United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1578

___________

Gregory Wersal, *

*

Appellant, *

*

v. *

*

Patrick D. Sexton, in his official *

capacity as Chair of the Minnesota *

Board of Judicial Standards; William J. *

Egan, in his official capacity as a *

Member of the Minnesota Board of * Appeal from the United States

Judicial Standards; Douglas A. Fuller, * District Court for the District of

in his official capacity as a Member of * Minnesota.

the Minnesota Board of Judicial *

Standards; Jon M. Hopeman, in his *

official capacity as a Member of the *

Minnesota Board of Judicial Standards; *

Cynthia Jepsen, in her official capacity *

as a Member of the Minnesota Board of *

Judicial Standards; E. Anne McKinsey, *

in her official capacity as a Member of *

the Minnesota Board of Judicial *

Standards; Gary Pagliaccetti, in his *

official capacity as a Member of the *

Minnesota Board of Judicial Standards; *

James Dehn, in his official capacity as a *

Member of the Minnesota Board of *

Judicial Standards; Kent A Gernarder, *

in his official capacity as Chair of the *

Minnesota Lawyers Professional *

Responsibility Board; Vincent A. *

Thomas, in his official capacity as Vice *
Chair of the Minnesota Lawyers *

Professional Responsibility Board; *

Kathleen Clarke Anderson, in her *

official capacity as a Member of the *

Minnesota Lawyers Professional *

Responsibility Board; Mark R. Anway, *

in his official capacity as a Member of *

the Minnesota Lawyers Professional *

Responsibility Board; Robert B. Bauer, *

in his official capacity as a Member of *

the Minnesota Lawyers Professional *

Responsibility Board; Joseph V. *

Ferguson, III, in his official capacity as *

a Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Wood R. Foster, Jr., in his official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Susan C. Goldstein, in her *

official capacity as a Member of the *

Minnesota Lawyers Professional *

Responsibility Board; Sherri D. *

Hawley, in her official capacity as a *

Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Lynn J. Hummel, in her official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Geri L. Krueger, in her official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Ann E. Mass, in her official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Mary L. Medved, in her official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

-2-
Board; David A. Sasseville, in his *

official capacity as a Member of the *

Minnesota Lawyers Professional *

Responsibility Board; Debbie *

Toberman, in her official capacity as a *

Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Dianne A. Ward, in her official capacity *

as a Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Stuart T. Williams, in his official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Jan M. Zender, in her official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; William P. Donohue, in his *

official capacity as a Member of the *

Minnesota Lawyers Professional *

Responsibility Board; Marne Gibbs *

Hicke, in her official capacity as a *

Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Richard H. Kyle, Jr., in his official *

capacity as a Member of the Minnesota *

Lawyers Professional Responsibility *

Board; Michael W. Unger, in his *

official capacity as a Member of the *

Minnesota Lawyers Professional *

Responsibility Board; Daniel R. *

Wexler, in his official capacity as a *

Member of the Minnesota Lawyers *

Professional Responsibility Board; *

Randy R. Staver, in his official capacity *

as a Member of the Minnesota Board *

of Judicial Standards; Honorable Terri *

Stoneburner, in her official capacity as *

-3-
a Member of the Minnesota Board of *

Judicial Standards, *

*

Appellees. *

___________

Submitted: December 16, 2009

Filed: July 29, 2010 (corrected 8/9/10)

___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.

___________

BEAM, Circuit Judge.

This case presents the question of whether three provisions of the Minnesota

Code of Judicial Conduct (Code) unconstitutionally infringe upon First Amendment

rights of judicial candidates. Gregory Wersal, a candidate for Justice of the Minnesota

Supreme Court, asserts that the so called "endorsement," "personal solicitation," and

"solicitation for a political organization or candidate" clauses of Canon 41

 are

unconstitutional on their face or as applied to him. On cross-motions for summary

judgment, the district court rejected Wersal's First Amendment claims and granted

summary judgment to the appellees–members of the Minnesota Board of Judicial

Standards and the Minnesota Lawyers Professional Responsibility Board. Wersal

appeals, and we reverse.

1

When Wersal initiated this lawsuit, these clauses were set forth in Canon 5. 

Prior to this appeal, however, the Minnesota Supreme Court revised the Code. See

Order Promulgating Revised Minn. Code of Judicial Conduct, No. ADM08-8004

(Minn. Dec. 18, 2008) (effective July 1, 2009), available at

http://www.bjs.state.mn.us. As a result of those revisions, the challenged clauses are

now located in Canon 4.

-4-
I. BACKGROUND

This case has its roots in Republican Party of Minnesota v. White, 536 U.S. 765

(2002) (White I), and this court's prior en banc decision, Republican Party of

Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (en banc) (White II). In those

opinions, Wersal, among others, successfully challenged the so called "announce,"

"partisan-activities," and "solicitation" clauses of Canon 5 on First Amendment

grounds. White I, 536 U.S. at 788 (announce clause); White II, 416 F.3d at 766

(partisan-activities and solicitation clauses). In an effort to bring the Code into

compliance with the White decisions, the Minnesota Supreme Court removed the

"announce" and "partisan-activities" clauses from the Code and amended the

"solicitation clause." Wersal now maintains that the amendments to the solicitation

clause do not cure its invasion of his First Amendment rights, and that the

endorsement clause improperly restricts expression protected by the First Amendment.

The endorsement clause–Canon 4.1(A)(3)–and the solicitation clauses–Canon

4.1(A)(4) and (6)–each rein in a judicial candidate's2

 speech.3 The endorsement clause

prevents a judicial candidate from "publicly endors[ing] or, except for the judge or

candidate's opponent, publicly oppos[ing] another candidate for public office." 52

Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(3). The personal

solicitation clause prohibits a judicial candidate from "personally solicit[ing] or

accept[ing] campaign contributions," id. at 4.1(A)(6), and the solicitation for a

political organization or candidate clause provides that a judicial candidate shall not

2

The Code defines "judicial candidate" as "any person, including a sitting judge,

who is seeking selection for judicial office by election or appointment." 52 Minn.

Stat. Ann., Code of Judicial Conduct, Terminology. 

3

Notably, Canon 4 applies to both judicial candidates and to non-candidate

judges. See 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1. We review

the constitutionality of these clauses only as they apply to judicial candidates.

-5-
"solicit funds for a political organization or a candidate for public office," id. at

4.1(A)(4)(a).4

The facts of this case indicate the degree to which these particular provisions

have chilled Wersal's speech. In early 2007, Wersal announced his intention to run

for the office of Chief Justice of the Minnesota Supreme Court. As part of his

campaign, Wersal wanted to publicly endorse certain other candidates for public

office. Specifically, he desired to support Tim Tinglested, candidate for Associate

Justice of the Minnesota Supreme Court, Glen Jacobsen, candidate for Minnesota

District Court Judge, and Michele Bachmann, candidate for United States Congress. 

However, the endorsement clause prevented Wersal from engaging in any such public

endorsement of these candidates.

Moreover, Wersal wanted to personally solicit funds for his 2008 campaign

from non-attorneys by going door-to-door and by making personal phone calls asking

for financial support although he pledged (and continues to pledge) to recuse himself

from any case in which a known contributor is or becomes a party. However, the

personal solicitation clause specifically barred him from engaging in such activity, and

Wersal felt that the solicitation for a political organization or candidate clause further

constrained his efforts in seeking financial contributions from non-attorneys. 

Accordingly, Wersal believed that he could not wage an effective campaign as long

as the endorsement and solicitation clauses remained in force. He, therefore, asked

for injunctive and declaratory relief in the district court. After it became apparent that

Wersal would not be able to get adequate relief prior to the 2008 campaign, he

decided not to run for the Minnesota Supreme Court in 2008, but to instead run for the

4

These clauses are subject to certain other requirements and exceptions listed

in Canons 4.2 and 4.4 of the Code. 52 Minn. Stat. Ann., Code of Judicial Conduct,

Canon 4.2(A)(5), B(3) & 4.4(B)(1). We deal with these additional requirements and

exceptions in more detail below.

-6-
Minnesota Supreme Court during the 2010 elections.5

 In furtherance of his 2010

campaign, Wersal wishes to engage in conduct parallel to that which he sought to

engage during the 2008 campaign. However, just as in 2008, Wersal continues to feel

limited by the contested clauses.

In granting the appellees' motion for summary judgment, the district court held

(1) Wersal's challenge to the solicitation for political organization or candidate clause

was not ripe; and (2) the endorsement and personal solicitation clauses were narrowly

tailored to meet the state's legitimate interest in protecting judicial impartiality.

II. DISCUSSION

A. Judicial Selection and Political Speech

Minnesota chooses to elect the judges of its courts. Minn. Const. art. 6, § 7. 

While we have confessed "some bias in favor of a system for the appointment of

judges," the sovereignty of the states within our federal system guarantees that

"Minnesota may choose (and has repeatedly chosen) to elect its appellate judges." 

White II, 416 F.3d at 746, 747. But "[i]f Minnesota sees fit to elect its judges, which

it does, it must do so using a process that passes constitutional muster." Id. at 748.

Minnesota has enacted Canon 4 of the Code in an effort to regulate judicial

elections. In White I, the Supreme Court held the announce clause, which prohibited

judicial candidates from stating their views on disputed legal issues, unconstitutional. 

In White II, an en banc court of this circuit held the partisan-activities and solicitation

5

According to the Minnesota Secretary of State, Wersal has now filed to run in

2010 against Associate Justice Helen Meyer for the position she now occupies on the

Minnesota Supreme Court. Minnesota Secretary of State, Candidate Filings,

http://candidates.sos.state.mn.us/ (follow "Judicial Offices" hyperlink) (last visited

June 23, 2010).

-7-
clauses unconstitutional. It now falls to this panel to determine whether the

endorsement, personal solicitation, and solicitation for a political organization or

candidate clauses are permissible under the First Amendment.

The First Amendment provides that "Congress shall make no law . . . abridging

the freedom of speech." U.S. Const. amend. I. Inherent within this protection is the

"corresponding right to associate with others in pursuit of a wide variety of political,

social, economic, educational, religious, and cultural ends." Roberts v. U.S. Jaycees,

468 U.S. 609, 622 (1984); see also Buckley v. Valeo, 424 U.S. 1, 15 (1976) ("The

First Amendment protects political association as well as political expression."). And,

the First Amendment is made applicable to the states through the Due Process Clause

of the Fourteenth Amendment. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,

336 n.1 (1995).

The political speech burdened by the clauses at issue in this case is "the very

stuff of the First Amendment." White II, 416 F.3d at 748. Indeed, "'the constitutional

guarantee [of the freedom of speech] has its fullest and most urgent application

precisely to the conduct of campaigns for political office.'" Id. (alteration in original)

(quoting Buckley, 424 U.S. at 15). Our system of representative democracy relies on

such a protection of political speech, "for it is the means to hold officials accountable

to the people." Citizens United v. FEC, 130 S. Ct. 876, 898 (2010); see also Buckley,

424 U.S. at 14-15 ("In a republic where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for office is essential, for the

identities of those who are elected will inevitably shape the course that we follow as

a nation."). "For these reasons, political speech must prevail against laws that would

suppress it, whether by design or inadvertence." Citizens United, 130 S. Ct. at 898.

Indeed, so strong is the protection of political speech that the Court recently

indicated that "it might be maintained that political speech simply cannot be banned

or restricted as a categorical matter." Id. However, the Court stopped short of

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placing a categorical ban on political speech restrictions, choosing instead to examine

laws burdening political speech under "strict scrutiny." Id. Thus, we only permit

restraint of political speech where, upon strict scrutiny, the regulation "advances a

compelling state interest and is narrowly tailored to serve that interest." White II, 416

F.3d at 749.

