Republican Party v. Suzanne White

Party Minnesota, Republican an of as sociation; PARTY OF MINNESO Indian Asian American REPUBLICAN association; Minnesota, Indian Asian TA, Republicans of an associ an Minnesota, Seniors, Republicans ation; Republican an associ American Seniors, association; Republican ation; Young Republican League of an association; Young Republican Minnesota, nonprofit a Minnesota an Minnesota, corporation; College League a Minnesota Minnesota Re association; corporation; publicans, Minnesota an Minnesota nonprofit association, Council, Republic College Republicans, an African American Cheryl Wersal, association; in Appellants, an L. Plaintiffs — dividually; Wersal, Mark E. individu individually, Wersal, Gregory F. Hulbert, individually; ally; Corwin C. Plaintiff, Wersal, individually; Gregory F. Justice, association; Campaign for an individually; Cheryl Wersal, Mark E. L. Republicans, association, an Muslim Wersal, individually; Hul Corwin C. Plaintiffs, individually, —Appel bert, Plaintiff s lants, individually, Maxim, Michael Appellant, Plaintiff — association, Justice, Campaign an Plaintiff, Kolosky, individually, Kevin J. Plaintiff, Republic American Minnesota African association, Council, Plaintiff— an Appellant, capacity in her as Suzanne association; Republicans, an

Muslim Chairperson Board Minnesota Maxim, individually; Kevin Michael Stаndards, or her succes of Judicial Plaintiffs, individually, Kolosky, J. sor; Cleary, capacity in his Edward J. Office of as Director of the Minnesota Responsibility, Lawyers Professional WHITE, capacity in her as Suzanne successor; E. Lund Charles or his Chairperson of the Minnesota Board capacity berg, in as Chair of his Standards, or her succes of Judicial Lawyers Re Professional Minnesota capacity sor; Cleary, in his Edward J. successor, Board, sponsibility or his Minnesota Director of the Office Appellees, Defendants — Responsibility, Lawyers Professional successor; E. Lund Charles or his Association, Minnesota Bar State capacity berg, in as Chair of the his Appellee. Behalf of Amicus on Lawyers Re Professional Minnesota successor, Board, sponsibility or his Minnesota, Party an as Republican Appellees, Defendants — sociation; American Indian Asian Minnesota, Republicans an associ Union, Minnesota Civil Liberties Seniors, ation; Republican an associ on Behalf of Amicus League ation; Young Republican Appellant, nonprofit Minnesota, a Minnesota College Re Association, corporation; Bar The Minnesota State association, Plaintiffs, Appellee. publicans, an Behalf of Amicus on Wersal, individually, Gregory F. Appellant,

Plaintiff —

Cheryl Wersal, individually; L. Mark Wersаl, individually;

E. Corwin C.

Hulbert, individually; Plaintiffs,

Campaign Justice, association; an Appellant,

Plaintiff — Republic

Minnesota African American

Council, association; an Muslim Re

publicans, association; an Michael

Maxim, individually; Plaintiffs, Kolosky, individually,

Kevin J. Appellant,

Plaintiff — capacity

Suzanne in her

Chairperson of the Minnesota Board Standards,

of Judicial or her succes

sor; Cleary, capacity Edward J. his

as director of the Minnesota Office of

Lawyers Responsibility, Professional successor;

or his E. Charles Lund

berg, capacity in his as Chair of the Lawyers Professional Re

sponsibility Board, successor, or his Appellees,

Defendants — Association,

The Minnesota State Bar Appellants.

Amicus on Behalf of 99-4021, 99-4025,

No. 99-4029.

United Appeals, States Court of

Eighth Circuit.

Submitted: Dec. 2002.

Filed: March

103 personal plaintiffs’ Haute, the other defendants IN Terre argued, James'Bopp, claim. clause solicitation Mohrman, MN of (William Minneapolis, F.

