Wersal v. Sexton Part 1: One v. Many

I do not agree with what you have to say, but I’ll defend to the death your right to say it.


On March 27, 2012, the Eighth Circuit Court of Appeals filed an opinion in Wersal v. Sexton, ruling upon Attorney Greg Wersal’s challenge to three judicial canons that govern candidates for judge in Minnesota.  See sample story here and here.

I first saw lawyer Greg Wersal when he was sitting on a panel at a seminar held at the StarTribune building – after the White decision had been handed down by the US Supreme Court in 2002.  I was not fully up to speed on this issue at that time.  But I was curious enough to attend the seminar.  I had never met Greg Wersal and I had only heard his name in connection with the White case, always taken in vain.

Although I listened to this panel with an intellectual ear, the first thing that really popped out at me was the way in which the other people on the panel treated Wersal.  It was a combination of everything, the body language (leaning away from him), the sneers, the disdain in their voices.  He sat ‘alone’ on the dais full of people, one man with everyone else literally turned against him.  This was no intellectual discussion.  This was something else.  And that intrigued me.

Afterwards, I learned that Wersal had been investigated and/or charged by the Director of the Minnesota Office of Lawyers Professional Responsibility, that he had been vilified by bench and bar, and that he had refused to back down.  Of course, this made me like him immediately.

I first met Greg Wersal one cold winter day (the type of weather where if you stand still for a minute, you freeze) at the open-air top of a parking ramp in downtown Minneapolis.  When I looked toward him and said his name he involuntarily flinched and recoiled.  I could tell this was a man who had been through a lot and that he assumed I was saying his name to begin lambasting him.

When I told him that I had been at the StarTribune panel, and that I was appalled at how he was treated by the rest of the panel, he visibly relaxed.  Despite the cold, we talked for a minute.  In that minute, we forged a bond that has stood to this day.

In that minute, we agreed that we had very different views from each other on issues.  Then we both, simultaneously, began quoting Voltaire, the quote above.

I have been saddened about how Greg Wersal has been treated in my justice system.  I guess I expect more from professionals and public servants.  If someone does not like an idea, then let’s discuss the idea.  I see little if any reason to make it personal.

Judges and lawyers have all been to college, and law school.  In those intellectual studies, it might have been nice if we’d had a course entitled, “Overcoming Human Nature.”  We are all humans, we are all subject to human nature.  But being a professional means overcoming human nature.

A man walking by a jewelry store may pause for a bit, and think, “I want to smash the window, grab that pretty diamond necklace, and take it home to my wife.”  The thought is human.  But to follow the law, he has to overcome instinct.  He needs to keep walking, pass by the store, and go home empty handed.  That is what we expect of the man in the street.

Should we expect less of judges and lawyers?  If a lawyer or judge wants to lash out at the person speaking the idea, shouldn’t that be overcome?

First Amendment law emphasizes ideas, and protects the speaker.

Obviously, First Amendment law continues to develop.  And in 2002, the US Supreme Court decided the White case in favor of Wersal’s position (first at the US Supreme Court, and in a later 8th Circuit 2005 White case).  Although many people fought that decision during the litigation, once it became law, judges and lawyers were bound to follow it.

What I saw in Minnesota in the wake of the two White decisions is the subject of later posts.  For this post, I noticed that although Greg Wersal had “won,” the vilification of him continued.

I have now worked closely with Greg Wersal on two cases.  I find him to be very bright, to have a talented analytical mind, and to possess convictions.  These are all admirable qualities, and I have greatly enjoyed working with him.  We are in agreement that there needs to be accountability and transparency in the justice system.  We don’t always agree about what that looks like.

As to content, we do not agree very often about the issues.  But we respect each other’s right to have divergent opinions, and to express them.

And we have both experienced the wrath of justice system insiders.

I ponder the vast difference between the way Greg Wersal was portrayed to me before I met him, and the person I know.  I contemplate the way professionals in my business insist on personalizing issues – that should not be personal.

I wonder about the way we grow the law in the justice system.  Doesn’t it always take someone willing to think outside the box, someone willing to make a new legal argument to help the law move forward?  Without those lawyers, the law would stagnate and no longer be helpful in deciding society’s disputes.

Unlike the legislature, which can reach out and grab issues it wants to consider, courts must wait for some lawyer to bring the right case at the right time.  So why do we treat the lawyers who are so necessary to this growth process so poorly?  What is it about our system that vilifies the very lawyers it needs most?

As I read the Eighth Circuit Opinion in Wersal v. Sexton, as I saw the great divide in the Court (five judges signed the main opinion, two signed concurrences, and a total of five signed two separate dissents) I thought – no one can be ‘right’ or ‘wrong’ in this debate – not when that many educated and thoughtful minds are in disagreement.

I am mystified that the majority Opinion did not talk about judges endorsing those seeking the public office of judge (wasn’t that supposed to be the issue?).  And I’ll discuss that in Part 2.

But mostly, I marveled at how one man was willing to jump into the abyss, not knowing whether there was going to be water in the pool, in order to get this conversation going.