Canon 4's restrictions on endorsements of candidates and solicitation of

campaign funds directly limit judicial candidates' political speech. And, Canon 4's

restriction on whom a candidate may endorse limits a candidate's right to associate

with others who share common political beliefs and aims. Thus, Minnesota's

endorsement and solicitation clauses burden political speech and must be examined

under strict scrutiny.

B. Canon 4.1(A)(4)(a)'s Ripeness

Before we apply strict scrutiny to the clauses, we must first ask whether

Wersal's challenge to the political organization or candidate solicitation clause–Canon

4.1(A)(4)(a)–is ripe for review. This clause provides that a judicial candidate shall not

"solicit funds for a political organization or a candidate for public office."6

 52 Minn.

Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(4)(a). The district court held that

Wersal's challenge to this restriction was not ripe because the intent of this rule was

to restrict candidate's from soliciting funds for political parties and other candidates. 

Specifically, the court held that the issue was not ripe because (1) the clause had never

been applied to a candidate's solicitations for his or her own campaign; (2) Wersal's

campaign committee was not a "political organization" as defined by the Code; (3)

Wersal had not sought an advisory opinion as to whether the clause would apply to

6

Canon 4.1(A)(4)(b) also prohibits a judicial candidate from making "a

contribution to a candidate for public office." Wersal has not challenged the

application of the "contribution clause," and we refrain from reviewing it.

-9-
solicitations for his campaign; and (4) Wersal's interpretation was an absurd reading

of the Code which was contrary to its plain meaning. We disagree.

The ripeness doctrine "prevent[s] the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements." Abbot Labs. v.

Gardner, 387 U.S. 136, 148 (1967), rev'd on other grounds, Califano v. Sanders, 430

U.S. 99, 105 (1977). Before the federal courts may address a question, "there must

exist 'a real, substantial controversy between parties having adverse legal interests, a

dispute definite and concrete, not hypothetical or abstract.'" Neb. Pub. Power Dist.

v. MidAmerican Energy Co., 234 F.3d 1032, 1037-38 (8th Cir. 2000) (quoting Babbitt

v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). Accordingly, to

determine whether a dispute is ripe for judicial review we consider "(1) the hardship

to the plaintiff caused by delayed review; (2) the extent to which judicial intervention

would interfere with administrative action; and (3) whether the court would benefit

from further factual development." Nat'l Right to Life Political Action Comm. v.

Connor, 323 F.3d 684, 692-93 (8th Cir. 2003) (citing Ohio Forestry Ass'n v. Sierra

Club, 523 U.S. 726, 733 (1998)). 

The district court's ripeness analysis is flawed in four ways. First, the fact that

the clause has never been applied to prohibit a candidate from soliciting contributions

for his or her own campaign does not dispositively indicate that the provision would

never be so applied. Second, although Wersal's own campaign committee is not a

"political organization" under the Code,7

 the clause also prohibits a candidate from

soliciting "funds for . . . a candidate for public office," which includes Wersal himself

in this instance. 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.1(A)(4)(a)

7

"For purposes of this Code, the term [political organization] does not include

a judicial candidate's campaign committee . . . ." 52 Minn. Stat. Ann., Code of Judicial

Conduct, Terminology, "Political Organization."

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(emphasis added).8

 And, as we noted in White II, clauses which restrict a candidate

from soliciting funds for his own campaign are content-based restrictions which

burden core political speech. 416 F.3d at 763-64. Accordingly, a plain reading of this

clause chills Wersal from engaging in speech–solicitation of funds–which this court

has already held is protected First Amendment expression.

Third, we do not rigidly require that the plaintiff seek a pre-enforcement

advisory opinion where, as here, the regulation at issue chills protected First

Amendment activity. See Minn. Citizens Concerned for Life v. FEC, 113 F.3d 129,

132 (8th Cir. 1997); see also Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393

(1988) (noting "self-censorship [is] a harm that can be realized without an actual

prosecution"); Majors v. Abell, 317 F.3d 719, 721 (7th Cir. 2003) (stating that "[a]

plaintiff who mounts a pre-enforcement challenge to a statute that he claims violates

his freedom of speech need not show that the authorities have threatened to prosecute

him; the threat is latent in the existence of the statute" (citations omitted)). Moreover,

the appellees could very easily have drafted an advisory opinion in response to this

litigation indicating that the clause would not be applied to a candidate's solicitation

of funds for his own campaign. That the appellees did not to do so indicates that the

clause more than likely does apply to Wersal's desires to solicit funds for his own

campaign.

Fourth, our reading of this clause is neither absurd nor contrary to any other

provision in the Code. Although the clause may have been intended to prevent a

judicial candidate from soliciting funds for another candidate's campaign, neither the

clause itself nor the Canon as a whole compels such a reading. We note that under our

8

Giving the term "candidate," its ordinary or natural meaning, see Crawford v.

Metropolitan Government of Nashville and Davidson County, 129 S. Ct. 846, 850

(2009), means "a person who seeks an office." Random House Webster's Unabridged

Dictionary 304 (2d ed. 1997). Since Wersal is seeking an elected office, he is a

"candidate." Accordingly, under a plain reading of the clause, it prohibits Wersal

from soliciting funds for his own candidacy.

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reading, this clause is similar to, if not redundant with, the personal solicitation clause. 

But, the mere fact that a Code is redundant is not evidence of its absurdity. Morever,

we decline to impart a different meaning to language that plainly prevents the

soliciting of funds for one's own campaign.

Where a regulation, such as Canon 4.1(A)(4)(a), chills protected First

Amendment activity, its hardship upon the plaintiff is sufficiently substantial to justify

a pre-enforcement declaratory judgment action. Minn. Citizens, 113 F.3d at 132. 

Morever, we generally consider an issue to be fit for judicial decision when the issue

involved is legal rather than factual. See id. Here, the issue presented requires no

further factual development, is largely a legal question, and chills protected First

Amendment expression. Thus, to the extent that the solicitation for a political

organization or candidate clause prevents Wersal from soliciting funds for his own

campaign, there exists a real, substantial and concrete dispute, and the issue is ripe for

review.

C. Constitutional Framework

Having found that Wersal's challenge to the solicitation for a political

organization or candidate clause is ripe, we now turn to the constitutional issues

before us.

1. Facial vs. As-Applied Challenges

Wersal encourages us to examine the facial constitutionality of these clauses.

Alternatively, Wersal asserts that the clauses are at least unconstitutional as-applied.

Therefore, we begin our constitutional analysis by determining whether we will

examine these challenges as an as-applied challenge or as a facial challenge.

The Supreme Court cautions against holding a law facially unconstitutional and

encourages us to exercise "judicial restraint in a facial challenge." Wash. State

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Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). Indeed, "a

plaintiff can [generally] only succeed in a facial challenge by 'establish[ing] that no

set of circumstances exists under which the [law] would be valid.'" Id. at 449 (second

alteration in original) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). 

Accordingly, "a facial challenge must fail where the [law] has a plainly legitimate

sweep." Id. (internal quotation omitted).

However, in the realm of regulations that chill speech, the Court has relaxed this

standard, recently noting that "a [regulation] which chills [protected] speech can and

must be invalidated where its facial invalidity has been demonstrated." Citizens

United, 130 S. Ct. at 896. Moreover, "the validity of [a] regulation depends on the

relation it bears to the overall problem the government seeks to correct, not on the

extent to which it furthers the government's interest in an individual case." United

States v. Edge Broad. Co., 509 U.S. 418, 430 (1993) (quotation omitted). 

The endorsement clause chills speech "that is beyond all doubt protected[,]

mak[ing] it necessary in this case to" review the facial validity of that regulation. 

Citizens United, 130 S. Ct. at 896. As to the solicitation clauses, Wersal's averments

are very limited. He asserts only that his efforts to personally solicit funds for his own

campaign from non-attorneys are thwarted by the clauses, Compl. ¶¶ 22, 44;

Appellant's Br. 15, 55, apparently recognizing that solicitation from attorneys may

well raise different issues, particularly in view of the "very specific information about

campaign contributions . . . publicly available, notably on the Internet." White II, 416

F.3d at 765 n.16; see also Siefert v. Alexander, No. 09-1713, 2010 WL 2346659, at

*14 (7th Cir. Jun. 14, 2010) (noting that recusal from all cases involving a broad range

of attorneys from whom the candidate solicited contributions could present serious

practical problems for the state judiciary). Accordingly, we review the

constitutionality of the solicitation clauses only as-applied to Wersal's desire to solicit

from non-attorneys for his own campaign. 

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2. Strict Scrutiny

Any regulation which curtails political speech violates the Constitution unless

it can withstand strict scrutiny review. White II, 416 F.3d at 749. To survive strict

scrutiny, the state must "show that the law that burdens the protected right advances

a compelling state interest and is narrowly tailored to serve that interest." Id. This

examination "is best described as an end-and-means test that asks whether the state's

purported interest is important enough to justify the restriction it has placed on the

speech in question in pursuit of that interest." Id. at 750. 

To determine whether an interest (the end) is "important enough" to justify the

abridgement of core constitutional rights, we examine the regulation (the means)

purportedly addressing that end. Id. 

A clear indicator of the degree to which an interest is "compelling" is the

tightness of the fit between the regulation and the purported interest:

where the regulation fails to address significant influences that impact

the purported interest, it usually flushes out the fact that the interest does

not rise to the level of being "compelling."

Id. If the interest is sufficiently compelling, then we ask whether the regulation (the

means) used to meet that end is "narrowly tailored to serve that interest." Id. at 751. 

Determining whether a regulation is narrowly tailored requires an examination of

several related factors. As we stated in White II, 

A narrowly tailored regulation is one that actually advances

the state's interest (is necessary), does not sweep too

broadly (is not overinclusive), does not leave significant

influences bearing on the interest unregulated (is not

underinclusive), and could be replaced by no other

regulation that could advance the interest as well with less

infringement of speech (is the least-restrictive alternative).

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Id. In other words, a regulation which burdens political speech will only withstand

constitutional scrutiny if it is "as precisely tailored as possible" to meet a very

important end. Id.

D. Minnesota's Purported Compelling State Interest: Impartiality

Minnesota maintains that its interests in maintaining judicial impartiality and

the appearance thereof are compelling interests worthy of supporting its regulation of

judicial candidates' speech.9

 In White I, the Supreme Court defined the bounds of

Minnesota's interest in judicial impartiality, providing that impartiality in the judicial

context had three potential meanings.

One such meaning of "impartiality" is a "lack of preconception in favor of or

against a particular legal view." White I, 536 U.S. at 777. According to the Court,

Minnesota does not have a compelling interest in seeking judges who "lack . . .

predisposition regarding the relevant legal issues in a case." Id. This is because

"[p]roof that a Justice's mind at the time he joined the Court was a complete tabula

rasa in the area of constitutional adjudication would be evidence of lack of

qualification, not lack of bias." Id. at 778 (quotation omitted). Thus, Minnesota has

no compelling interest in preventing judicial preconceptions on legal issues. Id.

A second meaning of "impartiality" is "lack of bias for or against either party

to [a] proceeding." Id. at 775. This notion "assures equal application of the law"

because it "guarantees a party that the judge who hears his case will apply the law to

him in the same way he applies it to any other party." Id. at 776. The Supreme Court

implied, and we have expressly held "that this meaning of impartiality describes a

9

As Justice O'Connor aptly notes, "If the State has a problem with judicial

impartiality [or its appearance], it is largely one the State brought upon itself by

continuing the practice of popularly electing judges." White I, 536 U.S. at 792

(O'Connor, J., concurring).

