Judging for Himself
Greg Wersal won't be at Target Center this weekend schmoozing, shaking hands, and asking 3,000 Republicans for their endorsement. He won't even be on the corner across the street from the state GOP convention, passing out fliers or lapel buttons advertising his candidacy for the state Supreme Court. If he--or, for that matter, any member of his immediate family or campaign committee--did that, Wersal contends, he could get into big trouble with an agency that has the power to discipline or disbar him. "I'm a political prisoner," he insists, his eyes serious behind thick, wire-rimmed glasses. "I can't speak about any substantive issues, can't talk to certain groups, and I can't attend certain functions. It's amazing that in a free, democratic society, there's a group of people who can't speak their minds."
His dilemma, Wersal says, is the result of the ancient and complex rules designed to insulate judicial elections from partisan politics. In Minnesota, state-court judges are generally appointed by the governor, and must run for re-election every four years. Those elections are governed by the state's Board of Judicial Conduct, which forbids candidates from speaking about controversial issues, attending political gatherings, or actively raising funds--in a word, says Wersal, from putting up a real fight for the office they seek. As a result, he says, voters are forced to vote blindly and incumbents are almost automatically re-elected. (In recent state history, only two sitting judges have lost their seats: Hennepin County's William Christensen and Ramsey County's John Sands.) "The people have been left out of the process," he charges. "[Officials] have an elitist attitude. They act as though the public can't decide who will make a good judge."
But like a good attorney, Wersal has found a way to challenge the law. Earlier this year he sued the state Board of Judicial Standards charging that its rules violate his First Amendment rights. When a district court turned back his case in March, he proceeded to the Minnesota Court of Appeals; in a separate action, the state Republican Party has also asked the U.S. Supreme Court to rule on the matter. Legal experts say Wersal's challenge could ultimately change Minnesota's political landscape--though not, some maintain, for the better. "It would be a real disaster for judicial elections," warns attorney Bruce Peterson, a former Hennepin County District Court candidate. "Parties will end up endorsing candidates on their political ideologies, and incumbents will try to appease party members rather than following the law. The whole idea is contrary to the notion of an independent judiciary."
Wersal says he always felt there was something wrong with Minnesota's judicial election system, but couldn't put his finger on it until 1996, when he studied the state's code of judicial conduct. Buried deep in a section called Canon Five, he found a clause according to which candidates could not "attend political gatherings" but were allowed to "speak to gatherings." To test what he considered a loophole, Wersal filed as a candidate for a state Supreme Court seat and began actively courting the major parties. Soon he was asked to speak at political meetings, both Democratic and Republican.
But the reception he got was anything but warm. "People would come up to me and say, 'What are you doing here? We don't want you here,'" he recalls, adding that at one GOP meeting a man in the audience stood up and shouted that he considered Wersal's conduct unethical and was going to formally complain about it.
Sure enough, on May 22, 1996, former Hennepin County Attorney Gary Flakne filed a complaint against Wersal with the state Lawyers Professional Responsibility Board. Citing the "ambiguity" of Canon Five, the board's director dismissed the complaint. But the Board of Judicial Standards, which had authored the code to begin with, got the last word: It rewrote Canon Five to prohibit candidates from attending any political functions or seeking party endorsements. Wersal's loophole had been plugged, and he pulled out of the Supreme Court race to attend to his law practice.
But now Wersal is back. In February, having filed once again as a Supreme Court candidate (this time challenging one of the court's most liberal members, Sandra Gardebring), he asked U.S. District Court Judge Michael Davis for an injunction to stop the boards of Judicial Standards and Lawyers Professional Responsibility from enforcing their rules. (Citing that litigation, officials at both boards declined to comment for this story.)
Davis denied the motion, and Wersal immediately took his case to the Eighth Circuit Court of Appeals, which isn't scheduled to hear the matter until this fall. And last week the state GOP asked the U.S. Supreme Court to stop the state boards from punishing Wersal should the party decide to endorse him this weekend. "We got involved because we didn't think [the anti-endorsement rule] was right," says Anthony Sutton, the party's executive director. "In order to make judges accountable, we need to know who these people are."
But Peterson, the lawyer who was defeated in his 1996 bid for a Hennepin County District Court seat by law clerk Janet Poston, says people already have a chance to get to know potential judges. "I didn't feel constrained by the rules," he argues. "What's important here are the candidates' qualifications. The nature of the position requires judges to set aside their own beliefs and follow the dictates of the law."
Instead of taking political positions, adds William Mitchell College of Law professor Doug Heidenreich, candidates should talk about their legal experience, educational background, civic involvement, and character. Heidenreich says that while he appreciates the "free-speech aspect" of Wersal's argument, restrictions are necessary to ensure judges are impartial and qualified. "Would it really be better for the public to know if a candidate favors lower taxes?" he asks. "The danger here is people voting for a judge for the wrong reasons."
"But that's already happening," rebuts Wersal. "Voters need more information than what they're getting if we expect them to make an informed decision."
Judicial objectivity, he adds, is a fantasy: "According to my perspective--and remember, I've been in front of nearly every judge in Hennepin, Anoka, and Ramsey County--personal bias always leaks in. The problem with the current system is that we don't know what those biases are."
Wersal's argument "has considerable merit," agrees University of Minnesota law professor Michael Stokes Paulson, who specializes in issues of lawyers' professional conduct. "First Amendment rights go with you, whether you're standing on a street corner or at a party meeting, and these rules clearly violate those rights." Paulson says that a variety of state and federal courts around the country have already deemed so-called "declare and announce" rules unconstitutional. Most states, he adds, are moving toward a code developed by the American Bar Association under which candidates can state their views but may not commit to deciding cases in a specific way. In the face of that trend, Paulson argues, Minnesota is "moving in the wrong direction."
While Wersal is disappointed that the court won't hear his case before this weekend's convention, his forced absence hasn't dampened his enthusiasm. "People have been frustrated with this system for a long time, but they haven't known how to fix it," he says. "During my last campaign, when I went around knocking on doors and talking about this issue, people got a taste of democracy." His voice drops conspiratorially. "Now they want more."
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