Bench Warrant

John Noltner

FOR THE PAST year, attorney Greg Wersal has been ruffling the robes of justice. Wersal, a judicial hopeful in the 1998 Minnesota Supreme Court elections, has broken a long-held taboo on seeking political-party endorsements. The Minnesota Board on Judicial Standards claims he's polluting the "purity" of the nonpartisan process, but Wersal says the judicial selection system has more to do with protecting incumbents than with the impartiality of the bench, and he's petitioned the Minnesota Supreme Court to intervene.

In an effort to make elections apolitical, Minnesota's forbid candidates from commenting on issues, contributing to political organizations or candidates, or endorsing individuals for other offices. In addition, candidates can't solicit contributions. Instead, campaign committees are supposed to act as the middleman between candidates and donors, ostensibly to shield judges from knowing who contributed to their campaign and how much.

But to Wersal and a number of other critics, this arrangement is disingenuous at best. "The average joe doesn't throw [money] into these races, but attorneys and big-business interests do," he says. "You think [judges] don't know who's buttering their bread?"

Indeed, a quick perusal of nearly any incumbent's financial records reads like a "Who's Who" of business and law. Justice Paul Anderson's '96 campaign-disclosure reports boast contributions from local Republican luminaries like H.B. Fuller chair Anthony Andersen, Carlson Co. founder Curt Carlson, and a slew of Medtronic bigwigs. While Anderson's $88,000 cache is impressive, Edward Stringer collected an unprecedented $125,000. Campaign records for Alan Page are peppered with the names of high-profile DFLers, and the justice has been photographed jogging with President Bill Clinton.

Plus, critics add, even though candidates don't run on a party ticket, the process is hardly apolitical. With the exception of Page, all of the current state Supreme Court justices are gubernatorial appointees. Former DFL Gov. Rudy Perpich appointed Esther Tomljanovich and Sandy Keith, later naming Keith chief justice. More recently, Gov. Arne Carlson has made six appointments, including James Gilbert, Carlson's former personal attorney and chief judicial recruiter. (Gilbert is the third screener awarded a seat in the last decade.)

On top of that, last year, insiders complained that the outcomes of several judicial races were influenced by an anti-abortion group. So the Judicial Standards Board rewrote portions of the Code of Judicial Conduct. While most of the revisions provided greater clarity as to permissible conduct, the board inadvertently nullified the prohibition on party endorsements. That's where Wersal enters the picture. "Changes to the code now allow judicial candidates to attend and or speak at political gatherings as long as it's for their own behalf," he notes. In other words, a would-be judge can attend a Republican or Democratic function, and appeal for "support."

But according to DePaul Willette, the board's executive secretary, Wersal is opening a Pandora's box of trouble. "If there's anything we've learned from races in other states," says Willette, "it's that money and its influence have a bad effect on judicial races." Consider Texas, he says, where a justice once raised $1.5 million for a re-election bid. "It's important for judges to maintain the appearance of propriety and impartiality," he says. "The '96 elections were a tremendous attack on the independence of the judiciary. And we want to stop people from pushing the envelope." To that end, the board not only wants the code's former wording reinstated, it also wants to prohibit candidates from knowing who their contributors are.

Although in general, the Minnesota State Bar Association agrees with the board, it would prefer to see the fundraising provisions loosened. "We think it's appropriate for judges to be able to make general appeals for financial support," says bar member David Herr. He notes that incumbents have always attended functions that are effectively fundraisers, and changing the code would reduce what he calls the "artificiality" of the process. "It's a bit hard to believe that candidates don't know who their contributors are." However, Herr adds, the bar adamantly opposes endorsements. "We don't want to turn them into partisan contests, so we discourage the labeling of candidates to a particular party affiliation."

Wersal has yet to gain the endorsement of any party, but the board and the bar are jumping on the issue anyway. The Supreme Court is scheduled to hear arguments on the issue today. If it adopts either the board's or bar's proposals, Wersal says he'll keep pushing. "I'll file an appeal," he vows, "and take this to federal district court."

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