-15-
state interest that is compelling." White II, 416 F.3d at 753. Because protecting

litigants from biased judges presents a compelling state interest, the only question

remaining is whether each or any of the challenged clauses is narrowly tailored to

meet this compelling interest. We address this question in Part E below.

The third meaning of "impartiality" is "described as openmindedness," meaning

"not that [the judge has] no preconceptions on legal issues, but that he be willing to

consider views that oppose his preconceptions, and remain open to persuasion, when

the issues arise in a pending case." White I, 536 U.S. at 778. In other words, it is

impartiality that "seeks to guarantee each litigant, not an equal chance to win the legal

points in the case, but at least some chance of doing so." Id. The Court refrained from

determining whether impartiality articulated as "openmindedness" constitutes a

compelling state interest, finding instead that even if it were a compelling interest, the

announce clause was "woefully underinclusive" to meet such an interest. Id. at 780. 

In White II, we determined that the clauses at issue were similarly "woefully

underinclusive" to serve an interest in openmindedness. 416 F.3d at 758, 766.10

Likewise, the underinclusiveness of Canon 4's endorsement and solicitation clauses

illustrates that they are, as well, woefully underinclusive in serving any such interest,

whether it is compelling or not. We address this underinclusiveness below.

10In White II, we noted that "the underinclusiveness of Canon 5's partisan

activities clause clearly establishe[d]" that judicial openmindedness was not

"sufficiently compelling to abridge core First Amendment rights." 416 F.3d at 759. 

Specifically, we held that "the partisan-activities clause [left] appreciable damage to

the supposedly vital interest of judicial openmindedness unprohibited, and thus

Minnesota's argument that it protects an interest of the highest order fails." Id. at 760. 

While the same may be said of the clauses at issue in this case, we pass on the

question of whether openmindedness constitutes a compelling interest, focusing our

analysis instead on the narrow tailoring of the clauses.

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E. Narrow Tailoring

Although Minnesota has a compelling interest in promoting impartiality defined

as a lack of bias against parties and possibly has a compelling interest in promoting

impartiality defined as openmindedness, the constitutionality of the challenged

regulations turns on whether the regulations are narrowly tailored to meet either of

these interests. As noted above, a regulation is narrowly tailored only where it is

necessary, not overinclusive, not underinclusive, and is the least restrictive alternative

to address the purported state interest. Id. at 751. Each of the three clauses must

independently meet this analysis. We hold that all three fail.

1. The Endorsement Clause

The endorsement clause of Canon 4.1(A)(3) prohibits a judicial candidate from

"publicly endors[ing] or, except for the judge or candidate's opponent, publicly

oppos[ing] another candidate for public office." 52 Minn. Stat. Ann., Code of Judicial

Conduct, Canon 4.1(A)(3).11 This restriction depends wholly upon the subject matter

of the speech for its invocation. Candidates are not barred from talking about other

candidates for any purpose other than endorsing or opposing them. "Restricting

speech based on its subject matter triggers the same strict scrutiny as does restricting

core political speech." White II, 416 F.3d at 763-64. This is because "[t]he First

Amendment's hostility to content-based regulation extends not only to restrictions on

particular viewpoints, but also to prohibition of public discussion of an entire topic." 

Carey v. Brown, 447 U.S. 455, 462 n.6 (1980) (quotation omitted).

11 Wersal only challenges the "endorsement" provision of the clause.

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Additionally, the endorsement clause burdens core political speech.12 As we

noted in White II

"[A] candidate, no less than any other person, has a First Amendment

right to engage in the discussion of public issues and vigorously and

tirelessly to advocate his own election and the election of other

candidates. Indeed, it is of particular importance that candidates have the

unfettered opportunity to make their views known [and associate with

like-minded persons] so that the electorate may intelligently evaluate the

candidates' personal qualities and their positions on vital public issues

before choosing among them on election day. Mr. Justice Brandeis'

observation that in our country public discussion is a political duty,

applies with special force to candidates for public office. . . . [T]he First

Amendment simply cannot tolerate [a] restriction upon the freedom of

a candidate to speak [or associate] without legislative limit on behalf of

his own candidacy."

416 F.3d at 757 n.8 (alterations in original) (quoting Buckley, 424 U.S. at 52-54). 

Thus, the endorsement clause burdens political expression because it impairs a

candidate's ability to vigorously advocate the election of other candidates, associate

with like-minded candidates, and, thus, vigorously advocate his or her own campaign. 

Such a burden on core political speech triggers strict scrutiny. Citizens United, 130

S. Ct. at 898; see also White II, 416 F.3d at 748-49. Accordingly, the endorsement

clause, which is a content-based restriction on core political speech, is subject to strict

scrutiny review.

12Appellees argue that endorsements are not necessary to run an effective

campaign. Such an inquiry, however, is irrelevant as to whether restricting

endorsements burdens core political speech. Instead, the inquiry is whether the

infringed expression would communicate relevant information to the electorate. See

White I, 536 U.S. at 782 ("We have never allowed the government to prohibit

candidates from communicating relevant information to voters during an election."). 

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a. Unbiased Judges

The appellees contend that the endorsement clause is narrowly tailored to serve

Minnesota's compelling interest in impartiality articulated as a lack of bias for or

against parties to a case. According to the appellees, endorsements pose a particularly

acute danger to impartiality defined in this manner because a public endorsement for

a candidate indicates a judicial candidate's bias towards the endorsed party. Thus,

argue the appellees, the endorsement clause is a necessary evil to protect from such

a display of favoritism towards potential litigants. We disagree.

To be sure, the endorsement clause appears more narrowly tailored to serve the

state's interest in preserving a bench of judges who are unbiased towards parties than

was the announce clause at issue in White I. In particular, in White I the Court noted

that the announce clause was not directed to restrict "speech for or against particular

parties, but rather speech for or against particular issues." 536 U.S. at 776. The

endorsement clause, on the other hand, appears aimed at restricting speech for or

against particular parties. But, "[t]he question under our strict scrutiny test . . . is not

whether the [endorsement] clause serves this interest at all, but whether it is narrowly

tailored to serve this interest." Id. at 777 n.7. The endorsement clause fails this

analysis.

The endorsement clause is overinclusive to meet this end, restricting more

speech than is necessary to prevent a public display of favoritism. Although

endorsements do indicate a particular connection between endorser and endorsee, a

candidate may also use an endorsement as a proxy for expressing his or her views. 

Indeed, in some instances, endorsing a well-known candidate is a highly effective and

efficient means of expressing one's own views on issues. For example, in 1984, much

of the country was aware of Ronald Reagan's platform in his bid to serve a second

term as President. A judicial candidate who agreed with President Reagan's wellestablished views on, for instance, a strict interpretation of the Constitution or the

need for judicial restraint, might have better and more effectively publicized his own

-19-
subjective views by endorsing Mr. Reagan's candidacy, even though it was for a nonjudicial office. The same would likely have been true if it had involved President Bill

Clinton's campaign for re-election in 1996. Thus, whether it may be wise or necessary

for one candidate to endorse another, from one simple statement the judicial candidate

can announce his or her own views on a myriad of matters. And, it is highly unlikely

that any such similar endorsee would become a party in a state judge's court. 

Therefore, though the endorsement clause is aimed more narrowly at restricting

speech dealing with potential parties, its reach tends to prevent candidates from

expressing views on issues as well. 

The district court agreed that "endorsement of a particular candidate might

serve as a proxy for a position on an issue" but distinguished the clause from our

partisan-activities clause analysis in White II by concluding that such a "connection

lacks the force and immediacy society applies to the political organization–political

issue link." Wersal v. Sexton, 607 F. Supp. 2d 1012, 1022-23 (D. Minn. 2009). We

think this analysis is flawed. As we noted in White II, engaging in partisan activities

served to link a judicial candidate to the views espoused by the political party with

which he aligns. White II, 416 F.3d at 754-55. In some respects, the association with

another candidate is stronger indicia of the beliefs of the endorser than is an

association with a political party. Particularly, a statement that one is a "Republican"

or a "Democrat" or an "Independent" might tip the electorate off as to the type of

policies that the candidate would support or reject. But, endorsing a well-established

candidate denotes a particular subset of issues and policies with which the endorsing

candidate may subscribe. Accordingly, we ascribe the same, if not greater, "force and

immediacy" to the link between endorser and endorsee as we do between a candidate

and a political party. Thus, the endorsement clause clearly restricts more speech than

is necessary to serve an interest in impartiality articulated as a lack of bias for or

against parties to a proceeding.

The overinclusiveness of the endorsement clause is further illustrated by the

appellees' suggestion that the endorsement of certain candidates poses an acute risk

-20-
of a showing of bias for or against particular litigants. Specifically, the appellees are

troubled by the notion that a judicial candidate could endorse candidates for sheriff

and county attorney–persons who are likely to repeatedly appear as litigants or

representatives of litigants in Minnesota courts. We understand this concern. But, the

clause is not so cabined. It prohibits endorsements regardless of the likelihood that

the endorsee will ever appear as a party in the state's courts. Indeed, the clause 

prohibits a judicial candidate from endorsing numerous candidates who are unlikely

to ever personally appear as parties in Minnesota litigation, for instance the President

of the United States or any Governor, Congressman or Senator from a state other than

Minnesota. Given that the state's compelling interest in preserving a lack of bias

extends only to preventing bias for or against a party to a proceeding, White I, 536

U.S. at 775, the endorsement clause easily restricts more speech than necessary to

serve that asserted interest.

The endorsement clause is also underinclusive in purporting to serve the

compelling interest of electing unbiased judges. In particular, the clause only prevents

a candidate from endorsing other candidates for public office. Thus, a judicial

candidate may endorse a public official or a potential candidate for office so long as

the endorsee has not yet officially filed for office. Moreover, the endorsement clause

would permit a candidate to endorse the acts and policies of non-candidates no matter

the likelihood of their becoming litigants in a case before the court–that is businesses,

labor unions, the ACLU or any public officials not running for office. Thus, the

clause's underinclusiveness belies its purported purpose of preserving impartiality

defined as a lack of bias for parties.

Finally, a categorical ban on endorsements is not the least restrictive nor the

most effective means of limiting party bias or its appearance. Instead, where a person

who received the judge's endorsement appears before that judge, "recusal is the least

restrictive means of accomplishing the state's interest in impartiality articulated as a

lack of bias for or against parties to the case." White II, 416 F.3d at 755. In fact,

"[t]hrough recusal, the same concerns of bias or the appearance of bias that Minnesota

-21-
seeks to alleviate through the [endorsement] clause are thoroughly addressed without

'burn[ing] the house to roast the pig.'" Id. (third alternation in original) (quoting Butler

v. Michigan, 352 U.S. 380, 383 (1957)). Indeed, that Canon 2 requires a judge to

recuse "himself or herself in any proceeding in which the judge's impartiality might

reasonably be questioned," is evidence of that fact. 52 Minn. Stat. Ann., Code of

Judicial Conduct, Canon 2.11(A). And, "[c]oncern about the mere appearance of bias

is also addressed by recusal." White II, 416 F.3d at 755 (second alteration in original). 

This is because in Minnesota, "[t]he controlling [recusal] principle is that no judge 

. . . ought ever to [hear] the cause of any citizen, even though he be entirely free from

bias in fact, if circumstances have arisen which give a bona fide appearance of bias

to litigants." In re Collection of Delinquent Real Prop. Taxes, 530 N.W.2d 200, 206

(Minn. 1995) (emphasis in original).

The appellees contend that recusal is not the most effective means to address

the bias allegedly created by endorsements. They fear that if the state required a judge

to recuse from all cases where a party to the litigation was previously endorsed by that

judge, they would be forced to recuse themselves from a great number of cases, or at

least from a great number of important cases. We disagree.