counsel), appellant. for of this case our the facts We stated Republican Party opinion, earlier MN, Paul, Gilbert, St. argued, I. Alan (8th Kelly, 247 F.3d 854 Minnesota appellees. here, Cir.2001), them and need not belabor R. McMILLIAN, JOHN Before a candidate say that Wersal was except BEAM, Judges. GIBSON, Circuit and to the for election provisions Court, challenged several who GIBSON, Judge. R. Circuit JOHN prohibits 5. Canon of Canon Party Minnesota Republican announcing their from office 2528, 122 S.Ct. issues, legal disputed views on (2002), Supreme Court L.Ed.2d 694 specific partisan engaging from summary judgment grant of reversed soliciting activities, personally from the other Gregory Wersal against Wersal, together contributions. campaign that the claim suit on their this plaintiffs with his plaintiffs associated with other the 5 of of Canon clause Republican party “announce” and"the state campaign violat- of Judicial Conduct Code filed this suit organizations,2 Minnesota and affiliated The rights. Lawyers Profes First Amendment the against their Minnesota ed further Board3 and the Responsibility to us for remanded sional Suрreme Court Standards4 opinion. Board of with its Minnesota Judicial consistent proceedings 5. The dis enjoin Canon enforcement of conclude 788, 122 2528. We at Id. summary judgment to granted trict court requires opinion Supreme Court’s and the Judicial Lawyers Board entry court for to the district to remand us challenged provi Board, holding that each and the in favor of Wersal judgment of Amendment First of 5 survived sion Canon clause “announce” on their plaintiffs other Party Minn. v. Republican scrutiny. court for district remand to the claim. We (D.Minn.1999). F.Supp.2d 967 Kelly, 63 disposition its of whether consideration appealed. plaintiffs and the other Wersal on restriction claims based plaintiffs’ court with re- with is consistent affirmed district activities We provisions challenged Finally, we re- to each of opinion. gard Court’s subjected at 885. We 5. 247 F.3d entry for of of Canon district to the court mand to strict seruti- provisions Canon and the White in favor of judgment Suzanne were the Director as 3. Named defendants Wersal were with plaintiffs associated 1. Other Lawyers Professional Republican Par- Office of campaign and the Minnesota committee his Wersal, Wersal, Cheryl and Mark of the Minnesota ty Responsibility members and the Chair Maxim, Later, who Michael Responsibility Hulbert. Board. Corwin Lawyers Professional Republi- Minnesota a member of the was also super- Board Responsibility The Professional Kolosky, an- who was Party, and Kevin can Re- Lawyers Professional Office of vises the office, joined as judicial candidate other investigates prose- and sponsibility, which plaintiffs. lawyer by cutes ethical violations judicial office. affiliated, organizations the Indian were 2. The Republican Republicans, the American Asian Chair- was the named 4. The actual defendant Seniors, League Republicans Young of Judicial Board person of the Minnesota Minnesota, College Repub- and the Minnesota Standards Board of Judicial The Standards. Re- American African licans. Con- Code of Judicial the Minnesota enforces Republicans and the Muslim Council publican judges. against duct plaintiffs. later added were ny, asking whether the political party restrictions were gathering-while permit- narrowly tailored to a compelling serve ting such a speak candidate to attend or state interest. Id. at 864. We held that gatherings all organizations- other state had compelling pro- interests in unconstitutionally impinges on the free- tecting independence quality of its speech, association, dom of freedom of judiciary, and in preserving public cоnfi- equal protection of the law as guar- judiciary’s dence independence. Id. by anteed the First and Fourteenth at 864-68. We held that the state had Amendments to the United States Con- required shown the quantum of evidence stitution. that each of those interests was threatened petition did not question include a by practices that Canon 5 regulated. relating to the solicitation restrictions. Id. at 868-72 (partisan activity restric- The Supreme granted certiorari, (announce tions); clause); 876-81 883-84 question limited presented, first (solicitation restrictions). We then held challenge to the announce clause. that each of challenged restrictions Justice opinion Scalia’s for the Supreme narrowly was tailored to serve the inter- Court asked first whether the Boards had ests of independence quality. identified a compelling state interest to be (partisan Id. at 872-76 activity restric- served the announce clause. 536 U.S. (announce tions); clause); 881-83 884-85 775-84, 122 S.Ct. 2528. Justice Sealia (solicitation restrictions). considered “judicial the terms indepen- Wersal and the plaintiffs other filed a dence” and “impartiality” to be insuffi- petition for presenting certiorari three refined, ciently and he divined dis- three questions: tinct meanings First, for “impartiality.” 1. Whether provision of the thе “root meaning” of impartiality “is the of Code Judicial Conduct that lack of against bias for or party either to a prohibits for judicial candidate elective the proceeding.” Id. at 122 S.Ct. 2528 from office “announcing] his or her (emphasis in original). Although Justice on disputed legal views or is- Sealia implicitly approved this meaning of unconstitutionally sues” impinges on the impartiality interest, as a compelling state speech freedom of guaranteed by as he concluded announce clause was First and Fourteenth Amendments to narrowly not tailored to serve that interest the United States Constitution. and in fact was “barely tailored to serve 2. Whether the severe burdens im- all, that interest at inasmuch as it not does posed provisions various of the restrict speech against for or particular Minnesota Code of Judicial Conduct un- parties, but speech rather for or against constitutionally impinge right on the of particular issues.” Id. at 122 S.Ct. parties to endorse candidates (emphasis in original) judicial for elective office violation of the freedom of speech, possible The second freedom of asso- meaning impar- of ciation, equal protection tiality of law was “lack as preconcеption of in favor guaranteed by the First against and Fourteenth of or particular a legal view.” Id. Amendments to the United States Con- 122 S.Ct. (emphasis in origi- stitution. nal). Justice only rejected Sealia not this provision concept Whether interest, of state but Minnesota Code of Judicial he Conduct that considered this sort of impartiality un- forbids candidate judicial for elective desirable in a judge. Id. (“avoiding judi- office from attending or speaking any cial preconceptions legal on issues is nei- desirable”). proceedings the case for As defined dents remand nor possible ther of Scalia, meaning opinion.” consistent with this Id. at this second by Justice to candidate’s 122 S.Ct. 2528. impartiality refers actions, thoughts. his or her public but to The first issue we must is what decide point explicit that is not important An to regard instructions issue with to the a re- opinion is that Supreme Court Then, we announce clause. must decide judicial speech candidate’s striction on to court to whether instruct district regulating patently ineffective would be summary judgment its of grant reconsider even if the state thoughts, the candidate’s regard activity with to the to do so. wanted solicitation clauses. possible meaning impartiali- of The third I.

ty willingness “open-mindedness” was all “This sort of arguments. to cоnsider reversal of Supreme Court’s liti- each guarantee seeks to impartiality grant summary judgment of for the equal legal gant, not an chance win on defendants the announce clause issue case, at least chance points in the but some technically open question leaves original). doing (emphasis so.” Id. do plaintiffs’ what to with the cross-motion impar- “open-mindedness” meaning This summary judgment. plaintiffs for ask tiality appears intimately to be related us remand with instructions to enter meaning, preconcep- lack ‍​‌‌‌​‌‌‌‌​​​​​‌‌​​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌​​​​​‌‍the second them, judgment and the Boards do not tions; meaning refers whereas the second dispute propriety request. this judge’s is- view substantive Therefore, the court enter district should sue, meaning to the the third refers judgment plaintiffs on II of Count reconsidering his judge’s attitude toward Complaint. their Second Amended Jus- or her view the substantive issue. judgment reserved tice Scalia II. impartiality third sort of in a this and the other also plaintiffs Wersal (not was to mention candidate desirable entiy judgment ask us reverse the an- compelling) because he considered entry judg for the and to order of Boards way to clause so ineffective a nounce to be plaintiffs in favor the other ment of the on could “open-mindedness” achieve that this complaint, of counts of their none four purpose adopt- in not have been the state’s Supreme were the Court. which before 780, 122 clause. Id. at 2528 ing the S.Ct. that we not have argue The Boards do (“As of objective a means of the pursuing issues to which jurisdiction over the as ar- respondents now open-mindedness (solicita did not seek certiorari plaintiffs ticulate, woefully clause announce is so clause) Supreme which tion or as to render in that undeiinelusive as to belief activity (partisan denied certiorari Court credulous.”). challenge a to the purpose clauses). rejected state interests of- Having re Supreme Court When the 5, justify to Boards Canon fered us, a case to we must determine mands Supreme Court held: “The ap of the case doctrine law judicial prohibit- of conduct canon Court’s did not Supreme to issues the plies judicial from ing candidates for election Inc., IBP, 330 See decide. Madison legal announcing disputed their views 1051, (8th Cir.2003). law of F.3d 1059 First violates the issues “when case doctrine dictates that Accordingly, we reverse Amendment. law, a rule decides grant judgment respon- upon court summary 1042 Fleming govern not law of the case. v. Lake

decision should continue Co., (7th 254, in 267 in the Delton Dev. F.2d 256 subsequent stages same issues Cir.1959), the court did not decide whether Omaha Pub. Sch. same case.” Kinman v. (8th Cir.1999) judicata Dist., applied, or law of the 607, res case but 171 F.3d 610 omitted). arguments declined to reconsider the same (quotation marks The doctrine appellant issues same had intervening does “when an deci apply not already fully litigated. sug- was no There superior clearly sion tribunal dem from changed law gestion that the had between wrong.” the law of the case is onstrates disposition appeal, the first and the later Madison, omitted); Id. (quotation marks plaintiffs argue happened this 1059; 330 F.3d Morris American case. (8th 50, Corp., Nat'l F.2d 52 Can 988 Cir.1993). Supreme Where the Court’s argue The Boards also that the of one reasoning disposing issue juris remand limited our Court’s of our validity case affects the earlier dis diction, Brownell, citing Hermann v. 274 case, position other in the issues same Cir.1960). (9th 842, F.2d Hei’mann we will those issues on rem reconsider only proposition upon “stands for the and.5 Shrink Gov’tPAC v. See Missouri jurisdiction appellate remand the of an (8th Cir.2000).

