March 27 (Reuters) - A Minnesota rule limiting the ability
of judicial candidates to personally solicit campaign funds does
not violate the First Amendment, a federal appeals court ruled
In a 7-5 en banc decision, the St. Louis-based U.S. Court of
Appeals for the 8th Circuit upheld the judicial code and
rejected the reasoning of a Minnesota Supreme Court candidate
who argued the provision limited his ability to raise campaign
"Minnesota's interest in preserving (judicial) impartiality,
defined as the lack of bias for or against a party to a
proceeding, is compelling," Judge Kermit Bye wrote for the
majority. The restriction on personal solicitations advances
that interest while also preventing the appearance of bias, the
The case marks the second time that Minnesota Supreme Court
candidate Gregory Wersal has challenged campaign fundraising
rules. Wersal, who has unsuccessfully run for the bench several
times, first sued to reverse Minnesota's total ban on personal
solicitations in 1998. During the appeals process, the 8th
Circuit agreed the ban should be revoked, which prompted the
Minnesota Supreme Court to pass a rule allowing candidates to
personally solicit money, but only from groups of 20 people or
Wersal then took on the revised rule, and returned to court
in 2008. In that case, he accused judges on the Minnesota
Supreme Court of crafting the new rule to protect their own
positions. Incumbent judges pursuing re-election hold events at
big law firms where they solicit donations from large groups of
lawyers and reap thousands of dollars, he said. Those types of
personal requests are permitted under the 20 people or more
rule. Meanwhile, the rule bars non-incumbents from going
door-to-door or making phone calls to raise funds.
But the 8th Circuit majority rejected Wersal's challenges to
the judicial code, finding the restrictions narrowly tailored to
prevent judicial bias.
Several judges in the 8th Circuit agreed with Wersal.
"Certain regulations have apparently created circumstances
leading to a mismatch in the ability of incumbents and
non-incumbents to raise campaign funds, the mother's milk of
electoral success," Judge Arlen Beam wrote in a dissent. He
noted that incumbent judges were able to raise around $207,000
in 2008 and 2010 Minnesota Supreme Court elections -- around
double what non-incumbents collected.
"In Minnesota, we haven't had an incumbent judge defeated in
an election in over 50 years. They have shut down the entire
election system," Wersal said.
He said he plans to appeal the case to the U.S. Supreme
Court and that a split among the federal circuit courts makes
the high court more likely to review the case. In 2010, the 6th
Circuit ruled in Carey v. Wolnitzek that Kentucky's judicial
solicitation rule violated candidates' free-speech rights.
In addition to the personal solicitation rule, Wersal also
challenged a judicial canon preventing candidates from endorsing
other political candidates for office. Wersal had wanted to
endorse then-congressional candidate Michelle Bachmann, among
others. The 8th Circuit also upheld that rule, finding that such
endorsements could cause judges to appear beholden to political
The Minnesota Attorney General's Office did not immediately
respond to a request for comment.
The case is Wersal v. Sexton et al, U.S. Court of Appeals
for the 8th Circuit, No. 09-1578.
For Wersal: James Bopp of The Bopp Law Firm.
For Sexton et al: Steven Gunn of the Minnesota Attorney
(Reporting By Terry Baynes)
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