First, even if a judge felt compelled to recuse himself from those cases in which

he had previously endorsed a party to a lawsuit, it would seemingly be an ineffective

campaign strategy for a judicial candidate to endorse persons almost certain to be

future litigants. That is to say, to the extent the state is concerned about a judge

endorsing the local sheriff and then having to recuse from all cases in which the

sheriff is involved (whether as a party or material witness), it would be foolish as a

matter of campaign strategy for a judicial candidate to follow such a course of action. 

It is almost certain that the electorate, especially if notified by a campaign opponent,

would reject this tactic. Thus, we believe the electoral marketplace will adequately

guard against the "parade of horribles" the appellees advance.

-22-
Second, and perhaps most importantly, contrary to the appellees' views,

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), is not inapposite. In

Caperton, while a case was pending before the Supreme Court of Appeals of West

Virginia, the CEO of an appealing corporation spent over $3 million supporting Brent

Benjamin's campaign for a seat on the court of appeals. Id. at 2257. Once Benjamin

won the seat, the appellee requested that Benjamin recuse himself. Benjamin refused. 

Id.

In the present case, the appellees contend that Benjamin's refusal to recuse in

the face of enormous financial contributions evidences that recusal is an ineffective

means of addressing potential bias. However, this argument ignores the fact that the

Court remedied the due process harm in Caperton by requiring recusal. Id. at 2263-

65. And, as the Supreme Court has recently noted "Caperton's holding was limited

to the rule that the judge must be recused, not that the litigant's political speech could

be banned." Citizen's United, 130 S. Ct. at 910. The harm in Caperton was that the

judge refused to recuse himself, not that he originally accepted the $3 million in

contributions. Accordingly, Caperton's holding does not require that a judge refuse

to speak during his or her campaign, only that due process demands that certain

actions which occur during a judicial campaign may later require recusal. And, to the

extent a judge remains reluctant to recuse from cases post-Caperton, Minnesota

"remain[s] free to impose more rigorous standards for judicial disqualification" than

due process requires. Caperton, 129 S. Ct. at 2267 (quotation omitted).

Accordingly, the endorsement clause is not narrowly tailored to serve any

interest in electing unbiased judges and it is clearly not the least restrictive means of

doing so. Thus, the clause fails strict scrutiny.

b. Openmindedness

To the extent that openmindedness constitutes a compelling state interest, the

endorsement clause is woefully underinclusive. As with the announce clause in White

-23-
I and the partisan-activities clause in White II, the endorsement clause was not

adopted for the purpose of preserving the openness of a judge to differing legal

arguments. See White I, 536 U.S. at 778; White II, 416 F.3d at 756. And, we do not

believe that a judicial candidate's endorsement of another candidate indicates that as

a judge he or she will be any less open to alternate legal conceptions of a case. 

Moreover, while the endorsement clause may be an indicator of views on issues, "an

affirmative enunciation of views during an election campaign more directly

communicates a candidate's beliefs." White II, 416 F.3d at 758. "If, as the Supreme

Court has declared, a candidate may speak about her views on disputed issues, what

appearance of 'impartiality' is protected by keeping a candidate from simply

associating with a party that espouses the same or similar positions on the subjects

about which she has spoken?" Id. Finally, if, as this court has determined, a candidate

may associate with a political party without affecting the judge's openness to legal

views, then what actual or apparent impartiality is protected by keeping the candidate

from associating with one or more individuals on the basis of their stated views? 

Given this "woeful underinclusiveness" of the endorsement clause, "it is apparent that

advancing judicial open-mindedness is not the purpose that 'lies behind the prohibition

at issue here.'" Id. (quoting White I, 536 U.S. at 779).

c. Other Purported Interests

The appellees contend that the endorsement clause is narrowly tailored to two

other interests not addressed in either of the previous White decisions. The first such

interest is the matter of preventing a judicial candidate from "abusing the prestige of

office." To the extent that this interest is compelling, the endorsement clause is not

narrowly tailored to address such an interest because it prevents both judicial

candidates who are currently judges–those who could abuse the office–and candidates

who are not currently judges–persons who cannot abuse any office because they

currently hold no office–from making endorsements. Accordingly, the clause is

overinclusive in meeting such an interest and fails strict scrutiny.

-24-
The second interest proffered by the appellees is an interest in "protecting the

political independence of the judiciary."13 The very fact that Minnesota has chosen

to elects its judges is indicative of its desire to promote an electorally accountable

judiciary. Accordingly, Minnesota, by its current system, has itself created a

politically motivated judiciary, bedeviling any claim it has in removing politics from

the process. Moreover, how an interest in "protecting the political independence of

the judiciary" is any different from an interest in preserving impartiality eludes us. 

See White I, 536 U.S. at 775 n.6 (collapsing a purported interest in an "independent

judiciary" with an interest in impartiality). Thus, if impartiality cannot save the

clauses, neither can an interest in "protecting the political independence of the

judiciary."

13Relying on a notion of separation of powers, the White II dissent crafted a

similar independence interest noting that "[t]he separation of powers interest is a

concern for institutional independence that is distinct from concern for impartiality in

any of the senses identified by [White I]." White II, 416 F.3d at 773 (Gibson, J.,

dissenting). The White II court, however, rejected such a "separation of powers"

interest as a compelling interest. Id. at 752 n.7. In particular, we noted two reasons

why judicial independence is not a compelling interest: (1) no other court "has ever

determined that a state's interest in maintaining a separation of powers is sufficiently

compelling to abridge core First Amendment freedoms;" and (2) "nothing in our

opinion . . . serve[d] to further blur any existing lines between the judicial, legislative

and executive branches of Minnesota state government." Id. Today, appellees

continue to rely on the separation of powers to support the endorsement clause, yet

they only cite one unreported district court case in which such an interest was even

discussed: Carey v. Wolnitzek, No. 3:06-36-KKC, 2008 WL 4602786, at *9 n.10

(E.D. Ky. Oct. 15, 2008), aff'd in part, vacated in part, Nos. 08-6468/6538, 2010 WL

2771866 (6th Cir. July 13, 2010). However, undermining their assertions is the fact

that the Wolnitzek court itself refused to identify a separate interest in judicial

independence, noting that any such interest was "subsumed within the compelling

state interests in prohibiting judicial bias against parties and preserving judicial openmindedness." Id. Thus, we still find no court which finds the interest in maintaining

a separation of powers sufficient to abridge core First Amendment expression. And,

just as was the case in White II, nothing in our opinion today serves to blur the lines

between the three branches of government.

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2. Personal Solicitation Clause

The personal solicitation clause of Canon 4.1 provides, in relevant part, that a

judicial candidate shall not "personally solicit or accept campaign contributions other

than as authorized by Rules 4.2 and 4.4." 52 Minn. Stat. Ann., Code of Judicial

Conduct, Canon 4.1(A)(6). Canons 4.2 and 4.4 permit a candidate to solicit

contributions under certain circumstances. First, the candidate's campaign committee

may solicit funds on behalf of the candidate but may not disclose to the candidate the

names of contributors. Id. at Canon 4.2(B)(1) & 4.4(B)(3). Second, in response to

White II, Canon 4.2(B)(3) permits a candidate to 

(a) make a general request for campaign contributions when speaking

to an audience of 20 or more people;

(b) sign letters, for distribution by the candidate's campaign

committee, soliciting campaign contributions, if the letters direct

contributions to be sent to the address of the candidate's campaign

committee and not that of the candidate; and

(c) personally solicit campaign contributions from members of the

judge's family, from a person with whom the judge has an intimate

relationship, or from judges over whom the judge does not

exercise supervisory or appellate authority.

Id. at Canon 4.2(B)(3). As stated previously, we review the validity of these clauses

only as-applied to Wersal's desire to solicit contributions from non-attorneys.

In White II, we held the solicitation clause subject to strict scrutiny because (1)

it restricted speech based wholly upon the subject matter of the speech and (2) it

restricted the amount of funds a judicial candidate is able to raise, burdening political

speech. 416 F.3d at 763-64. Although Minnesota has amended the solicitation clause

in an effort to more narrowly tailor it to the state's interest in preserving judicial

impartiality, the clause still serves as a content-based restriction which burdens core

-26-
political speech. Under strict scrutiny, the appellees must prove that applying the

personal solicitation clause to Wersal's efforts to solicit from non-attorneys furthers

a compelling interest and is narrowly tailored to achieve that interest. See FEC v.

Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007).

a. Unbiased Judges

"Keeping candidates, who may be elected judges, from directly soliciting

money from individuals who may come before them certainly addresses a compelling

state interest in impartiality as to parties to a particular case." Id. at 416 F.3d at 765. 

Moreover, the solicitation of funds may in fact create the appearance of impropriety

in terms of the appearance of a quid pro quo. And, pursuant to Caperton, "there is a

serious risk of actual bias . . . when a person with a personal stake in a particular case

ha[s] a significant and disproportionate influence in placing the judge on the case by

raising funds [for the judge's campaign] . . . when the case was pending or imminent."

129 S. Ct. at 2263-64. Accordingly, when judicial candidates fundraise, there is a risk

that the candidate will be biased towards contributors and against non-contributors. 

Such a risk, however, inheres in the very practice of judicial elections. See White I,

536 U.S. at 789-90 (O'Connor, J., concurring) ("[T]he cost of campaigning requires

judicial candidates to engage in fundraising. Yet relying on campaign donations may

leave judges feeling indebted to certain parties or interest groups."). In other words,

as long as Minnesota chooses to elect its judges using a system of private financing,

it will be faced with the concern that contributions may impair at least the appearance

of a judge's impartiality.

We note that the personal solicitation clause, as amended, is certainly more

narrowly tailored to an interest in impartiality than was its predecessor. Yet, "[i]t

seems unlikely . . . that a judicial candidate, if elected, would be a 'judge [who] has a

direct, personal, substantial, pecuniary interest in reaching a conclusion [for or]

against [a litigant in a case],'" based on whether the judicial candidate had solicited

that litigant for a contribution. White II, 416 F.3d at 765 (third, fourth and fifth

-27-
alterations in original) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)). This is

because such a risk comes not in the mere solicitation–the "ask"–but rather in the

resulting contribution. As we noted in White II, the real due process harm comes not

from the fundraising itself, but rather from a judicial candidate being able to trace

contributions back to individual donors. White II, 416 F.3d at 765; see also Weaver

v. Bonner, 309 F.3d 1312, 1323 (11th Cir. 2002) ("Successful candidates will feel

beholden to the people who helped them get elected regardless of who did the

soliciting of support."). Accordingly, restricting a candidate from personally soliciting

funds does not address the state's interest in a non-biased judiciary. Indeed, the

personal solicitation clause is underinclusive in addressing such an interest because

the Canon permits the candidate's agent–the committee–to solicit funds, but prohibits

the candidate from personally soliciting the same funds. Since the identity of the

solicitor is irrelevant to the candidate's ultimate bias toward a party, Minnesota's rules

on personal solicitation are not narrowly tailored to serve this interest. See Weaver,

309 F.3d at 1322-23 (noting that the risk that a judge "will be tempted to rule a

particular way because of contributions . . . is not significantly reduced by allowing

the candidate's agent to seek these contributions . . . on the candidate's behalf rather

than the candidate seeking them himself").