Adams, 838, 840 204 F.3d court is particularized limited those The law of the case doctrine discretion points assigned which were consider ary, jurisdictional. not Arizona v. Califor ation, the mandate was in that if form.” nia, 605, 618, 103 460 U.S. Co., Sanders v. Nuveen John & F.2d (1983) (“Law of di L.Ed.2d 318 the case (7th Cir.1977) (emphasis 793-94 add discretion, rects a court’s it does limit not ed). When a remand not does contain Davis, power.”); the tribunal’s Conrod v. limitation, such issues not within “[o]ther (8th Cir.1997). 120 F.3d compass are thereby mandate precluded from consideration.” Id. at

The cases the Boards cite to we show power lack remand this case stated: reconsider the ac- tivity inappo- and solicitation clauses are The Minnesota Court’s canon City Newport site. In Patterson v. judicial prohibiting conduct candi- (4th News, Cir.1966), F.2d 817-18 dates election from announc- plaintiffs sought relitigate in federal ing legal their on disputed views litigat- court a condemnation that had been political issues violates the First Amend- judgment ed to final in state This Accordingly, court. ment. we reverse the preclusion, summary was barred as a matter issue grant judgment to respon- review, argues taking 5. we The dissent that err in into context does not refer to "clear error” fact, consideration the law the of case doctrine in applies questions which to of Anderson v. determining disposition the of issues as to 564, 573, City City, Bessemer 470 U.S. 105 of Supreme grant which the did Court not cer- (1985), S.Ct. 84 L.Ed.2d 518 but to tiorari and which are not in the discussed actually the new decision has a bear- Supreme opinion Court’s in White. In our ing on that other issues in this case were not opinion, we conclude we that must reconsider directly by superior addressed the tribunal. reasoning those issues to determine if the of opinion, We do not to our "defer” earlier as disposition our Su- earlier survives the new dissent the contends. Where preme Court The dissent ex- decision. takes reasoning Court’s casts doubt on our earlier ception “clearly to words demonstrates conclusions, them, IV, we revisit section see wrong,” (quoted the law of the case in is infra; reasoning where the earlier is not in- Madison, 1059). phrase 330 F.3d at This White, consistent with there is no reason to purely legal question does not insulate a from it, V, alter see section infra. de "clearly” novo review. The word in this 1043 we, opinion, Nor in our earlier con- proceed- did the case and remand dents opinion. activity with this ings partisan consistent sider whether the restric- judges to election of tions tended avoid 788, 122 2528. This is 536 U.S. at remand, preconceptions legal who harbored about Field language general of a (1st Cir.1998), Mans, it judges of encourage 157 F.3d issues and to election implicit an or express not does contain awere rasa of whose brains tabula devoid of issues that jurisdiction on limitation our Therefore, experience opinion. or we did of certio- prior grant to the before us were of upon not base our decision vindication rari, id. impartiality interest in in the state’s Jus- us, then, is whether question before tice Scalia’s second sense of the word. demon- Supreme Court’s decision by this court applied the law strates that Instead, on we focused what we deciding the by the court in or district in recognize impartiality can now Jus is- activity or solicitation clause partisan open- tice third of the word: Scalia’s sense wrong. was sues Moreover, mindedness. we focused not on in the open-mindedness lack sense III. obstinacy dogmatism, subjec or which are partisan activ- In our examination mind, rather tive states of but on restrictions, suppose we did not that ity objectively open- ascertainable threat to judi- were meant to avoid the restrictions having that results from in mindedness against particular parties cial bias or who, obligations curred to entities while instance, suit, Republican if the as for case, actually not to a made parties have party litigation actual Party were an known their desire to see certain cases by was judge who endorsed before Throughout ways. decided in certain our membership Party or who had announced on рartisan discussion of restrictions during campaign. his Party in the election activities, possibility we stressed the in judge situation is Recusal such politi who became indebted to alternative. less restrictive an obvious parties be or seem to be bound cal could Therefore, appear it does parties’ plat with rule in accord those nar- activity restrictions would be partisan forms, than in accord with the rec rather rowly to avoid Jus- impartiality tailored See, e.g., law.6 F.3d at 870 word. ord and the tice first sense of the Scalia’s party proceeding.” Id. at law as to a to a the effect of a candidate's or 6. Our focus on reasoning Although Spargo’s quite obligation dependence brief, only appears to that the explains why we conclude party arrive at different York, by the possible interests served code sections of New result than the Northern District preconceptions as to issues portion are lack of recently which invalidated a either law, disapproved pro- which Code of Judicial Conduct New York party, to a which participating or lack bias as candidates from hibited recusal. Id. activity except for their could be better addressed reasoning ignores the threat Spargо New York 88-89. This campaigns. own State Conduct, open-mindedness resulting F.Supp.2d Comm'n on Judicial abstention, (N.D.N.Y.2003), reality appearance obli- from the vacated Cir.2003). dependence political parties. (2d opined: gation on to and 65 That court F.3d Spargo may discussion of this have omitted only [between "The conceivable connection Minnesota, York, judicial independence] New unlike prohibition interest because elections, partisan judicial activity, N.Y. Election engaging political has would be that in 2003), (McKinney and one partisan nonpartisan, § Law 6-106 would influ- pro- against argue that it makes little sense could judge’s decision toward or ence by judicial political activity can- partisan espoused, an hibit view whether it be on issue 1044

