Rick understates the significance of the cert. denial today in the White
case.
The 8th Circuit had voided the restrictions in MN on judicial candidates
soliciting money and on affiliating with political parties. This is on
top of the Supremes having struck the announce clause.
Locally, the state bar and many of the judges were in denial, hoping for
the granting of cert. Few know what to expect now.
I am on a few state bar committees looking at what next and I do not see
any traction at the legislature regarding what to do, even though many
of us would like to move to an appointed bench. It will probably take a
few ugly elections here before anything happens.
I am participating in a local February 23, symposium on options after
White. On my web page noted below there is a link to a Bench & Bar
essay of mine that discuss White and what it means for MN and perhaps
other states.
Judicial Elections: Notable on today's Supreme Court order list is
today's cert denial in Dimick v. Republican Party of Minnesota, No.
05-566. This is the follow up to the Supreme Court's decision in
Republican Party of Minnesota v. White, where a 5-4 Supreme Court struck
down a portion of Minnesota's code of judicial campaign conduct as
violating the First Amendment. The Eighth Circuit on remand went much
further than the Supreme Court did in White, striking down key
provisions of Minnesota's judicial campaign rules, and a very strong
effort was made to get the Supreme Court to take this case again.
UPDATE: With the campaign finance ruling today, it is easy to lose sight
of the significance of this cert. denial. The earlier White case by the
Supreme Court struck down Minnesota's "announce clause," which was a
rarely used judicial campaign speech rule that the ABA itself had
abandoned. In the current case, the Eighth Circuit struck down a rule
limiting the partisan political activities of judges as well as a ban on
certain direct solicitation of campaign contributions by judges. Along
the way, the Eighth Circuit called into question all judicial campaign
codes, suggesting that when such rules are enacted by state high courts
rather than state legislatures, the courts have acted beyond their
authority.
Already before this cert. denial, federal courts have began striking
down a host of judicial campaign rules (while state courts have tended
to uphold them). While the cert. denial is not a ruling on the merits,
it is likely to accelerate the trend in the federal courts. Judicial
elections are going to look even more like non-judicial elections as
time goes on.
--
David Schultz, Professor
Hamline University
Graduate School of Management
MS-A1740
1536 Hewitt Avenue
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn2.com