Minnesota has already provided a less restrictive alternative to prevent the

candidate from tracing funds. Specifically, Canon 4 provides that a judicial candidate

shall "take reasonable measures to ensure that the candidate will not obtain any

information identifying those who contribute or refuse to contribute to the candidate's

campaign." 52 Minn. Stat. Ann., Code of Judicial Conduct, Canon 4.2(A)(5). Canon

4 also specifically provides that a candidate may not "personally . . . accept campaign

contributions," id. at Canon 4.1(A)(6), and prohibits the campaign committee from

disclosing the identity of contributors to the candidate, id. at Canon 4.4(B)(3). And,

Wersal does not challenge these requirements and prohibitions. We believe that a

candidate could be allowed to make one-on-one solicitations without learning the

identity of contributors. This would effectively insulate the candidate from biasproducing knowledge and would be a less restrictive alternative than a total ban on all

-28-
face-to-face fund requests. Accordingly, the solicitation clause's categorical ban on

solicitations is not narrowly tailored to serve the end of unbiased judges.

Nonetheless, the appellees maintain that soliciting door-to-door poses an acute

risk because through such on-the-spot canvassing, a judicial candidate will be able to

tell whether an individual is likely to contribute or not. We think not. While it may

be possible that a judicial candidate through direct contact may be able to tell whether

a person is likely to contribute or not, Canon 4 requires that the candidate take

reasonable measures to ensure that the candidate will not learn whether the person

actually contributed. In any event, we think it highly unlikely that after such a fleeting

encounter, a candidate will remember which solicited person indicated a likelihood

of contributing to the campaign or indicated a refusal to do so.

Finally, to the extent that Minnesota is rightly concerned with personal

solicitations and campaign contributions that affect the public's confidence in an

unbiased judiciary, the least restrictive means of preventing such harm is recusal under

the standards of Canon 2.11 should the judge become aware of receipt of a litigant's

campaign contribution (or of his or her refusal to do so). Indeed, Wersal represents

that he would recuse himself from any proceeding in which a contributor is a party. 

As with the endorsement clause, recusal serves both to protect a litigant's due process

rights and a candidate's right of speech through receipt of campaign contributions. 

Since "it is our law and our tradition that more speech, not less, is the governing rule,"

Citizens United, 130 S. Ct. at 911, we think the Constitution favors stricter recusal

standards and fewer speech restrictions. Moreover, just as in Citizens United, the

personal solicitation clause is a "categorical ban[] on speech that [is] asymmetrical to

preventing quid pro quo corruption." Id. Accordingly, the application of the

solicitation clause to Wersal's desire to solicit from non-attorneys simply is not

narrowly tailored to address Minnesota's interest in impartiality defined as a lack of

bias for or against parties to a proceeding.

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b. Openmindedness

We next address whether allowing a judicial candidate to personally solicit

face-to-face or to groups of smaller than twenty people would "in some way damage

that judge's 'willing[ness] to consider views that oppose his preconceptions, and

remain open to persuasion, when the issues arise in a pending case.'" White II, 416

F.3d at 766 (alteration in original) (quoting White I, 536 U.S. at 778). Since the

provisions in Canon 4 prohibit the judge from knowing the identity of contributors or

being able to trace funds back to contributors, we find that it stretches credulity to

believe that solicitations will in some way affect a judge's willingness to consider

differing legal views. Accordingly, applying the personal solicitation clause to

solicitations addressed to non-attorneys is barely tailored, if at all, to affect the

openmindedness of a judge, and fails strict scrutiny.

3. Solicitation for a Political Organization or Candidate Clause

The solicitation for a political organization or candidate clause provides, in

relevant part, that a judge or candidate shall not "solicit funds for a political

organization or a candidate for public office." 52 Minn. Stat. Ann., Code of Judicial

Conduct, Canon 4.1(A)(4)(a). As we noted in the ripeness discussion above, Wersal's

challenge to this provision is only ripe to the extent that the clause restricts him from

soliciting money from non-attorneys for his own candidacy. Accordingly, we review

this clause only to that extent. Because we have already addressed the fact that

restricting a candidate from soliciting contributions from non-attorneys for his or her

own campaign does not meet the strictures of strict scrutiny, we simply incorporate

our earlier analysis here. And, we hold that the solicitation for a political organization

or candidate clause, to the extent it prohibits Wersal from soliciting funds for his own

campaign from non-attorneys, fails strict scrutiny review.

-30-
III. CONCLUSION

In White I, the Supreme Court struck down the announce clause as violating a

judicial candidate's free speech rights. Similarly, in White II, we held that the

partisan-activities and solicitation clauses did not survive strict scrutiny and thus

violated the First Amendment. Today, after once again considering Minnesota's Code 

of Conduct, we find that the endorsement, personal solicitation, and solicitation for

a political organization clauses similarly fail strict scrutiny. We therefore reverse the

district court, and remand with instructions to enter summary judgment for the

appellant.

BYE, Circuit Judge, dissenting.

I respectfully dissent. The Court today invalidates provisions of the Minnesota

Code of Judicial Conduct prohibiting judicial candidates, including sitting judges,

from publicly endorsing other candidates for public office and personally soliciting

campaign contributions. Broadly speaking, the Court makes two fundamental errors

in its analysis. First, the majority consistently undervalues Minnesota’s compelling

interest in promoting impartiality and the appearance of impartiality in the Minnesota

judicial system. Second, the majority misapprehends the extent to which the

provisions of the Code of Judicial Conduct at issue today are both necessary and

narrowly tailored to Minnesota’s critical interests. In striking down Minnesota’s

judicial endorsement and solicitation restrictions, the Court today has unnecessarily

weakened our courts–and ultimately, I fear, weakened our democracy.

I

As a preliminary matter, I disagree with the majority’s conclusion that appellant

Gregory Wersal’s challenge to Rule 4.1(A)(4) of the Minnesota Code of Judicial

Conduct (Code) is ripe for disposition. “Ripeness is demonstrated by a showing that

a live controversy exists such that the plaintiffs will sustain immediate injury from the

-31-
operation of the challenged [action], and that the injury would be redressed by the

relief requested.” Employers Ass’n, Inc. v. United Steelworkers, 32 F.3d 1297, 1299

(8th Cir. 1994).

At the district court, Wersal argued Rule 4.1(A)(4), which, in part, bars a

judicial candidate from “solicit[ing] funds for a political organization or a candidate

for public office,” prevented him from soliciting funds for his own campaign, because

his own campaign is a “political organization” within the meaning of the rule. The

district court held that by reading Rule 4.1(A)(4) in context with the surrounding

rules, nothing in Rule 4.1(A)(4) prevented Wersal from soliciting funds (as allowed

by the remaining rules) for his own campaign committee. Wersal v. Sexton, 607

F.Supp.2d 1012, 1018 (D. Minn. 2009).

After the district court ruled, but before we heard this appeal, the Minnesota

Supreme Court amended the Code to state that “[f]or purposes of this Code, the term

[political organization] does not include a judicial candidate’s campaign committee

created as authorized by Rule 4.4.” See Code Terminology Section. Thus, without

a colorable argument that his campaign committee qualifies as a political organization,

Wersal modified his argument on appeal; Wersal now argues that Rule 4.1(A)(4)’s

ban on solicitation for “a candidate for public office” operates to prevent him from

soliciting funds for his own campaign. I agree with the majority that Wersal is a

candidate for public office under the plain meaning of the phrase, but this point should

not end our analysis. While Wersal himself is a candidate for public office, his

campaign committee is surely not. As illustrated by Rule 4.4, the campaign

committee is an entity separate and distinct from the judicial candidate himself, often

serving as a buffer between the judicial candidate and some of the day-to-day

campaign activities. For example, Rule 4.4(B)(3) states that “[a] judicial candidate

. . . shall direct his or her campaign committee . . . not to disclose to the candidate the

identity of campaign contributors . . . .”

-32-
To be sure, if Wersal were seeking to solicit contributions and operate his

campaign without a campaign committee, then we would have no choice but to

confront the constitutionality of Rule 4.1(A)(4). But, as the majority acknowledges,

Wersal does not challenge the provisions of the Code involving the use of a campaign

committee. Therefore, I would conclude that Wersal’s challenge to Rule 4.1(A)(4) is

not ripe. Nothing in the Rule–neither the ban on soliciting funds for “a political

organization” nor the ban on soliciting funds for “a candidate for public

office”–operates to prevent Wersal from soliciting funds for his campaign committee,

which is all Wersal seeks to do. By reaching out to partially invalidate Rule

4.1(A)(4), the majority today unnecessarily strikes down a provision of the Code

which is simply not implicated in this case. Cf. Edward J. DeBartolo Corp. v. Florida

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[W]here an

otherwise acceptable construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such problems unless such

construction is plainly contrary to the intent of Congress.”). Because Wersal’s

challenge to Rule 4.1(A)(4) is not ripe, I would leave review of Rule 4.1(A)(4) for

another day.

II

Although Wersal’s challenge to Rule 4.1(A)(4) is not ripe, the constitutionality

of the endorsement clause (Rule 4.1(A)(3)) and the solicitation clause (Rule 4.1(A)(6),

4.2(B)(3)(a)) is squarely before this Court. We review de novo a district court’s grant

of summary judgment, viewing the evidence in the light most favorable to the

nonmoving party. Dunning v. Bush, 536 F.3d 879, 885 (8th Cir. 2008). 

A

Because I am in basic agreement with the majority’s identification of the

governing constitutional framework, I will not repeat it at length here. In brief,

Wersal argues the prohibitions Minnesota has placed on judicial candidates, barring

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them from endorsing other candidates for public office and from personally soliciting

campaign contributions, violate the First Amendment to the United States

Constitution. The First Amendment, made applicable to the states, see McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 336 n. 1 (1995), provides that “Congress shall

make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I. 

Because the Code’s prohibitions on endorsement and solicitation restrict speech by

reference to the content of the targeted speech, we must examine the challenged

provisions using an analytical framework commonly known as strict scrutiny. 

Republican Party of Minn. v. White, 536 U.S. 765, 774-75 (2002) (White I). Under

the strict scrutiny analysis, the state bears the burden of proving that the challenged

provisions are (1) narrowly tailored, to serve (2) a compelling state interest. Id.

B

Like the majority, I begin my analysis with an examination of the interests

served by Minnesota’s Code of Judicial Conduct.

Minnesota14 asserts several interests which it argues are compelling: (1)

maintaining judicial impartiality, defined as the lack of bias for or against either party

to a proceeding; (2) maintaining the appearance of judicial impartiality; (3) promoting

open-mindedness, defined as a willingness to consider views that oppose

preconceptions, and remain open to persuasion; (4) preventing candidates from

abusing the prestige of office; and (5) protecting the political independence of the

judiciary.

14Wersal sued every member of the Minnesota Board of Judicial Standards and

Minnesota Lawyers Professional Responsibility Board in his or her official capacity. 

For ease of reading, I will refer to the defendants–appellees here–in this case as

“Minnesota.”

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As we observed in Republican Party of Minnesota v. White, 416 F.3d 738, 749

(8th Cir. 2005) (en banc) (White II), precisely what constitutes a “compelling interest”

is not easily defined. The Supreme Court has alternatively described the concept as

an: “interest[] of the highest order,” “overriding state interest,” “unusually important

interest.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); McIntyre, 514 U.S. at 347;

Goldman v. Weinberger, 475 U.S. 503, 530 (1986) (O’Connor, J., dissenting). Some

cases have found an interest compelling based on policy grounds. For example, courts

have recognized compelling interests in apprehending highly mobile criminal

suspects, deterring murder, avoiding the harms of illicit drugs, realizing consumer

benefits in licensing requirements for professionals, and upholding the administration

of justice. See Stephen E. Gottlieb, Compelling Governmental Interests: An Essential

But Unanalyzed Term in Constitutional Adjudication, 68 B.U. L.Rev. 917, 935 n. 85

(1988) (collecting cases). Other examples of compelling government interests

recognized by the Supreme Court include “[p]ressing public necessity” during

wartime, see Korematsu v. United States, 323 U.S. 214, 216 (1944), combating

terrorism, see Holder v. Humanitarian Law Project, --- S.Ct. ----, 2010 WL 2471055,

at *23 (June 21, 2010), the need to remedy specific instances of past discrimination,

see Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277 (1986), attaining “student body

diversity” in higher education, see Grutter v. Bollinger, 539 U.S. 306, 325 (2003), and

maintaining “prison security and discipline,” see Johnson v. California, 543 U.S. 499,

512 (2005). Other cases have found a basis for recognizing a compelling interest in

“the realization of constitutional guarantees.” White II, 416 F. 3d at 750 (citations

omitted).