(citing Halverson, in concurrence Moon PAC, Nixon Shrink Missouri Gov’t 528 331, (Minn. 579, 206 Minn. 288 N.W. 581 377, 389, 897, 120 U.S. S.Ct. 145 L.Ed.2d 1939), deploring party (“In “accusations of (2000) trea 886 speaking of ‘improper influ- son which have been heaped upon some ence’ and ‘opportunities for abuse’ in addi- judges in past recent because of deci ‘quid tion to pro quo arrangements,’ we sions thought contrary to be to the inter recognized a concern not confined to brib- ests of an indorsing party”); 247 F.3d ery public officials, but extending to the (“The 872 Court has broader threat from politicians compli- too attempted prevent judicial candidates ant with the large wishes of contributors. from incurring, incur, or seeming to debts These were the points obvious behind our political parties that compromise could recognition that the Congress could consti- ”); (“If them independence.... id. at 876 tutionally the power address of money judiciary then expected to review governmental ‘influence in ways action’ ... legislation neutrally, may State con specific’ less ‘blatant and bribery.”); than clude that it is crucial that the judges see also United States Civil Serv. Comm’n be party beholden to a responsible for v. Carriers, National Ass’n Letter 413 enactment of the legislation, or to one that 548, 565, 2880, U.S. S.Ct. 93 37 L.Ed.2d (Political opposed it.”); id. parties “are (1973) (upholding restraints on execu- simply in a position better than other or tive branch political employees’ activities ganizations thrall.”). to hold a candidate in because such posed activities “hazards to form, its most extreme this kind of fair and government.”). effective par- threat to open-mindedness goes by the activity tisan restrictions of Canon 5 are which, name “bribery,” course, is forbid aimed at obligation forms of which are den by 5, laws other than Canon and is more subtle outright corruption, than but unquestionably within power the state’s which the state still has a compelling inter- proscribe. We do not mean to suggest est in avoiding in its judiciary. political endorsements are comparable The Supreme Court left open possi to the payment money or could regu be bility open-mindedness judicial in can lated in However, way. same un might didates abe compelling state inter derlying problem of candidates public est, aso premised decision upon office such incurring obligations an which interfere interest has not been with shown to performance wrong, their be in office has been Kinman, see recognized 171 F.3d at as an 610. After urgent threat gov decision ernments can the New York remedy, even Court of when the problem Appeals takes entertained more a First subtle than forms Amendment — bribery. FEC, challenge See to a McConnell v. section of its Rules Govern —, —, 619, ing 660-61, Judicial Conduct that prohibited judi (2003) 157 L.Ed.2d 491 cial (corruption and from making certain appearance of corruption beyond pledges extend and promises about their future bribery to other arrangements which cre conduct office. York New court ate “sense of obligation” officeholders); applied scrutiny strict and uрheld the sec- didates where the State has chosen to tolerate The New York Court of Appeals disagreed Minnesota, judicial elections. Spargo upheld with the New York restric- contrast, has chosen to make its elec- on activity by tions judicial candi- nonpartisan, tions thus demonstrating con- its dates as narrowly tailored to serve cern with the effect parties Raab, state interests. In the Matter

judicial impartiality. Stafford, See Peterson v. N.Y.2d 763 N.Y.S.2d 793 N.E.2d (Minn.1992). N.W.2d (2003). 1292-93

1045 content, based, compel- suppressing York’s the of disfa- part, in on New basis tion other, allowing in In re open-mindedness. speech, vored while favored ling interest Watson, 219, 290, 763 N.Y.S.2d though 100 N.Y.2d speech ought subject it to be even curiam) (N.Y.2003) 1, (per 7 794 N.E.2d objection prohibited to the same as the judi- to (“[Ojpenmindedness is central the speech. (citing 247 F.3d at 871 City of that liti- for it ensures each cial function Gilleo, 43, 51-53, v. ‍​‌‌‌​‌‌‌‌​​​​​‌‌​​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌​​​​​‌‍114 Ladue 512 U.S. genuine-as a in court has gant appearing (1994)). 2038, 129 L.Ed.2d 36 To S.Ct. to be illusory-opportunity to opposed defect, disprove the of this first existence heard.”) government defending a the law must “es- empirical the reality prob- tablish the of analysis an com- Although based the it judicial open-minded- purports addressing.” in lems to be 247 pelling interest contrary another (quoting ness is not F.3d at 871 Glickman Wileman pаrtisan Elliott, Inc., of activ- aspect analysis 457, 493, of our the Bros. & 521 117 U.S. ity carefully. must reexamined (1997) clauses be (Souter, 2130, 585 S.Ct. 138 L.Ed.2d an- Court held that J., dissenting)); generally see Interactive “woefully have a nounce clause would been Digital County, v. St. Louis 329 Software achieving underinclusive” method (8th Cir.2003) 954, (For F.3d 959 measure electing judges, goal open-minded government pass scrutiny, strict defend- could not be said to so announce clause must ing present sup- measure substantial narrowly goal. tailored serve this be harm.). porting evidence of 780, It 536 U.S. at 122 S.Ct. 2528. there- disprove possibility To closely us at fore behooves to look discrimination, government content activity similarly are clauses speech that it has must show bur underinclusive. different, poses a dened more serious opinion’s earlier discussion of Our than threat to its asserted interest clauses, partisan activity unlike our regulate. it speech chose not to See Erz clause, specifi discussion of announce Jacksonville, City 422 noznik U.S. cally addressed the issue underinclusive 205, 215, 95 S.Ct. 45 L.Ed.2d 125 in dialogue with the dissent. Com ness (1975) (“[E]ven regulation a traffic cannot at pare 247 F.3d 871-72 with F.3d content un discriminate on the basis of that, The dissent contended be 899-902. are clear reasons for the dis less there prohibited a candidate from cause Canon tinctions.”). instance, For in Austin v. three activi participating specified Commerce, 494 Michigan Chamber of parties, but not with political ties with 110 S.Ct. 108 L.Ed.2d U.S. an organizations other that took interest (1990), political Michigan restricted decide certain cases how candidate would support expenditures corporations elected, fatally if Canon 5 was underinclu- for state of opposition responded 247 F.3d at 900-01. sive. We fice. interest such ground is that underinclusiveness not that entities regulation was the concern law, right invalidating its own but in the economic that amassed wealth de frequently points that to two other marketplace parlay that wealth would are fatal: fects that underinclusiveness advantage in the “unfair into may government’s show marketplace,” 494 truly since the compelling, govern is (Brennan, J., concurring) because chosen to unchecked a ment has leave money interest; ability corporate to spend their may or else it show threat to support for no government discriminating on bore relation 1046 524, 541-42, corporations spent 2603,

