A Story about the Abuse of Power and the Stealing of Elections
By Greg Wersal

When most people go to vote, they have no idea who the judicial candidates are or why they should vote for them. This doesn’t happen by accident. It happens by design. The judges who created this system want it to work that way. This is a story about how the judges of the Minnesota Supreme Court have abused their power and stolen elections.

The Minnesota Supreme Court got control of the election system because they control attorney licenses. If an attorney engages in unethical conduct, the Court will take away a lawyer’s license to practice law. The problem is that the Court said that normal campaign conduct was “unethical” conduct.

In a normal election, you would expect the candidate to tell you their views on legal and political issues. Then you, as a voter, would be able to make an intelligent choice when you vote. But the judges created a rule that it was unethical for a judicial candidate to state his views on legal and political issues.

In a normal election, you would expect the candidate to raise money so that he could get his message out to the public. But the Minnesota Supreme Court created a rule that made it unethical for judicial candidates to personally solicit campaign funds. These rules, created by the Minnesota Supreme Court, made it virtually impossible for a challenger to win against an incumbent judge. In a real sense these elections were sham elections. I hope to convince you they were stolen elections. These elections did not serve the public, but only served the interests of the incumbents who wanted to maintain their positions of power. Neither statutory law nor the Minnesota Constitution gave the Minnesota Supreme Court the power to control these elections. The Minnesota Constitution, in fact, gives the power over judicial election to the Legislature, not the court. “W]ithout apparent constitutional or statutory authority, the Minnesota Supreme Court has stepped into the legislative arena in an attempt to regulate the political climate of statewide elections, an authority seemingly granted only to the Minnesota legislature under its plenary powers. Minn. Const. art. 6, § 9; Minn. Stat. § 490.16; Minn. Stat. § 480.05. See Minn. Stat. §§ 200.01 et seq. (Minnesota legislature's enactments regarding statewide elections).” White ll

Despite these rules, Greg Wersal said that he would run for office in 1998 and began speaking at political party conventions throughout 1996 and 1997. Word that Greg Wersal was speaking at political conventions reached the Minnesota Supreme Court and they created new rules on 1/1/1998. The new rules prohibited judicial candidates from attending and speaking at a political party gathering and prohibited a judicial candidate from seeking, using or accepting a political party endorsement. Prior to adopting these rules, Greg Wersal attended a hearing before the Minnesota Supreme Court at which he argued that the proposed rules were unconstitutional infringements of Free Speech.

In March of 1998, Greg Wersal, with the Republican Party of Minnesota, began a lawsuit in federal court. In 2002, the U.S. Supreme Court struck down as a violation of Free Speech guaranteed by the First Amendment, the rule which prohibited judicial candidates from stating their views on legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002) – White l . After White l, the Minnesota Supreme Court appointed an Advisory Committee to make recommendations to the Court. The Eighth Circuit noted the following:

“The Minnesota Supreme Court did make some amendments to Canon 5 to bring the provisions into line with the Supreme Court's "announce clause" ruling in White. But it should also be noted that the Advisory Committee recommended the deletion of parts of the partisan-activities clause of Canon 5 because the Committee believed, as do we, that it is not narrowly tailored. Several members of the Committee also noted, as do we, that the clause is impermissibly underinclusive because it applies only to political parties, and not to interest groups. The Minnesota Supreme Court was not responsive to these recommendations, and the partisan-activities and solicitation clauses at issue here are the same now as when this litigation was commenced.” (White ll)

In 2005, the 8th Circuit Court of Appeals struck down, as infringements of Free Speech, the rules which prohibited judicial candidates from seeking a political party endorsement, attending political party gatherings, and personally soliciting campaign funds. Republican Party of Minnesota v. White, 416 F.3d 738 (2005) --White ll The 8th Circuit made clear its belief the Minnesota Supreme Court had designed its election rules to favor the incumbent judges.

When a state engineers its governmental structure or processes in a way that curtails liberties guaranteed by the Constitution, that presumption of state self-determination is replaced, in this case, by a careful–even critical–judicial inquiry fashioned by the particular liberty at issue. If Minnesota sees fit to elect its judges, which it does, it must do so using a process that passes constitutional muster. White ll

Given this "woeful underinclusiveness" of the partisan-activities clause, it is apparent that advancing judicial openmindedness is not the purpose that "lies behind the prohibition at issue here."9 Id. at 779. . . . . Rather, the fruits of Canon 5 appear to bear witness to its remarkably proincumbent character. White ll

After the White ll decision, Minnesota could have had free, open and competitive elections. But once again the Minnesota Supreme Court created more rules -- more unconstitutional rules. Within months of this decision, the Minnesota Supreme Court created a new rule. The new rule stated the judicial candidates could personally solicit campaign funds, but only if there were 20 or more people in the audience.