There is broad agreement that states have a compelling interest in employing

judges who are actually impartial. Indeed, due process requires that judges be

impartial. See, e.g., Tumey v. Ohio, 273 U.S. 510, 512 (1927). Actual impartiality

means a judge’s lack of bias for or against either party to a proceeding. White I, 536

U.S. at 775.

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With respect to Minnesota’s asserted interest in promoting the appearance of

impartiality, we have thus far provided little–too little–examination of the subject. 

During oral argument in this case, I asked Wersal’s counsel whether the state of

Minnesota has “a compelling interest here in maintaining the appearance of

impartiality set apart from the state’s interest in promoting actual impartiality?” 

Counsel responded, “Yes, I think they have both.” Notwithstanding the parties’

agreement on the subject, I want to take a moment to explore the meaning and

potential importance of Minnesota’s interest in promoting the appearance of

impartiality in the state’s judiciary.

Drawing from the “core” definition of impartiality recognized in White I, the

appearance of impartiality, as the phrase is used in this dissent, means the perception 

of a judiciary made up of judges who lack bias for or against a particular party (or

parties) to a given proceeding. To be sure, the concepts of actual and perceived

impartiality are related, but they are not entirely coextensive. For example, a

hypothetical judge who harbors a bias towards Catholics but shows no outward

manifestations of her bias lacks impartiality (at least in a case where one party is

Catholic), but may not create the appearance of impartiality. Likewise, a judge who

uses disrespectful language when addressing criminal defendants will likely be

perceived as lacking impartiality, even if the judge lacks an actual bias against any

particular party. Cf. Inquiry into Conduct of Blakely, 772 N.W.2d 516, 523-26 (Minn.

2009) (per curiam) (discussing the difference between actual and perceived

impropriety by a judge, and the appropriate sanction for each necessary “to protect the

public by preserving the integrity of the judicial system”); Buckley v. Valeo, 424 U.S.

1, 26-27 (1976) (discussing the differences between actual and perceived corruption

in our political system). Two features serve to distinguish the concepts of actual

impartiality and the appearance of impartiality. First, while the existence of actual

impartiality turns on a particular judge’s mental state, the appearance of impartiality

springs from the perceptions of people who see, hear, read about, or otherwise interact

with one or more judges in the judicial system. Second, while an examination of

actual impartiality will use a narrow lens, usually focusing on an individual

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assessment of one particular judge, an inquiry into the appearance of impartiality will

often focus on the aggregate: how the judiciary is perceived by the people it serves.15

Turning to the relative importance of maintaining the appearance of

impartiality, several sources help illuminate the compelling nature of Minnesota’s

interest in fostering the appearance of impartiality. There is no question that

maintaining the appearance of impartiality is a central pillar to the Minnesota Code

of Judicial Conduct, reflecting the Minnesota Supreme Court’s empirical judgment

on the relative importance of maintaining the appearance of impartiality in the state

judiciary. The Code states that “[i]nherent in all the Rules contained in this Code are

the precepts that judges, individually and collectively, must respect and honor the

judicial office as a public trust and strive to maintain and enhance confidence in the

legal system.” Code Preamble. In addition, judges are admonished to “avoid both

impropriety and the appearance of impropriety” and “aspire at all times to conduct that

ensures the greatest possible public confidence in their independence, impartiality,

integrity, and competence.” Id. The Constitution itself points in the same direction. 

Our law dictates that a mere appearance of bias, without a showing of actual bias, is

sufficient in some circumstances to violate the due process rights of litigants. See

Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2257 (2009) (holding that

a party’s due process rights are violated when “the probability of actual bias on the

part of the judge or decisionmaker is too high.”). Finally, relevant historical sources

evince a long-held view on the importance of maintaining the appearance of

impartiality in the judiciary. Writing in support of ratifying the newly-written United

States Constitution, Alexander Hamilton wrote:

15In this sense, the interest in maintaining the appearance of judicial impartiality

is a close cousin to the “weighty interest[]” in preventing the “appearance of

corruption,” which the Supreme Court described in Buckley as “stemming from public

awareness of the opportunities for abuse inherent in a regime of large individual

financial contributions.” Buckley, 424 U.S. at 27, 29.

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The benefits of the integrity and moderation of the judiciary have already

been felt in more States than one; and though they may have displeased

those whose sinister expectations they may have disappointed, they must

have commanded the esteem and applause of all the virtuous and

disinterested. Considerate men, of every description, ought to prize

whatever will tend to beget or fortify that temper in the courts: as no

man can be sure that he may not be to-morrow the victim of a spirit of

injustice, by which he may be a gainer to-day. And every man must now

feel, that the inevitable tendency of such a spirit is to sap the foundations

of public and private confidence, and to introduce in its stead universal

distrust and distress.

The Federalist No. 78 (Alexander Hamilton).

The “universal distrust and distress” Hamilton described can take hold in an

atmosphere where the public has lost confidence–rightfully or not–in the impartiality

of its judiciary. A perception of systemic bias can cause a chilling effect on the

exercise of legal rights: parties or potential parties “may be reluctant to expend time

and resources in a judicial system perceptibly stacked against them on account of who

they are.” Tobin A. Sparling, Keeping Up Appearances: the Constitutionality of the

Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the

Appearance of Bias, 19 Geo. J. Legal Ethics 441, 472 (2006). More broadly, it is not

an overstatement to say that public confidence in the judiciary is necessary to a

functioning democracy and civil society. One need not look very far beyond our

borders to see the consequences where judiciaries–rightfully or not–have lost their

reputation for delivering justice. Judicial institutions are replaced by less refined

methods of problem solving. Gangs, warlords, militias, and vigilante justice can

easily become de facto judges and juries. 

For the foregoing reasons, I would conclude, independent of the parties’

agreement, that Minnesota has met its burden of demonstrating a compelling state

interest in (1) maintaining actual judicial impartiality and (2) maintaining the

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appearance of judicial impartiality.16 Cf. Swift & Co. v. Hocking Valley Ry. Co., 243

U.S. 281, 290 (1917) (“[T]he court cannot be controlled by agreement of counsel on

a subsidiary question of law.”).

The mere identification of Minnesota’s compelling state interests, however,

does not, standing alone, justify the provisions of the Code Wersal challenges. Where

a state seeks to protect its interests through content-based speech restrictions, as

Minnesota does here, courts must engage in an exacting review, examining the extent

to which the challenged provisions are “narrowly tailored” to the identified interests. 

White I, 536 U.S. at 774-75. It is to that review I now turn.

C

As we stated in White II, “whether or not a regulation is narrowly tailored is

evidenced by factors of relatedness between the regulation and the stated

governmental interest.” 416 F. 3d at 751.

A narrowly tailored regulation is one that actually advances the state’s

interest (is necessary), does not sweep too broadly (is not overinclusive),

does not leave significant influences bearing on the interest unregulated

(is not underinclusive), and could be replaced by no other regulation that

could advance the interest as well with less infringement of speech (is

the least-restrictive alternative).

Id.

16Because I ultimately conclude that the provisions of the Code challenged in

this litigation are narrowly tailored to these two interests, I need not confront today

whether the remaining interests proffered by Minnesota are compelling.

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1

I turn first to the endorsement clause. Rule 4.1(A)(3) provides that a judge or

judicial candidate shall not “publicly endorse or, except for the judge or candidate’s

opponent, publicly oppose another candidate for public office.”

The endorsement clause advances the state’s interest in maintaining actual

judicial impartiality and the appearance of impartiality. When a judge or judicial

candidate endorses another candidate, the act of endorsement creates a risk that the

judge will not be impartial. There is a risk the judge will harbor a bias in favor of the

endorsed candidate and those who associate with or support that candidate. Equally

important, there is a risk the judge will harbor a bias against other candidates in the

same race as the endorsed candidate, and those who associate with or support the

candidates who did not receive the endorsement. Even more fundamentally, the act

of endorsement directly undercuts the state’s interest in maintaining the appearance

or impartiality. By moving past the role of mere participant in the political system

to the role of political power broker trading on the currency of his position, a judge

who gives political endorsements creates the perception of a judicial branch

beholden to political interests. Indeed, in a recent survey of Minnesotans, ninetyone percent thought “the courts are supposed to play a unique role in our democratic

system and should be free of political pressures;” only five percent believed “the

Minnesota State Courts are just like the Executive and Legislative branches of

government and should not be free of political pressures.” See The Minnesota 

Difference: The Minnesota Court System and the Public (2007), available at

http://www.courts.state.mn.us/documents/0/Public/Court_Information_Office/Min

nesota_Courts_Final_Report_FINAL.doc. By placing political pressures on the

endorsing judge, the endorsement effectively erodes the appearance of judicial

impartiality.

In addition, the endorsement clause does not sweep too broadly. The majority

first attempts to analogize the endorsement clause to the much broader announce

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clause struck down in White I. But the majority’s analysis on this point is seriously

flawed. The Supreme Court held that the announce clause, which stated that a

candidate for judicial office shall not “announce his or her views on disputed legal or

political issues,” was not narrowly tailored to the state’s interest in maintaining actual

impartiality or the appearance of impartiality. White I, 536 U.S. at 770. The Court

reasoned that the announce clause “d[id] not restrict speech for or against particular

parties, but rather speech for or against particular issues.” Id. at 776 (emphasis in

original). It seems plain enough that this case presents precisely the opposite scenario:

the endorsement clause restricts speech for or against parties, not issues.

The majority attempts to circumvent the clear hurdle presented by White I by

positing that the endorsement clause is really just another announce clause in disguise. 

To illustrate its point, the majority explains that an endorsement of Ronald Reagan for

President could convey a judicial candidate’s support for strict interpretation of the

Constitution. The majority’s point that speech can and does serve as a proxy for other,

underlying ideas is well taken. But, under the lens of strict scrutiny, our focus must

remain on the speech that is regulated by reference to its content. See Eu, 489 U. S.

at 222. To be sure, the endorsement clause is content-based, because the clause

prohibits judicial candidates from expressing the idea of endorsement itself, while

leaving unregulated speech on every other subject matter. But the endorsement

clause, unlike the announce clause, does not regulate underlying ideas conveyed by

the endorsement by reference to their content. With respect to a judicial candidate’s

views on strict interpretation of the Constitution, or abortion, or same-sex marriage,

or any other idea the judicial candidate wishes to convey, the endorsement clause is

entirely content-neutral. The candidate is free to state: “I support (or oppose) a strict

interpretation of the Constitution.” The candidate could even say “I support strict

interpretation, as articulated by Ronald Reagan.” The only idea the candidate is

barred from expressing is the idea of endorsement itself–an idea that does not burden

any other ideas or viewpoints on an unequal basis. The announce clause, by contrast,

directly regulated a large class of ideas according to their content, forbidding speech

on disputed legal or political issues, but leaving unregulated speech on all undisputed

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issues, as well as disputed issues not of a political or legal nature. See White I, 536

U.S. at 768.

The majority’s analysis thus effectively renders pointless the idea/party

distinction drawn in White I. Under the majority’s analysis, even a speech restriction

on statements showing bias against a party to a proceeding would fail strict scrutiny. 