the ideas 491 their U.S. 109 S.Ct. 105 659-60, 670, (1989) money (Sealia, J., to id. promote, concurring L.Ed.2d 443 672, (underinclusiveness 110 1391. S.Ct. The Chamber of in judgment) fatal Michigan Commerce attacked the law as unregulated speech where would vic- cause regulate because it not underinclusive did great” tim “at discomfort least as that expenditures by unincorporated labor un- banned). by speech caused that was ions, which also amassed war analysis problem Our 665, chests. Id. at 110 S.Ct. in applying underinclusiveness strict scru noted that federal law restricted Court tiny strong support finds unions, by expenditures by as well as cor- ease, campaign Court’s most recent finance 4, at 665 n. 110 porations, id. S.Ct. 1391.7 —, — FEC, v. McConnell U.S. rejected Austin the underinclusiveness —, 694-98, 619, 124 S.Ct. 157 L.Ed.2d challenge, reasoning corporations that the (2003). McConnell, 491 the Court con enjoyed greater government-conferred le- challenge sidered to section 203 of the gal advantages enhancing ability their to 2002, Bipartisan Campaign Act of Reform 665, accumulate wealth. 494 U.S. 110 316(b)(2) which in turn amended section legal advantages S.Ct. 1391. These of cor- Campaign the Federal Election Act form made a porate crucial distinction be- 1971, to prohibit corporations’ use of corporations tween and unions. Addition- treasury pay unions’ for funds to election ally, case permitted law union members to — advertising. 87, U.S. at — & n. opt contributing out of politi- to the union’s at 695 & n. 87. provision S.Ct. Because the activities, cal which meant that “the funds campaign expenditures, restricted it to had avаilable for a union’s activities by scrutiny. be tested strict Id. at more accurately support reflects members’ (asking “compelling governmental for the organization’s political views than measure); justifies” id. at 766 a corporation’s general treasury.” does J., (Kennedy, dissenting)(“All parties 666, Id. at Michigan 110 S.Ct. 1391. The agree scrutiny strict applies [to section law passed scrutiny. therefore strict Cf. 203].”). plaintiffs 'The contended that Freeman, 191, 207, Burson v. 504 U.S. section was underinclusive because did (1992) (also 119 L.Ed.2d 5 up- to apply advertising election in the holding scrutiny strict law on review print media or on the Internet. Id. at 697. against challenge underinclusiveness held that Court the evidence in the regulate law failed speech posing all supported case the conclusion that televi threat; same that only Court reasoned threat, advertising posed sion greater type of speech subject regulation had amply justifie[d] and therefore the “record pose been shown to threat Congress’ line drawing.” interest: Id. The “The First Amendment does not require may said that “reform regulate problems step States take one at a exist.”); B.J.F., time, that do not addressing Florida the phase Star itself to 7. The Court had dangers posed by discussed in earlier cases a ment of the those еntities long history Congressional attempts to ad- process.”); the electoral accord FEC v. Beau problem posed dress the "war chest” cor- mont, 2200, 2206, 539 U.S. 123 S.Ct. porations and labor FEC unions. See v. Nat'l (2003) (including L.Ed.2d labor unions Comm., Right 208-09, to Work 459 U.S. policies regulating discussion behind cor (1982) (Federal 103 S.Ct. 74 L.Ed.2d 364 contributions); porate campaign McConnell accounting "particular legal laws and eco- - FEC, -, -, 124 S.Ct. corporations nomic attributes of and labor 619, 644-45, (2003) (same). 157 L.Ed.2d 491 organizations” reflect "a assess- permissible

1047 campaign [throughout on the trail the acute the sues which seems most problem Buckley v. (quoting quarter mind.” Id. of the 20th centu- legislative 19th and first 105, 612, Valeo, 46 424 96 S.Ct. ries], U.S. they touting affilia- party but were (1976)). thus con- McConnell L.Ed.2d 659 all angling party tions and nominations the sort of reasoning that firms our earlier while.”). Therefore, it necessary the is fatal in that is strict underinclusiveness partisan whether the activities reconsider underinclusiveness, scrutiny is irrational supported by evi- clauses are sufficient from that results not underinclusiveness necessity, the dence of without reliance we only on focus the attempting to restriction placed history on the of ef- Minnesota’s the to a form of threat com- the severest judiciary its from protect partisan forts to governmental interest. pelling pressures. analysing Although our method of Seсond, that Minne- our conclusion the valid, issue remains the underinclusiveness justified Supreme regu- sota Court was appli the actual we must examine whether lating speech concerning politi- candidate by anything cation was affected parties, leaving unregulated cal while Supreme Court’s dis decision. White comparable speech concerning single is- of clause affected cussion the announce on groups depended part sue the exis- tailoring and necessity narrow both tence of the announce clause. 247 F.3d the par of determination that aspects our (“At Supreme at 876 passed clauses strict scruti activity tisan hearing amending Court’s 1997 on Canon First, ny. our determination Willette, Secretary DePaul Executive necessity of the Boards had shown Board, testified that Judicial partly on our view of depended restrictions affiliating danger judicial candidates history effort extri of Minnesota’s single-issue groups with ade- was judiciary partisan pressures, from cate its provision quately by addressed by judicial initially designating elections 5 announcement of the prohibiting Canon non-partisan, by adopting and later Codes disputed legal po- views on candidate’s restricting partisan ac of Judicial Conduct issues.”). Therefore, litical evidence tivities. 247 F.3d at 869-70. We concluded “ history, ‘a consen long substantial distinction be- supporting Minnesota’s sus, simple and common sense’ combine to organizations other political tween necessary to pro is regulation show light of the de- must be reevaluated judiciary from tect the institution mise of the announce clause. dangers corrup partisanship Third, original our underinclusiveness Burson, (quoting Id. 504 tion.” at 870-71 analysis only par whether the discussed 1846). 211, 112 However, at U.S. S.Ct. were underin- activity tisan restrictions rejected our reliance on Court speech per they reached clusive because the an supporting similar considerations but other political parties, taining 785, 122 nounce clause. 536 U.S. at S.Ct. We distinc organizations. concluded the (“The speech practice ‍​‌‌‌​‌‌‌‌​​​​​‌‌​​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌​​​​​‌‍prohibiting speech and non- tion between burdened issues, judicial disputed candidates justified was because speech burdened universal.”). however, long is neither nor posed pervasive a more political parties Moreover, the Court’s discussion included than did judicial independence threat relevance to the language that has obvious organizations. at other 247 F.3d types activity history clauses. — McConnell, at 875-76. (“Thus, not only Id. S.Ct. 2528 Cf. —, fully (“Congress (including judges) were real-world differ- legal entitled to consider the discussing disputed is- changed enees and inter- when parties between case law crafting system final), when groups est of before its case became but neither regulation. finance campaign Interest should Boards from prevented be mar- not of groups do select slates shaling they whatever evidence choose to for groups elections. Interest do not de- issue, present they on this asked to do on legislative termine who will serve at argument oral on remand from the Su- committees, congressional elect leader- preme Court. We therefore remand to ship, organize legislative caucuses. the district court to new receive evidence parties power Political have influence and partisan and to determine whether the ac- vastly in that legislature exceeds that can tivity scrutiny in clauses survive strict (citation omitted). any group.”) interest light opinion. Court’s The opinion Court’s raised an IV. entirely objec- different underinclusiveness tion: plaintiffs that contended short the matter is this: solicitation clause of Canon was not 5 nar

