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The Supreme Court has been asked again to decide the murky issue of what judicial candidates can and can’t do in election campaigns. But the best argument for taking up the matter again may be found not in a recent petition for review in a Minnesota case, but in the Texas court where former House Majority Leader Tom DeLay faces trial. A new judge was picked on Nov. 3 to preside over DeLay’s conspiracy and money laundering trial after two other judges withdrew because of challenges based on their political contributions and connections. And the Texas Supreme Court chief justice who appointed the new judge could face a challenge because his 2002 campaign treasurer had political ties to DeLay. “I think we’ve seen in the DeLay issue in Texas that mere identification of a judge with a political party does create a sense of judges being something less than absolutely impartial umpires in the law,” said Texas attorney Thomas R. Phillips. Phillips, partner in Houston-based Baker Botts’ Austin, Texas, office, knows first-hand the system of electing judges in Texas. He was appointed chief justice of the Texas Supreme Court in 1987 and was re-elected by voters four times. Since joining Baker Botts in September, Phillips has taken on the appeal in the Minnesota case, which exemplifies for him all of the good, bad and ugly in judicial elections today. The “good” is Minnesota’s system of nonpartisan judicial elections and a code of judicial conduct that regulates the candidates’ campaign finance and political activities. The “bad” is a decision by the 8th U.S. Circuit Court of Appeals three months ago striking down two key regulations in the code. And the “ugly” is what is likely to happen under a confused state of ethical requirements when some 30 states hold elections for their supreme courts in 2006. Phillips is counsel of record in Dimick v. Republican Party of Minnesota, No. 05-566, in which he represents the Minnesota Board on Judicial Standards and asks the U.S. Supreme Court to grant review and reverse the 8th Circuit ruling. The Supreme Court examined Minnesota’s system in 2002 in Republican Party of Minnesota v. White, 536 U.S. 765, in which it ultimately held that the so-called announce clause of the judicial code, which prohibited judicial candidates from stating their views on legal issues within the province of the court for which they were running, violated the First Amendment. Gregory Wersal, twice an unsuccessful candidate for the Minnesota Supreme Court, filed the 1998 lawsuit that led to the 2002 decision in White. He and others challenged not only the announce clause but two other restrictions. One is the “solicitation” clause, which bars judicial candidates from personally soliciting campaign contributions from potential donors. The other is the “partisan activities” clause, which prohibits judicial candidates from attending or speaking at political party gatherings, identifying themselves as members of political parties, or seeking, accepting or using political party endorsements. These two restrictions were not before the high court in White. But on remand in the same case, the 8th Circuit in August found them also invalid. “The announce clause was obsolete, so obsolete it remained as law in only eight states and was never enforced,” said election law scholar Roy Schotland of Georgetown University Law Center. “Contrast that with this: We’ve got limits on partisan conduct in 19 states; limits on personal soliciting in 28 states. The 8th Circuit decision also holds the Minnesota high court was acting ultra vires [outside its legal power] in trying to regulate these elections and 49 states either have a general inherent power in the judiciary to regulate or nothing more than a provision somewhere saying the court will regulate the judicial branch and the bar. “So this case is incomparably more important than the other,” he insisted. CHILLING SPEECH A divided 8th Circuit said that the partisan-activities prohibition is directed toward associational activities that are “part-and-parcel of a candidate’s speech for or against particular issues embraced by the political party.” The circuit also said that the state’s interest in preserving open-mindedness in judges could not be the restrictions’ true purpose because they were “woefully underinclusive”: they could not counteract “a lifetime of commitment” to a political party and its positions and they do not prohibit a judicial candidate from associating with “interest groups.” The court also invalidated the solicitation clause insofar as it barred candidates from personally soliciting contributions from “large groups” and from signing solicitation letters. The court said the provision still requires contributions to be made to a campaign committee, which cannot disclose to the candidate who has contributed. That mechanism was sufficient to protect the state’s interest in preventing bias for or against particular parties. James Bopp of Bopp, Coleson & Bostrom in Terre Haute, Ind., who successfully represented the Republican Party of Minnesota in White and in the latest 8th Circuit decision, contends that the lower courts have not had time to “sort out” these questions, thus Supreme Court review would be premature. Review also would be pointless, he argued, because “it’s really hard to say the 8th Circuit decision is wrong. They very faithfully applied the First Amendment analysis from White. “I just think the problem here is there are a lot of state supreme courts and the [American Bar Association] out there that just haven’t come to grips with the fact that White destroyed the foundation of their extremely intrusive and burdensome regulatory schemes,” he said. “The foundation was judicial elections are different in some fundamental way, so the First Amendment didn’t apply. The Supreme Court has destroyed that foundation.” But as parties get more and more interested in judges and see judicial races as offering wedge issues to bring out their voters, “it becomes ever more critical for states to treat the judiciary differently,” countered Phillips. “The judiciary has become very important in party politics right now.” The ABA, Phillips noted, is promulgating a new model code with solicitation and partisan-activities provisions still in it. State disciplinary agencies can expect challenges to any efforts to enforce these clauses, he said, and those challenges are being brought in an organized way. “Every judge and every judicial candidate in elected states would like to know what the limits of the ethical rules are and whether they and their opponents are acting in an ethical manner.”

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