Following the majority’s reasoning, such a restriction would also necessarily limit the

expression of secondary ideas conveyed by the statement of bias. For example, the

statement “I am biased against plaintiff Smith” could also theoretically convey a

judicial candidate’s view that the court system is overburdened by frivolous lawsuits. 

If, as the majority suggests, we must take account in our strict scrutiny analysis of all

possible secondary meanings of the statement of bias–even those not regulated by

reference to their content–then even a ban on speech showing bias towards a party

would be overinclusive with respect to a state’s compelling interest in judicial

impartiality. This is so because the ban on biased statements would impermissibly

limit, according to the majority’s analysis, the judicial candidate from expressing his

views on frivolous lawsuits. In contrast to the majority’s incorrect analytical

approach, the Supreme Court has consistently confined its strict scrutiny

overinclusiveness analysis to speech regulated by its content by the terms of the

speech restriction itself. For example, in Simon & Schuster, Inc. v. Members of New

York State Crime Victims Board, 502 U.S. 105 (1991) the Supreme Court struck

down a New York law preventing criminals from profiting by selling books describing

their crimes. Id. at 123. The Court held the law overinclusive with respect to New

York’s compelling interest in preventing criminals from profiting from their crimes,

as the law would apply to “such works as the Autobiography of Malcolm X,” Civil

Disobedience by Henry David Thoreau, as well as works by Martin Luther King, Jr. 

Id. at 121. The Court concluded that the law “clearly reaches a wide range of

literature that does not enable a criminal to profit from his crime.” Id. at 122.

Our focus, therefore, when asking whether the endorsement clause sweeps too

broadly, should not extend beyond the ideas regulated by the endorsement clause

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because of their content. With the proper legal standard in mind, I would conclude

the endorsement clause does not sweep too broadly. Because, as previously discussed,

every endorsement of a person carries the risk of bias, or the appearance of bias, the

endorsement clause targets precisely the speech most likely to implicate Minnesota’s

compelling interests.17

Nor is the endorsement clause underinclusive. The endorsement clause must

be read in concert with Rule 4.1(A)(10) of the Code, which states that “a judge or

judicial candidate shall not . . . make any statement that would reasonably be expected

to affect the outcome or impair the fairness of a matter pending or impending in any

court . . . .” By its plain terms, Rule 4.1(A)(10) prevents a judge or judicial candidate

from making any statement showing bias for or against any party, in either a pending

or impending proceeding, as such a statement would “impair the fairness” of the case. 

Rule 4.1(A)(10), together with the endorsement clause, ensures that no speech directly

bearing on a judicial candidate’s bias towards a party is left unregulated.

17The majority finds fault with the endorsement clause for the independent

reason that not all persons who receive endorsements will become parties in

Minnesota courts. The majority’s reasoning misses the mark in three respects. First,

any candidate for public office could become a party to a proceeding in Minnesota,

and it is impossible to determine beforehand who will appear in court as a party and

with what frequency. More importantly, the majority makes the faulty assumption

that a judge who makes an endorsement would only potentially be biased in favor of

the recipient of the endorsement herself. As previously discussed, such bias could

easily extend to the endorsee’s supporters and associates, as well as other candidates

who did not receive the judicial candidate’s endorsement, along with their friends and

supporters. Therefore, the risk of actual bias is much greater than the majority lets on,

even in cases where the endorsed candidate never appears as a party in court before

the judicial candidate. Finally, the majority, as it does throughout its opinion, ignores

the extent to which each and every endorsement creates the appearance of bias

irrespective of whether the endorsed candidate ever appears in court.

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The majority attempts to illustrate the endorsement clause’s underinclusiveness

by asserting that “a judicial candidate may endorse a public official or a potential

candidate for office so long as the endorsee has not yet officially filed for office.” 

Ante at 21. But the majority’s assertion is incorrect in two important respects. First,

in the vast run of cases, Rule 4.1(A)(10) will prevent a judicial candidate from

endorsing a public official. For example, a judicial candidate would be prevented

from “endorsing”18 a lame duck county sheriff or county attorney because doing so

would “impair the fairness of a matter pending or impending in any court,” as sheriffs

and county attorneys continually appear in court. Second, the majority assumes,

wrongly, that a potential recipient of an endorsement is not a “candidate for public

office” within the meaning of the endorsement clause until she “officially file[s] for

office.” Ante at 21. In the case of judicial candidates endorsing other judicial

candidates, the majority’s assertion is demonstrably false:

A person becomes a candidate for judicial office as soon as he or she

makes a public announcement of candidacy, declares or files as a

candidate with the election or appointment authority, authorizes or,

where permitted, engages in solicitation or acceptance of contributions

or support, or is nominated for election or appointment to office.

Code Terminology Section. Although the Code is silent on precisely when a nonjudicial candidate becomes a “candidate for public office,” I would construe the

endorsement clause’s “candidate for public office” language consistently with the

Code’s definition of a candidate for judicial office. In other words, a person becomes

a candidate for public office when he (1) makes a public announcement of candidacy,

(2) files, (3) authorizes or engages in solicitation, or (4) is nominated for office. Such

a construction helps alleviate the underinclusiveness identified by the majority. See

Edward J. DeBartolo Corp., 485 U.S. at 575 (avoidance canon of statutory

18Obviously the concept of endorsement here would mean something different

than an endorsement for office, as the public official, by hypothesis, is not a candidate

for public office.

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interpretation). In the narrow subset of cases where an “endorsement” of a person

would not be barred by either the endorsement clause or Rule 4.1(A)(10), the speech

is left unregulated precisely because these cases do not implicate Minnesota’s interests

in promoting impartiality or its appearance. Endorsing persons who are not involved

in current or impending litigation before any court and who are not running for public

office presents little risk of creating actual bias, and does not raise the same quid pro

quo and political independence concerns that would lead a reasonable person to

perceive a decreased appearance of judicial impartiality.

The majority also finds the endorsement clause underinclusive because, in the

majority’s words, “the endorsement clause would permit a candidate to endorse the

acts and policies of non-candidates [such as] businesses, labor unions, the ACLU or

any public officials not running for office.” But the absence of the hypothetical

speech restrictions outlined by the majority cannot be evidence of the endorsement

clause’s underinclusiveness because the speech restrictions described by the

majority would be unconstitutional. As an illustration, the American Civil Liberties

Union lists “free speech” as one of the organization’s “key issues,” stating that

“[s]ince 1920, the ACLU has worked to preserve our freedom of speech.” See

http://www.aclu.org/key-issues. If Minnesota attempted to prohibit judicial

candidates from echoing the ACLU and announcing their views that, for example,

they “work to preserve our freedom of speech,” it is beyond dispute that the

prohibition would violate judicial candidates’ First Amendment rights. See White I,

536 U.S. at 770. Indeed, the speech restrictions on “acts and policies of noncandidates” suggested by the majority would be woefully overinclusive according to

the majority’s own analysis contained just one page earlier in its opinion! I would not

require Minnesota to violate the Constitution in order to craft a constitutional

endorsement clause.

Finally, I disagree with the majority’s conclusion that recusal would adequately

address Minnesota’s interests in maintaining judicial impartiality and the appearance

of judicial impartiality. In White II, we relied, in part, on the availability of recusal

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as a less-restrictive alternative in striking down the prior Code’s partisan activities

clause and parts of the solicitation clause. White II, 416 F. 3d at 754, 765-66. 

Implicit in our conclusion in White II was our understanding that recusals would not

be so frequent as to seriously disrupt the proper functioning of the judicial system. 

In contrast to White II, however, recusal is an inadequate remedy in a judicial system

where judges and judicial candidates are permitted to endorse each other and other

candidates for public office. As the district court observed, recusal is unworkable

“when a judge endorses an individual who is elected to a position where he or she is

frequently a litigant.” Wersal, 607 F. Supp. 2d at 1023. For example, if a district

court judge in a rural area endorsed the county sheriff and county attorney for reelection, the judge would be required to recuse himself in almost every criminal

case–and few, if any, other judges would be available to take over the case load. 

Similarly, if an appellate court judge endorsed a slate of district court judges, the

appellate court judge would have to recuse himself in every appeal reviewing the

judgment of any of the endorsed district court judges. The same is true of a judicial

candidate who endorsed prominent political figures in Minnesota, who are frequently

parties to judicial proceedings. See, e.g., Coleman v. Franken, 767 N.W.2d 453

(Minn. 2009); Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010).

In short, a system of open endorsements would create a tangled web of conflicts

that could not be solved by recusals. Perhaps more fundamentally, even if judges

managed to recuse themselves whenever an endorsee was a party (or witness) to a

proceeding, the recusals would do little to change the perception that the judiciary as

a whole lacks impartiality. Perceptions of bias would be justified in cases involving

not just endorsees, but also their friends, family, associates, supporters, opposing

candidates, and their supporters. Some citizens might conclude, reasonably, that the

judicial system is simply too compromised by partisan politics, and resolve their

disputes through alternative means. Although recusals would undoubtably mitigate

bias in some instances, they would not–in a climate of pervasive endorsements by

judges and judicial candidates–protect Minnesota’s interests in maintaining

impartiality and the appearance of impartiality at even a tolerable level.

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For the forgoing reasons, I would conclude that Minnesota has met its heavy

burden in demonstrating that the endorsement clause is narrowly tailored to the state’s

compelling interests. In so concluding, I would join what was, before today, the

unanimous judgment of state and federal courts affirming the constitutionality of

judicial endorsement prohibitions. See Siefert v. Alexander, --- F.3d ----, No.

09-1713, 2010 WL 2346659, at *7 (7th Cir. June 14, 2010); In re Matter of William

A. Vincent, Jr., 172 P.3d 605, 606, 608-09 (N.M. 2007) (upholding a judicial canon

that prohibited a judge or judicial candidate from “publicly endors[ing] or publicly

oppos[ing] a candidate for public office through the news media or in campaign

literature” finding that the clause was “narrowly tailored to serve the State’s

compelling interest in a judiciary that is both impartial in fact and in appearance”); In

re Matter of Ira J. Raab, 793 N.E.2d 1287, 1292 (N.Y. 2003); Yost v. Stout, No.

06-4122-JAR, slip op. at 12 (D. Kan. Nov. 16, 2008) (upholding endorsement clause

because provision “restricts a judge or judicial candidate from publicly endorsing

other candidates for public office; it does not restrict speech concerning disputed

political issues.”).

2

I turn next to the solicitation clause. Rule 4.1(A)(6) of the Code bars judges

and judicial candidates from “personally solicit[ing] or accept[ing] campaign

contributions other than as authorized by Rules 4.2 and 4.4.” Rule 4.2(B)(3)(a)

permits a judge or judicial candidate to “make a general request for campaign

contributions when speaking to an audience of 20 or more people.” In addition, Rule

4.2(B)(3)(c) permits a judge or judicial candidate to “personally solicit campaign

contributions from members of the judge’s family, from a person with whom the

judge has an intimate relationship, or from judges over whom the judge does not

exercise supervisory or appellate authority.” However, as previously discussed, the

Code does not allow what Wersal seeks to do: personally solicit campaign

contributions by walking door-to-door and making phone calls.