Minnesota, for candidate office rowly in unnecessarily tailored that it pro say “I may not think it is constitutional soliciting hibited сandidates from contribu legislature prohibit same-sex large groups sending tions from out marriages.” may very He say same fund-raising letters over signa their own however, thing, up very until the day tures. 247 F.3d 883-84. We held that candidate, he before declares himself personal by solicitation candidates could (until say may repeatedly litiga- impression justice create the that is for pending) tion is is after he elected. aAs sale and Canon 5 left a candidate sufficient objective pursuing open- means of means which to raise funds. Id. at that respondents mindedness now artic- 884-85. Plaintiffs did not seek certiorari ulate, woefully the announce clause is so however, on conclude, this We issue. that underinclusive as to render belief that failure to certiorari seek on the issue does purpose a challenge to credulous. not preclude plaintiffs now from asking U.S. at S.Ct. 2528. type This light reconsideration of the issue analysis of underinclusiveness looks at the Supreme opinion. Court’s See Morris banning certain communications v. American Nat’l Can Corp., F.2d within one time-frame but not another is (8th Cir.1993). analysis arbitrary. The same could be As with the activities applied to other Canon clauses of such clauses, our consideration Canon 5’s re as the party identification attendance striction personal on solicitation was also (The party gatherings clauses. en- premised state’s interest in a kind only dorsement clause during makes sense of open-mindedness'—keeping candidates election.) the time-frame of an par- This obligations free from hamper that would ticular question underinclusiveness was not ability their to decide the according law briefed either before the district court or judgment, their own than in rather accor before us when we decided this case the implicit obligations dance with to their fi first The plaintiffs ought time. not to be nancial benefactors. We said: “When making argument barred from a new judges based obtain funds from intervening Supreme group on the has decision, an litigation, see Morris v. Am. in the Nat’l Can outcome Corp., bar, 988 F.2d at 52 who such (litigant plaintiffs’ did not as the or defendants’ argument “got raise on first appeal lucky” judges can appear beholden to that group inapplicable therefore to the Minne- office, creating the nale is accession for their their will favor judges We need not comment on sota Canon.8 expectation 247 F.3d at 883. accordingly.” benefactors expressed the conclusion Weaver cannot, then, was say opinion that our We judicial elections the distinction between in- state discerning wrong truly of elections “if there types and other personal solicitation by the served terest one,” justify 309 F.3d at does restriction. ju- “greater speech during restrictions on so personal campaigns during types considered whether than other

We dicial tailored narrowly restriction was licitation Id. 536 U.S. at campaigns.” Cf. at 884-85. opinion. Id. original in our (“[W]e 783, 122 assert S.Ct. 2528 neither opinion Supreme in the Court’s Nothing imply that the First Amendment re- nor re 2003) licitation discredits after White ceH. filed Our Dunleavy, holding on the issue (upholding our (Jan. 20, support of this issue. analysis narrowly restriction A.2d for 2004) (No. tailored), is therefore not on 350-51 judges’ 03-1132). pet’n Cf. (Me. so sound the same as those for quires campaigns office.”) We have no need to revisit our clause. consideration ^[******] of the for personal judicial solicitation legislative office to dis- We remand with instructions to the the Eleventh plaintiffs cite wrong. The Bonner, judgment plain- for the in Weaver v. trict court to enter opinion Circuit’s (11th Cir.2002), invali 1322-23 II of Amended F.3d tiffs on Count the Second (announce of Judicial Conduct dating Georgia clause), Canon to enter Complaint judicial candi 7(B)(2), prohibited which on V judgment for the defendants Counts soliciting campaign personally from dates (solicitation clause), its and to reconsider did allow The Canon contributions. I, (partisan III and IV ruling Counts to solicit committee candidate’s election clauses) light Supreme in activities The Eleventh Cir Id. at 1322. funds. fur- in this case and such decision Court’s was based on holding on this issue cuit’s parties may offer. ther evidence as the prevent would not fact that the Canon learning who had con from the candidate BEAM, concurring and Judge, Circuit consequently campaign to his tributed dissenting. contribu feeling beholden to those from court’s conclusion I concur ineffective Accordingly, it was tors. judgment must enter the district court compelling asserted the state’s protecting plaintiffs the other Gregory Wersal and 5B(2), on the Minnesota’s Canon interest. their “announce (collectively plaintiffs) on hand, cam a candidate’s prohibits other plaintiffs I that the claim. believe clause” disclosing to the committee from paign “par- judgment on their are also entitled campaign identity of candidate either the “personal solicitation” activities” and tisan identity those who contributors or I from the Accordingly, dissent claims. de for contributions but were solicited holdings on these issues. ratio- court’s The Weaver clined to contribute. committee, it is natural rather than thе argues that because Canon dissent 5B(2) respond prohibits campaign committee from to the candi- expect contributors to committee, disclosing names of con- to the candidate the would which than the date rather decliners, there is no tributors and interposing design of undermine the Canon's prohibiting from the candidate intermediary between committee as signing letters. If his own solicitation candidate and contributors. request the candidate himself comes from by again reversed, I begin noting explained why that Minnesota’s and remanded popularly judges decision to elect invokes the case for proceedings consistent with its strictly fully apply White, the need to opinion. Amendment, in-