Once again, Greg Wersal had attended a hearing before the Court had adopted the rule and argued that the proposed rule was unconstitutional. As drafted, the rule would even make it unethical conduct for a candidate to ask his spouse for money unless he first brought 19 additional people into his home. Greg Wersal began yet another lawsuit in federal court. In the midst of the litigation the Minnesota Supreme Court changed its rules again. While leaving intact the rule of 20, they created exceptions for the candidate’s spouse and friends.

On July 29, 2010, the 8th Circuit Court of Appeals struck down the rule which prohibited personal solicitation of campaign funds as an infringement of Free Speech guaranteed by the First Amendment. Also struck down was a rule that prohibited judicial candidates from endorsing other candidates for office. (Wersal v. Sexton) The Incumbent Designation

The incumbent designation on the ballot clearly gives the incumbent an unfair advantage. The incumbent designation is found only in Minnesota’s judicial elections. The Minnesota Supreme Court could have resolved this issue in 2008 when the issue was brought before them – but they issued a decision that permitted the practice to continue. In 2010, Greg Wersal filed a lawsuit in federal court challenging the provision in Minnesota law, which places the word “incumbent” on the judicial election ballot next to the name of the incumbent judge. Oral argument was scheduled before the 8th Circuit Court of Appeals on 9/20/2010. No decision has been rendered at this time, though Greg Wersal hopes for a decision before the elections scheduled for 11/2/10. The case is called Robbins v. Ritchie.

The Constitutional Amendment

After the U. S. Supreme Court decision, the judges in the Minnesota Supreme Court started pushing for a constitutional amendment that would eliminate the judicial elections Minnesota has had since its inception as a state. The proposed constitutional amendment would create a system where all judges would be appointed by the Governor. (Of course, all the current judges would be grandfathered in to the new system.) Greg Wersal has testified against this proposed constitutional amendment at numerous legislative hearings calling it “constitutional malpractice.” There are numerous problems with the proposal.

Here are just three of the problems.

A.  There is no check and balance on the power of the Governor to appoint. The appointments would most likely be the political cronies of the Governor – not necessarily a group known for excellence in the law. Because the bill does not contain mandatory merit selection, the District Court Judges’ Association opposes the bill.

B.  The judicial branch would, for all practical purposes, be unaccountable to the public. The proposed Judicial Performance Evaluation Commission “may not evaluate judicial performance based on substantive legal issues or opinions that are subject to standard appellate processes.” (Lines 8.30-8.32 of Sen. File 70) Almost everything a judge does is subject to appellate review. So the very thing the public would expect the commission to consider – the judge’s decisions – are off bounds. The Commission is told to evaluate the judge on factors such as integrity, impartiality, respect for litigants, communication skills, and punctuality. (Lines 8.28-8.30 of Sen. File 70) Who cares if the judge is punctual or has good communication skills, if he is failing to follow the sentencing laws and allowing child molesters onto the streets that should be sent to prison?

C.  The proposal, as drafted, appears to violate the 14th Amendment Sec. 2 which provides that when the right to vote for judicial officers in a state “is denied,” “or in any way abridged,” a state will lose its representation in the House of Representatives. This in turn could affect the number of Minnesota’s presidential electors, which is based on the number of Senators and Representatives from each state. Before we jump off the precipice of a constitutional amendment, we need to appreciate just how far we may fall.

Resignations, Appointments, and the Office of Chief Justice

We have not had an election for Chief Justice since 2000. Kathleen Blatz was initially appointed Chief Justice in 1998 and then elected in 2002 (unopposed). She was supposed to stand for election in 2006, but she resigned before the end of her term and the Governor appointed Russell Anderson. Russell Anderson was supposed to stand for election in 2008. In January 2008, Greg Wersal announced he was going to run for Chief Justice and Anderson announced his resignation 3 weeks later. The Governor appointed Eric Magnuson to fill the vacancy and he was supposed to stand for election in 2010. Earlier this year, Greg Wersal announced he was going to run for that position and 4 days later, Magnuson announced his resignation to be effective June 30, 2010. Even though this resignation was not effective until after the period for filing for office, Greg Wersal was not permitted to file.

