PRESS RELEASE
Tuesday, September 25, 2001
Contact: James Bopp, Jr., General Counsel
Phone 812/232-2434; Fax 812/235-3685
jboppjr@abcs.com

The James Madison Center for Free Speech Files Petition
With U.S. Supreme Court to Review Eighth Circuit Decision
Upholding Bans on Judicial Candidates' Speech and Association

 
The James Madison Center for Free Speech yesterday filed a petition for writ of certiorari with the U.S. Supreme Court, asking the Court to review a 2-1 decision of the U.S. Court of Appeals for the Eighth Circuit, upheld a Minnesota canon of judicial ethics that places severe burdens on free speech and free association rights during the course of judicial campaigns for elective office.

In the case, Republican Party of Minnesota, et al. v. Kelly et al., the Supreme Court was asked to review three
questions. First, whether free speech rights were violated by a provision of the Minnesota canon that forbids a
judicial candidate from "announc[ing] his or her views on disputed legal or political issues." Second, whether
provisions of the canon that forbid a judicial candidate or a candidate's campaign committee "to solicit, accept or use" a political party endorsement violate the Constitution. Third, whether provisions of the canon that forbid the judicial candidate to attend political gatherings or to speak at political party gatherings contravene free speech, free association, and equal protection rights.

Under the Minnesota Constitution, as in the majority of states, all state judicial positions must be filled by popular election. The Minnesota rule was established when it became a state on the eve of the Civil War, and it was motivated in substantial part by demands for judicial accountability generated by the Dred Scott decision of the United States Supreme Court. Although Minnesota clearly intended to subject judicial candidates to the rigors of election campaigns, the Eighth Circuit held that there is a compelling interest in an "independent judiciary" sufficient to justify the burdens placed by the canon's provisions on the constitutional rights of candidates, political parties, and voters. The appellate court also narrowly construed the provision of the canons that forbids the judicial candidates from announcing their views to apply only to issues likely to come before the candidate if elected.

The Petitioners argue that the nature of the candidate selection process is at issue. Having established that judicial candidates can only assume judicial office by popular election, the State cannot then constitutionally deprive candidates of the means to communicate their messages or voters of the right to receive the information necessary to their voting decisions. Whatever interest the state might have in protecting judicial neutrality in decision making is adequately protected by unchallenged provisions of the judicial canon. Clear precedents of the Supreme Court establish that speech and associational rights at the very core of the First Amendment cannot be denied or burdened as the challenged provisions of the canon do. Moreover, that the canon forbids use of endorsements by political parties (like the Republican or Democratic Parties) and forbids candidates to speak at political party gatherings, while permitting use of endorsements by non-political party organizations (like the James Madison Center).  Click here for a copy of the petition in .pdf .