requirements of the First remand, 2528. On of simply instead ask- cluding speech the Amendment’s and asso- ing what opinion Court’s order and If ciational mandates. Minnesota wants command, majority clouds our task elections, provide it must the con- misapplying the law-of-the-case doctrine.9 trappings required pro- stitutional for such We owe no deference to the court’s ear- cedures. As Justice O’Connor noted in lier Supreme decision. The Court ordered above, her concurrence Minnesota cannot proceed consistently us to оpinion. with its “ ignore the ‘crocodile [it has chosen to only Our task on remand should be to ” place] Republican bathtub.’ Par- [its] render, remand, ensure that we or vacate 765, 789, ty v. 536 U.S. 122 S.Ct. consistently with the Court’s (2002) 2528, 153 L.Ed.2d 694 (quoting for- mandate: mer California Court Justice A corollary to principle that a man- Kaus). today, Otto Yet the court permits completely date is controlling as to all just the to do that. State matters compass within its is the rule I adhere to the in expressed my views that, a upon reversal remand for dissent, see, previous 885-903, 247 F.3d at further consistent proceedings, the case fully incorporate my by remarks refer- goes ... back for a new determination ence. But this present posture case’s re- of the issues presented though they as quires a further and inquiry: different had before, not been pursu- determined What must we do on remand? consid- ant to the legal principles in enunciated ering question, this the court misdefines opinion. the ... our task and a renders decision that vio- C.I.R., (8th 345, Poletti v. 351 F.2d 347 lates both the Supreme Court’s mandate Cir.1965) added). (emphasis This de novo and the First Amendment. because, review is absolute when the man date proceed tells lower court to consis I. Our Task on Remand tently with an opinion, opinion the and its (sometimes The court referred to as the teachings become part of the mandate. panel majority majority) or gives great Henslee, (8th Bailey 309 F.2d 843 weight previous to its decision. This is Cir.1962); see Bankers Trust v.Co. Bethle error. The last time this case was before (3d Corp., hem Steel 761 F.2d 949 us, panel majority, dissent, the my over Cir.1985). upheld clause, the solicitation partisan- the clause, activities Although and the announce clause. the court cites case that Supreme Court granted proceeded remand, certiorari properly on Shrink reversed, consider the announce clause. It Adams, Missouri Government PAC 204 9. Footnote opinion legal 5 of the court’s questions. further review of To the extent that First, muddies the water. the suggests court writes footnote 5 that the court is conduct- apply that we the law of ing the case unless panel's previous de novo review of the intervening authority clearly opinion light Supreme demonstrates Court's teach- Next, the wrong. law of the case was ings, agree the I with that footnote. But I am not Shrink, court cites a case that opinion's never men- says convinced that text or Then, tioned the doctrine. the court suggests, ultimate- means what the any footnote and in ly event, "clearly concludes that the accurately demonstrates” the footnote does not de- language merely way a redundant actually statement of scribe the applies the court rule, the Shrink which allows for a de novo doctrine. Conduct, (8th Cir.2000), cial and the ABA Codes of Shrink does F.3d Conduct, none of these The court Judicial sources court’s actions. support the it. proposition bothers to define cites Shrink reasoning in Court’s Supreme “[w]here White, 2528. So in a case affects of one issue disposing impartiality defined of other disposition earlier validity of our us, possibility judi- open and left case, reconsider in the same we will issues “openmindedness” might cial is or become Ante at 1042. issues on remand.” those state interest. Then, our as deter- the court defines task though panel majority Even did not applied by “the law this mining whether “impartiality” “openmindedness” define deciding district court in court or it previous appeal, does not return clause activity or solicitation compelling-state-interest question. to this Ante at 1043. But wrong.” issues was Instead, majority claims to have exer- any permis- from ultimately departs court foresight near-psy- cised remarkable interpretation of the law-of-the-case sible precision today chic when it states that it (or I any standard of review doctrine other “fоcused on what we can now rec- earlier find). evidence this problems can Two ognize impartiality Justice Scalia’s First, to a the court defers departure. open-minded- of the word: third sense no court has ever made. And ruling that ness.” Ante second, rulings the court adheres stunning metamorphosis to the de- This before, though even made says it panel terminations the now made precisely teachings require Court’s new presents, to borrow previous opinion its I rulings. address each opposite the words, challenge to “a the Justice Scalia’s turn. White, credulous.” majority And the further S.Ct. 2528. Ruling a it II. The Defers Court left Supreme that because the Court states Never Made possibility openmindedness that open the undisputed that both the Although it is interest, its might compelling be a state clauses and solicitation partisan-activities upon such an interest supposed reliance justified by compelling a state must be Ante at 1044. wrong. to be was not shown interest, although these clauses re- fatally incor- self-serving analysis is This core, the political, speech, election strict analysis reasons. The rect obvious court, the time this case was before last newly mint- recognition on the of a focuses majority upheld the restrictions panel the interеst that the Su- compelling ed state forgot an interest it to define. based on majority for not the preme Court scolded Appeals concluded that The Court of defining. finding or had established two inter- [Minnesota] elec- government suppresses the When pre- ... sufficiently compelling ests as demands speech, tion the Constitution judi- of the state serving impartiality the is, narrowly tailored scrutiny; a strict appearance the ciary preserving compelling designed to serve restriction judicia- impartiality of the state 774-75, 536 U.S. state interest. is used ry.... [A]lthough the term majority, panel 2528. Yet the opinion, throughout Eighth Circuit’s today’s previous effort nor briefs, of Judi- neither its the Minnesota Code impartial- of the words majority’s previous definitional discussion computer 10. A scan of the words opinion to disclose its use of ity judicial impartiality. fails or any "openmindedness” in "openminded” or opinion, why “open- opinion has discussed how or the court’s misstates what oc- curred. a compelling mindedness” is state interest suppress

that can be used to election Supreme Court refused to pursue speech and associational activities. Nei- question this crucial because it did not ther did Justice Scalia. believe that the Minnesota Supreme Court adopted had the “announce” clause for the noted, opinion, As in its earlier already purpose protecting openmindedness majority panel simply asserted that judges. There is even less chance (a judicial impartiality forgot term it all) (hardly any chance at that the Minne- define) compelling was state interest. sota court adopted partisan-activities Only Supreme later did the Court define judi- and solicitation protect restrictions to impartiality for us. And while the Su- Indeed, “openmindedness.” cial there is preme acknowledged openminded- readily almost no discernible connection possible ness as a use as a subset of the between the words contained in these re- impartiality, acknowledged word [judicial] strictions and “how a candidate possibility possible that that subset was would decide certain eases if elected.” interest, today state panel Ante at 1044.11 claims earlier reliance on this later-defined So, step, fundamental first we and, discussion, without further should “openmindedness” ask whether ais previously declares it found this unde- all, compelling state interest at all.12 After fined interest If compelling. panel’s open only pos- Court left present accurately describe its statements sibility openmindedness, as a desir- holdings, earlier then one of following judicial trait, able rises to the level of a statements must be true: either the Su- “compelling state interest.” The preme panel’s Court missed the previous and, upon Court did find it to be so message, previous panel consideration, was to proper may able it be found to examine an fall closely undefined term so well short of the as to fundamental interest necessary to fit into compelling. label this constitutional cat- But neither is true. egory. Our role as an requires inferior ‍​‌‌‌​‌‌‌‌​​​​​‌‌​​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌​​​​​‌‍court that reject option.

