Wersal v. Sexton Part 2: Why is Secret Better?

On March 27, 2012, the Eighth Circuit Court of Appeals issued a decision in Wersal v. Sexton.  The  2012 8th Circuit Opinion was one in a string of cases in which Greg Wersal and others challenged the Minnesota rules of judicial conduct that relate to campaigning for the office of judge.  The judicial canons apply to judges running for election or re-election, and for lawyers running in public campaigns to become judge.

One of the judicial canons that was challenged by Wersal (Canon 5(B)(1)(d) became Rule 4.1(A)(4) in Minnesota’s 2008 judicial code of conduct) prohibits sitting judges from publicly endorsing candidates for public office.

The majority opinion (in which 5 appellate judges joined) not only ruled that the State of Minnesota can regulate judges publicly endorsing candidates, the Opinion suggests there is an obligation to do so.

I can understand this on one level.  If you think about it, it would make it very hard for a lawyer-candidate to win a public election challenging a sitting judge, if the incumbent was endorsed by another sitting judge, or 10, or 100.  The outcome of the recent 8th Circuit Opinion is good for lawyer-challengers.

Other parts of the Opinion do not make sense to me.

First, although the Opinion finds that

“…Minnesota’s endorsement clause [of the judicial canons] pertains to endorsements of any candidate for public office, regardless of whether the elections are partisan or nonpartisan…”

(p. 28), I can’t find that the Opinion dealt directly with the issue of judges endorsing candidates for the public office of judge.

The Opinion states,

“When judges are speaking as judges, and trading on the prestige of their office to advance other political ends, a state has an obligation to regulate their behavior.”

(p. 25) (emphasis added).

The potential endorsements discussed in the Opinion were candidates connected directly to political parties.  But the vast majority of those who run for judge in Minnesota are not formally endorsed by a political party.

I could not find any Opinion analysis directly on point – regarding sitting judges endorsing candidates for judge.

I suppose the Opinion could be read to say that endorsing a person for the office of judge is necessarily an endorsement of their political party.  But that doesn’t really make sense for judicial elections.  First, there’s no sure way of discerning a judicial candidate’s political party if they do not publicly declare it.  Some judicial candidates have no strong ties to any political party.

Second, if we accept the Opinion’s analysis, then what about the long-term Minnesota practice of sitting judges privately endorsing lawyers for appointment to the office of judge?  The audience for those endorsements is the Governor or his judicial selection commission, with the Governor making the final decision (and, I’m told, including the Governor’s interview of the lawyer-candidate).

Of course, the Governor is the highest-ranking member of his party (as acknowledged by the 2005 8th Circuit Opinion).  It seems clear that a lawyer who wants to be appointed judge by a particular Governor would know to seek private endorsements from sitting judges who have some connection to that Governor’s political party.

When judges privately recommend a lawyer for appointment to judge – don’t they do precisely what the 2012 8th Circuit Opinion says a State is obligated to regulate – “trade on the prestige of their office to advance” a candidate for the public office of judge?

Yet Rule 4.3 specifically authorizes candidates for appointment to the public office of judge to seek “support” from anyone.

So what’s so different between public endorsements, and private, behind-the-scenes endorsements?

It’s not clear whether or not the 8th Circuit knew about the practice of sitting judges endorsing candidates for appointment to judge.  Yet it almost seems that the 8th Circuit Opinion deftly side-stepped the spot where this would been troublesome for its analysis.

My concern is this notion that it’s important to preserve the image of neutrality in the courts.  I think we should be  more concerned with authenticity.  The whole point of the ‘appearance of impropriety’ rule of law is to protect the parties.  It was never intended to fuel a giant PR machine used to foster the mystique of honor – over actuality.  Let’s face it:  many judges are connected to political parties.  That’s reality.  It’s also human.  (Note that the Minnesota Code specifically permits judges to register to vote and to participate in party-based causcuse-type election procedures.  See Comments [3] and [6] to Rule 4.1.)  Why hide that from the public?  Wasn’t that the gist of the prior Wersal decisions?

To me, if a judge is qualified, s/he has learned how move to the middle.  I don’t care what a judge’s political party is if that judge has learned to ‘move to the middle.’  But if a judge exhibits embroilment in the case, where behavior or rulings show marked unfairness or favoratism (this applies to district judges but also to policy-making judges in a slightly different way), then my clients do want to know what fuels that, whether it be friendship, ex parte communications, political party, etc.

In other words, I believe that the issue of political party should not, will not matter at all, for a judge if the judge exhibits good judging.  And that goes for judges who are appointed and judges who are elected.

What’s the point of keeping reasons for potential bias from the public?  If the issue is really sitting judges trading on the prestige of their office, why is it ok for them to make private, behind the scenes endorsements of candidates for appointment to the public office of judge, just not public ones?  This really looks like a ‘what the public does not know won’t hurt them’ analysis.

This is precisely what I rail against in the justice system.  I regularly see how parties who are just trying to get a fair hearing in their case are hurt by what they do not know.

I do not believe secret is better.  I am a proponent of telling the public everything and letting them decide.  It just doesn’t work when government tries to portray an image.  We, the public, eventually find out.  Want to exhibit integrity?  Might as well be straight with us from the start.

I believe that what the public wants, what the public deserves, is a justice system that enforces the rules requiring neutrality from judges in their judicial decision-making. 

Let get serious with showing the public that we care about neutrality in the trenches, where their cases are litigated.

We in the system all know that out there now, are judges deciding cases based on what their buddies want, what their collegues want, what a bully judge tells them to do, what they think some political party wants, or because they are emotional about an issue, a party, or a lawyer.  I am interested in attacking that problem.

And I don’t think I’m alone.

To me, the beauty of the First-Amendment-protecting prior decisions in Wersal’s cases (see 2002 US Supreme Court case and 2005 8th Circuit Opinion link above) is that they are about permitting candidates to communicate to the public voting in elections, the people whose lives are impacted by the judiciary and who want to have some small voice in that.