Never before had Minnesota seen serial resignations and appointments that prevented elections. Greg Wersal, with others, filed a lawsuit. The court of original jurisdiction under Minnesota law is the Minnesota Supreme Court. In March of 2010, the Minnesota Supreme Court came out with a ruling that will permit serialized resignations followed by appointments without limit. There may never again be an election for Chief Justice in Minnesota. .

The ruling apparently overturns prior Minnesota case law that had created restrictions on the ability of a judge to resign for the purpose of defeating an election. The ruling treats judicial elections differently than all other offices where there might be a vacancy. The Minnesota Constitution permits the Governor to appoint if there are vacancies in the office of Attorney General or Secretary of State; but those appointments do not alter or postpone a scheduled election. Greg Wersal, and others, filed suit in federal court called Robbins v. Ritchie. Greg Wersal is arguing that the Secretary of State must allow persons to file for the office of Chief Justice and place the office on the ballot. The issue is now before the 8th Circuit Court of Appeals, which will hopefully issue a decision in time for the elections to be held Nov. 2, 2010, or order a special election.

Conclusion

When the average person goes to vote, they have no information on judicial candidates. This does not happen by accident; it happens by design. It happened because the Minnesota Supreme Court wanted it to happen or, as the 8th Circuit says, the Minnesota Supreme Court “engineered” an election system to be “remarkably proincumbent.” The Minnesota Supreme Court arguably did all of the following:

1.  Abused its power over attorney licenses
2.  Violated the Minnesota Constitution which gives the power to regulate elections to the Legislature
3.  Violated the First Amendment of the U. S. Constitution again and again and again
4.  Violated the trust of the public and the public’s right to free, open and competitive elections.
5.  Violated the oath of office to preserve and defend the U.S. Constitution and Minnesota Constitution which specifically calls for the election of judges
6.  Failed to follow the recommendations of the Court’s own Advisory Committee
7.  Failed to remove the word “incumbent” from the ballot which gives an unfair advantage to the incumbent

No incumbent judge of the Minnesota Supreme Court has been defeated in an election in over 50 years; no incumbent judges on the Minnesota Court of Appeals has been defeated in an election since the court was created in 1983. Were all these elections stolen and the beneficiaries of this theft the incumbent judges who were protecting their positions of power? You decide. Helen Meyer has been on the Minnesota Supreme Court since 2002. She was there after the U.S. Supreme Court decision and when the Advisory Committee told the Court its rules violated the U.S. Constitution. She was there when the Court created the unconstitutional rule of 20 to solicit campaign funds. She was there two years ago when the Court could have done the right thing and removed the word “incumbent“ from the ballot. She was there this year when the Court came up with a bizarre interpretation of the Minnesota Supreme Court that will allow serialized resignations and appointments and that may mean that the citizens of Minnesota never have an election for Chief Justice again. Finally, Helen Meyer supports a constitutional amendment that would strip the public of the right to vote for judges. The proposed constitutional amendment would make judges, for all practical purposes, unaccountable to the public and may violate the 14th Amendment to the U.S. Constitution.

Biography

Greg Wersal grew up on his family's farm in southwestern Minnesota near Redwood Falls. He graduated from St. John's University (summa cum laude) in 1977 and the University of Minnesota Law School (cum laude) in 1980. For the last 30 years, Greg has been in the private practice of law in Golden Valley and Belle Plaine Minnesota.

Greg Wersal is best known for his work on judicial elections, which resulted in a decision by the U.S. Supreme Court. (The Republican Party of Minnesota v. White) Greg believes that the best way to assure judicial accountability to the public is through free, open and competitive elections.

Greg Wersal's opinions on judicial elections and accountability have been published in newspapers and magazines and he has appeared on radio and television programs. He has testified before the Minnesota Legislature on numerous occasions -- primarily about the need for changes to the Board on Judicial Standards and in opposition to a constitutional amendment that would do away with free, open and competitive judicial elections and replace it with a system of appointments and retention elections. In both instances, the issue from Greg's point of view, is how do we enhance judicial accountability to the public?

Greg Wersal is married to Cheryl Wersal. They moved to Belle Plaine, Minnesota, two years ago.

For more information you can contact Greg Wersal at:

• Phone: 612-701-9623
• E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
• Website: WERSALFORJUSTICE.COM

A pdf of this document is here.  It is available for media use and can also be used by supporters to pass along the message.

A  photo for media may be found here.