Judicial Speech Codes: Supreme Court Review of Republican Party of Minnesota v. Kelly

October 1, 2002

Lillian R. BeVier, David McGowan, Erik S. Jaffe

MS. GRYPHON: Republican Party of Minnesota v. Kelly arose when Mr. Wersal, who was running for the Minnesota Supreme Court, filed an action in District Court. He did so after running a campaign during which he publicly advocated strict construction and criticized several opinions of the Minnesota Supreme Court. Among other things, he challenged a canon of the Minnesota Code of Judicial Conduct. That canon prohibited a judicial candidate from expressing any views on any disputed legal or political issue. Mr. Wersal has argued that this provision, usually referred to as the Announce Clause, violates the First Amendment of the United States Constitution. The District Court responded by construing the Announce Clause very, very narrowly, construing the clause as applying only to matters likely to actually come before the candidate if elected to judicial office. The provision was upheld. The plaintiffs appealed, and the 8th Circuit affirmed in a split decision, and certiorari to the U.S. Supreme Court was made and granted last year. In the words of one panelist, this case was about where free speech meets due process. How can we ask candidates to run for office and then prohibit them from announcing their views on disputed issues? On the other hand, doesn’t the state have a compelling interest in maintaining the integrity of its judiciary for the benefit of the parties who come before it? Our first distinguished panelist today is Mr. Erik Jaffe. He is a practicing attorney in the area specializing in Supreme Court advocacy and other appellate advocacy and former law clerk for Justice Clarence Thomas and Judge Douglas Ginsburg of the D.C. Circuit. Mr. Jaffe practiced as an associate with Williams & Connolly for a number of years and now maintains his own practice. He has offered briefs for numerous Supreme Court cases, including most recently an amicus brief in Republican Party of Minnesota v. Kelly.

Judicial Speech Codes: Supreme Court Review of Republican Party of Minnesota v. Kelly