« Ind. Decisions - Two today from the Court of Appeals | Main | Ind. Decisions - Two Indiana cases today from the 7th Circuit »
Monday, August 07, 2006
Courts - Judicial Campaign Speech Subject of ABA Mock Trial
The ABA Annual Meeting's daily journal for today, dateline Honolulu, has this report by Mark Hansen. I couldn't resist a few parantheticals, as the ILB has been following these issues for some time:
Suppose a candidate for the Minnesota Supreme Court wants to identify himself as a Republican and personally solicit and accept campaign contributions from political supporters—moves that would violate the state’s code of judicial conduct.How would the U.S. Supreme Court rule on the candidate’s contention that those restrictions violate his First Amendment right to free speech?
That was the question presented Sunday in a mock Supreme Court argument session staged by the ABA’s Tort Trial & Insurance Practice Section.
The exercise may have been academic, but the case was not.
Gregory Wersal was a candidate for the Minnesota Supreme Court who challenged the state’s prohibitions on partisan political activities and solicitations by judicial candidates.
Last August, the St. Louis-based 8th U.S. Circuit Court of Appeals in an en banc ruling held that those restrictions violate a judicial candidate’s free speech rights. Republican Party of Minnesota v. White, 416 F.3d 738. In January, the Supreme Court without comment turned down the state’s appeal of the 8th Circuit’s ruling. [See ILB entries from Jan. 24th and Jan. 30th on the Supreme Court's turndown of Dimick.]
The Supreme Court had previously struck down the state’s prohibition against judicial candidates stating their views on controversial issues that might come before them on the bench. 536 U.S. 765 (2002).
Sunday’s exercise assumed for the sake of argument that the Supreme Court had agreed to review the 8th Circuit’s decision in White, now known as Dimick v. Republican Party of Minnesota.
Encino, Calif., appellate lawyer David Axelrad played the part of the lawyer for the state. Stanford University law professor Alan Morrison pretended to represent the candidate and the state’s Republican Party. [i.e., he played Indiana's Jim Bopp]
Acting as Supreme Court justices were 6th U.S. Circuit Court of Appeals Chief Judge Danny Boggs, 10th U.S. Circuit Court of Appeals Judge Harris L. Hartz, Nebraska Court of Appeals Chief Judge John Irwin and Hawaii Supreme Court Judge Steven Levinson.
Afterward, a panel of lawyers and professors offered critiques of the two sides’ arguments.
Axelrad argued that the campaign restrictions serve a compelling state interest in preserving the independence and the impartiality of the judiciary at a time when judicial candidates are most vulnerable to undue political pressures.
“The issue here is the state’s ability to preserve an impartial and independent judiciary through a set of minimal restrictions that don’t impair a candidate’s right to speak or raise money,” he told the mock justices.
Morrison contended that the restrictions are overly broad and don’t meet the narrowly tailored requirements of the First Amendment.
He said the restrictions do not only prevent candidates from stating facts. They also do nothing to address the influence of other special interest groups such as unions or the Chamber of Commerce.
After the arguments, the “justices” issued no decision. Irwin and Levinson said they were inclined to side with the state. Hartz said he would probably vote to affirm the 8th Circuit. Boggs declined to say how he might rule.
Posted by Marcia Oddi on August 7, 2006 07:29 PM
Posted to Courts in general