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As a preliminary matter, I disagree with the majority’s decision to analyze

Wersal’s challenge to the Code’s solicitation clause as an as-applied, rather than

facial, challenge. In White II, we sustained a facial challenge to the solicitation clause

(as then written) despite the fact that the challenge was limited to the clause’s

prohibition on soliciting contributions from large groups and using a candidate’s

signature on campaign committee literature. White II, 416 F. 3d at 765-66. Further,

the majority predicates its decision to analyze the solicitation clause as-applied on the

alleged fact that Wersal wishes to solicit funds only from non-attorneys. Ante at 13,

26. Nowhere in the record does Wersal state, or even imply, that he would limit his

solicitation entirely to non-attorneys. On the contrary, Wersal states he wishes to

“personally solicit contributions from potential donors both by going door-to-door

[and] making personal phone calls.” Wersal does state that he “does not wish to

solicit funds from those he knows to be attorneys,” but Wersal would undoubtably

encounter persons whom he does not know to be attorneys in the course of his

proposed solicitation. Without any suggestion to the contrary from Wersal, it is

unreasonable to infer from the facts in the record before us that Wersal only intends

to solicit funds from non-attorneys. See Dunning , 536 F.3d at 885 (in reviewing

summary judgment orders, appellate court must view the evidence in the light most

favorable to the nonmoving party).19

Turning to the merits, I would conclude the solicitation clause furthers

Minnesota’s compelling interest in maintaining the appearance of judicial impartiality. 

As Justice O’Connor observed in White I, “the mere possibility that judges’ decisions

may be motivated by the desire to repay campaign contributors is likely to undermine

19Wersal does state once in his brief that he wishes to personally solicit

campaign contributions only from non-attorneys. App. Br. at 55. It is axiomatic,

however, that appellate courts will “not take[] into consideration matters included in

the [a party’s] brief which were not before the trial court and are no[t] part of the

record on appeal.” Nelson v. Swing-A-Way Mfg. Co., 266 F.2d 184, 189 (8th Cir.

1959).

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the public’s confidence in the judiciary.” White I, 536 U.S. at 790 (O’Connor, J.,

concurring). Indeed, “there is no aspect of the electoral system of choosing judges

that has drawn more vehement and justifiable criticism than the raising of campaign

funds, particularly from lawyers and litigants likely to appear before the court.” 

Stretton v. Disciplinary Bd. of Supreme Court of Penn., 944 F.2d 137, 145 (3d Cir.

1991) (footnote omitted) (upholding prohibition on personal solicitation). And as the

Oregon Supreme Court observed:

The stake of the public in a judiciary that is both honest in fact and

honest in appearance is profound. . . . A judge’s direct request for

campaign contributions offers a quid pro quo or, at least, can be

perceived by the public to do so. Insulating the judge from such direct

solicitation eliminates the appearance (at least) of impropriety and, to

that extent, preserves the judiciary’s reputation for integrity.

In re Fadeley, 802 P.2d 31, 40 (Or. 1990) (upholding prohibition on personal

solicitation of funds).

Whether personal solicitation by judicial candidates impacts the appearance

of impartiality is an empirical question. Cf. Holder v. Humanitarian Law Project, ---

S.Ct. ----, Nos. 08-1498, 09-89, 2010 WL 2471055, at *19 (June 21, 2010) (“Whether

foreign terrorist organizations meaningfully segregate support of their legitimate

activities from support of terrorism is an empirical question.”). Recent polls found

that seventy percent of the public thinks raising money for their elections affects

judges’ rulings to a moderate or great extent. Kathleen Hall Jamieson and Michael

Hennessy, Public Understanding and Support for the Courts: Survey Results, 95

Geo. L.J. 899, 901 (2007). According to a 2002 written survey, forty-eight percent

of state supreme court judges believe that campaign contributions to judges have

“a great deal” or “some” influence on judges’ decisions. Greenberg Quinlan Rosner

Research & American Viewpoint, Justice At Stake State Judges Frequency

Questionnaire, Q.12 at 5 (2002). Turning the focus to Minnesota, a 2008 poll found

that fifty-nine percent of Minnesotans said that contributions have “a great deal”

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or “some” influence on judges. Decision Resources Ltd., Justice at Stake Study,

Minnesota Statewide, Q. 35 (January 2008). And forty-nine percent of 

Minnesotans thought that “individuals or groups who give money to judicial 

candidates in Minnesota get favorable treatment.” See The Minnesota Difference:

The Minnesota Court System and the Public (2007), available at

http://www.courts.state.mn.us/documents/0/Public/Court_Information_Office/Min

nesota_Courts_Final_Report_FINAL.doc.

The majority skips past this data and finds the solicitation clause overinclusive

because the risk of bias “comes not in the mere solicitation–the ‘ask’–but rather in the

resulting contribution.” Ante at 28. I disagree. At the outset, the majority’s statement

runs counter to our statement in White II that “[k]eeping candidates, who may be

elected judges, from directly soliciting money from individuals who may come before

them certainly addresses a compelling state interest in impartiality . . . .” 416 F.3d at

765. Additionally, when a judge or judicial candidate asks for money, one-on-one,

the potential donor is presented with an unseemly choice: contribute, and perpetuate

the appearance of impartiality, or decline to contribute, and risk retribution. As the

Supreme Judicial Court of Maine stated:

It is exactly this activity that potentially creates a bias, or at least the

appearance of bias, for or against a party to a proceeding. If a

contribution is made, a judge might subsequently be accused of favoring

the contributor in court. If a contribution is declined, a judge might be

accused of punishing a contributor in court.

In re Dunleavy, 838 A.2d 338, 351 (Me. 2003). Contrary to the majority’s assertion,

it is precisely the act of asking for money one-on-one that creates the appearance of

impartiality. And no matter what course of action the potential donor chooses, the

appearance of judicial impartiality is diminished. As the Seventh Circuit aptly stated,

“[a] direct solicitation closely links the quid–avoiding the judge’s future disfavor–to

the quo–the contribution.” Siefert, 2010 WL 2346659, at *30-31.

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Such a result inheres in the Supreme Court’s decision in McConnell v. Federal

Election Commission, 540 U.S. 93 (2003), overruled in part on other grounds,

Citizens United v. FEC, 130 S. Ct. 876, 886 (2010). There, the Supreme Court upheld

against a First Amendment challenge a provision of the Bipartisan Campaign Reform

Act of 2002 prohibiting (with limited exceptions) federal candidates and officeholders

from soliciting soft money contributions. Id. at 183-84; id. at 314 (Kennedy, J.,

concurring). Directly contrary to what the court holds today, the Supreme Court

stated that “soft-money donations at a candidate’s or officeholder’s behest give rise

to all of the same corruption concerns posed by contributions made directly to the

candidate or officeholder,” and “the value of the donation to the candidate or

officeholder is evident from the fact of the solicitation itself.” Id. at 182 (emphasis

added). See also Siefert, 2010 WL 2346659, at *31.

I also disagree with the majority’s assertion that less restrictive means exist to

protect Minnesota’s compelling interests. In Minnesota, judicial candidates are

required to “take reasonable measures to ensure that the candidate will not obtain any

information identifying those who contribute or refuse to contribute to the candidate’s

campaign.” Code Rule 4.2(A)(5). Although the rule banning judicial candidates from

learning the identity of donors certainly helps maintain the appearance of impartiality,

the efficacy of the rule is greatly undermined without an operative solicitation clause. 

As anyone familiar with retail politics can attest, potential donors will often interrupt

the pitch for money with an answer, or a door in the face. In other cases, verbal cues

and body language by the potential donor will leave the judicial candidate with a

strong impression of the potential donor’s likelihood of making a contribution. Thus,

the act of solicitation itself will, in many cases, significantly undermine Minnesota’s

goal of preventing the judicial candidate from learning the identity of those who

contribute or refuse to contribute.

Neither is recusal an adequate alternative to the solicitation clause. The recent

Caperton case illustrates why. In Caperton, a West Virginia jury returned a verdict

that found the defendants, A.T. Massey Coal Co. and its affiliates, liable for $50

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million in damages. Caperton, 129 S. Ct. at 2257 (2009). While the coal company’s

appeal was pending, Don Blankenship, Massey’s chairman and chief executive officer

spent over $2.5 million in support of a candidate running against an incumbent for a

seat on the Supreme Court of Appeals of West Virginia. Id. The candidate, Brent

Benjamin, won the election. Id. Later, when Massey’s appeal was heard by the

Supreme Court of Appeals of West Virginia, then-Justice Benjamin refused to recuse

himself and cast the deciding vote in the court’s decision reversing the $50 million

verdict. Id. at 2257-58. The United States Supreme Court ultimately held that the

Due Process Clause required Justice Benjamin to recuse himself. Id. at 2265. I cite

Caperton not for its legal holding, but rather as a cautionary tale illustrating two

points. First, judges whose contributions give rise to the appearance of partiality may

be reluctant to recuse themselves. Second, and most fundamentally, by the time a case

rises to the level of egregiousness where the Due Process Clause, by its own force,

requires recusal, the judiciary’s appearance of impartiality has already been severely

undermined. I would not force Minnesota to follow West Virginia’s path. The state’s

interest in maintaining the appearance of impartiality in its judiciary goes far beyond

protecting the absolute baseline of fundamental fairness required by due process. 

Having recognized Minnesota’s interest in maintaining the appearance of impartiality

as compelling, I would conclude that the solicitation clause is narrowly tailored to

serve this interest.

I would conclude, therefore, that the solicitation clause does not violate the First

Amendment.20

20Although I concluded that Wersal’s challenge to Rule 4.1(A)(4) was not ripe,

the majority reached the issue. If required to confront the merits, I would similarly

uphold Rule 4.1(A)(4) for the same reasons I would sustain the solicitation clause.

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III

Although not essential to the legal conclusions I reach today, I wish to comment

briefly on the development of our caselaw in this area.

Underlying today’s decision, as well as our prior decisions, are somewhat

competing philosophies with respect to judicial elections. These differences were

most evident in White I. In White I’s majority opinion, written by Justice Scalia, the

Court made clear that judicial elections should be played out under the same rules as

any other election for public office. By contrast, Justice Ginsburg, in her dissenting

opinion, presented a competing philosophy, which would “differentiate elections for

political offices, in which the First Amendment holds full sway, from elections

designed to select those whose office it is to administer justice without respect to

persons.” White I, 536 U.S. at 805 (Ginsburg, J. dissenting). Although White I may

not have provided the final word on the larger philosophical debate, it did provide us

with the appropriate framework for deciding constitutional challenges arising in the

context of judicial elections. Once the Court made the threshold choice to apply the

strict scrutiny framework to speech restrictions governing judicial elections, the result

in White I was clear: the suppression of views on disputed legal and political issues

is, as the Court noted, only tenuously related to any interest in maintaining an

impartial judiciary.

White II was this court’s first opportunity to apply the strict scrutiny framework

announced in White I to a relatively more difficult set of provisions in the Minnesota

Code of Judicial Conduct. I joined this court’s opinion in White II because I

concluded that Minnesota’s ban on partisan activities and solicitation from large

groups, although perhaps important, were not essential to the state’s interests in

maintaining judicial impartiality or its appearance.

In parting ways with the court today, I note my increasing discomfort with the

court’s analytical approach. As I see it, the court’s analysis, at the most basic level,

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amounts to an examination of whether a given speech restriction placed on judges is

essential–in every case–to fully realize the protections of due process. Without

prejudicing the outcome of future challenges, no speech restriction, whether it is

imposed on judicial candidates or simply judges, is essential to due process in every

case. The majority’s approach, in my view, significantly discounts the role states play

in maintaining a judicial system that serves its people with a higher standard of

fairness and impartiality. Although the Constitution guarantees a minimum standard

of fundamental fairness, Minnesota has endeavored to hold itself to a higher standard. 

Implicit in the majority’s opinion is the notion that any effort to maintain judicial

impartiality or its appearance beyond what the Constitution requires is nonessential

and expendable. To be sure, White I counsels us to review restrictions on speech with

exacting scrutiny. But where a state has crafted its restrictions carefully to maintain

a fair and impartial judiciary, in both practice and appearance, as Minnesota has done

here, the First Amendment must yield.

IV

For the foregoing reasons, I respectfully dissent.

______________________________

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