Sandy Keith, who was chief justice for most of the 1990s, said Wersal "is doing a great disservice to this state."

"I understand partisan politics," said Keith, 73, a former Democratic state senator and lieutenant governor. "I understand how different judging is, and how important it is to have an independent judiciary."

Update

High court skeptical of restrictions on judicial candidates' speech
Analysis Justices seem to view Minnesota rule alternately as too vague, unclear, restrictive or irrational to withstand challenge under the First Amendment.  03.27.02

Previous

Supreme Court to decide if states can restrict judicial candidates' speech
Analysis Case juxtaposes two deeply held values: First Amendment protection for political speech, integrity of judicial process.  12.04.01

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

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