we the first And we must Then, because we have never scrutinized reject the very second because the ideas of only restrictions under the interest rights fundamental scrutiny and strict re- that can possibly support them (openmind- quire that before we deem an interest edness), we should do so now. We should compelling, we must ask, know what that inter- example, preventing true, est is. Because neither statement is judge from sending his or her own fund- especially 11. is This true with the Appeals's solicitation 12. The New York Court of Watson clause, by panel majority’s as shown re- decision-which of course does not bind us- Bonner, jection of Weaver v. nothing 309 F.3d 1312 adds to this case. See ante at 1045 (11th Cir.2002) Watson, 290, (striking (citing down solicitation In re 100 N.Y.2d clause). majority (2003) opinion The states that be- N.Y.S.2d (per 794 N.E.2d Watson, curiam)). by cause the solicitation clause considered the defendant defined prohibit Eleventh impartiality, Circuit did not plaintiff dispute candi- and the did not knowing date responses from solicitation that interest's status. In re Wat- declinations, rule, son, as does the Minnesota 763 N.Y.S.2d 794 N.E.2d at 6. The passes the Minnesota version muster. If this fact that the Watson court reached this uncon- correct, is the disconnect magically between the rule tested conclusion does not insert an judicial openmindedness analysis is all the panel majori- more into the void left ty's previous obvious. decision. doctrine, panel how the can adhere to preserve to case necessary is letter solicitation is not an its view that underinelusiveness consider views “willing[ness] to judges independent ground challenge a restric- [existing] preconceptions, oppose that (and now, speech by analo- tion on election when the is- persuasion, open remain activities). ques- I gy, partisan simply case,” hall- pending arise sues dissent, my earlier premise tioned this according to “openmindedness” marks it but Justice Scalia defenestrated 778, 122 536 U.S. Scalia. Justice regardеd pro- “A law cannot be as White: true when especially This is S.Ct. order, highest an of the tecting interest judge learning from forbids the Minnesota justifying upon and thus as a restriction response or lack thereof. a solicitee’s speech, appreciable truthful when it leaves But, my it view beyond question, this is supposedly vital interest damage to clause is unconstitu- solicitation unprohibited.” 536 U.S. only The specific reason. tional for a more (internal omit- marks and citations clause survives strict way the solicitation ted). panel agrees But the now with nei- narrowly necessary if it is scrutiny is ther Justice Scalia nor with me.14 compelling state to further tailored openmindedness. interest of majority’s view on underinelusive- judge not allow a canon does interesting unsupportable is an but ness This request. sign even solicitation I am position because certain Justice pur- rule complicated of a more aspect one meant what he wrote White. His Scalia the state’s designed protect portedly repeating: “A law [here words bear But of the restriction part interest. this cannot partisan-activities restriction] be narrowly law not tailored. regarded protecting renders as an interest of the judge’s open- in a state where a way, highest [рossibly another order Stated donors, keep ... judge apprecia- cannot learn of his when it leaves mindedness] damage unprohibit- must the state to that ... interest judge’s “open,” mind ble panel apparently does not judge signing from even solici- ed.” Id. The prohibit the par- strike down the dispute course not.13 that we must tation letters? Of regard unless we tisan-activities clause and the Parti- III. Underinelusiveness highest an of the protecting san-Activities Clause (and I I But admit do order. somehow how) understand, free to finesse this I even under its the court feels Nor do see language par- to allow the misguided application law-of-the- anything obey the candi- just forgiving the tributors to do but 13. Footnote 8 shows how standard; even strict-scrutiny The record does not the in- date’s direction? court views (or deed, asking) approach answering even these language appears better suit- the court’s sig- the questions. The court fails to realize ed review. The court as- for rational-basis scrutiny-and of strict its burden-of- nificance personal is that the ban on solicitation serts default, chooses, by proof allocation-when it justified expect con- because “it is natural to on its speech-suppressing answer based the respond the candidate rather tributors to to unsupported hypothesis. own signs the the committee” if the candidate than wrong it as- letter. This footnote is because this lan- Perhaps court does not feel will the the sumes that either candidates violate White, binding. Scalia guage In Justice will not follow is law or that their contributors language way the Court and cited that reply to in the wrote for the candidate’s direction concurring opinions. the, Why of his is it not "natural to from one law allows. non-binding language used to be obey law and fact that the expect” that candidates will the committee, change that is now the the fact it replies as the rules does not direct to the why expect we the con- law. require? And would purport protect probability greater tisan-aetivities clause to to facts establish the judicial openmindedness though even the judicial openmindedness harm to from as- (affilia- appreciable damage clause leaves narrowly soeiation with these other fo- support spe- tion with and the from other eused, politically who have groups active groups) unprohibited.15 cial-interest though ap special-interest 15. Even Justice wrote the mindedness than association. Scalia plicable very Indeed, record, rule in this case the Court when including a Minnesota time, majority today reversed first Supreme hearing conducted when the ignores language upon and instead relies rules, amending court was the ethical shows FEC, - U.S. -, -, McConnell v. special-interest-group posed association 619, 694-98, 124 S.Ct. 157 L.Ed.2d 491 great Hearing at least as a threat. See on the First, (2003). puzzles That reliance me. I Amendment to Canon Code Judicial why today pieces don't understand court Conduct, C7-81-300, 36-37, (Minn. Tr. at together blurbs from that several-hundred- 19, 1997) (Minnesota Judge Nov. District page opinion, when Justice Scalia wrote a ( Gary Meyer testifying) The rule "allows a clear, Remarkably, one-sentence rule. even judiciary candidate for the to seek and use though Court decided McCon special the endorsements of such shortly nell after it decided and even Association, groups as the National Rifle though opinion the McConnell contained hun Life, Minnesota Citizens Concerned for pages dreds of and I more citations than care Women, Organization National Mothers count, opinion the McConnell didn’t cite Drivers, Against any Drunk labor union. quite White. I am certain that the Clearly, organizations such as these can and Court did not overlook White when it wrote frequently support oppose do Instead, recognized McConnell. that the appears pro- office.... It that the two cases were so different as not even posed changes attempt are an [the rule] justify single citation. But this distinction strip political judicial affiliation from today. elec- does not dissuade the court When the tions, time, puzzle pieces place, they but at the same seem out of allow and court pounds they wedge together; perhaps encourage them until adopt candidates to issue is, problem pieces only are not in the group pol- party affiliation. This doesn't take wrong place, they wrong but are from the judicial ap- itics out of the election.... Is it puzzle. propriate speak for a candidate to patchwork Even this formulation doesn't appear at a MADD ... function but not a McConnell, support holding. the court's political party? Why special should these in- the "Court held evidence in the case activity protected terest endorsements and be supported the conclusion that television ad constitutionally guaranteed speech free threat, vertising posed greater and there assembly political party but endorse- amply justifie[d] Congress' fore the record line activity ments and protected.''). not be so - McConnell, drawing.” (citing Ante at We should not remand to the district court U.S. at -, 697) (emphasis - 124 S.Ct. at to allow it to review the record for evidence omitted). quotations added and internal De simply that is not there. There is not "am- termining "greater” requires which threat is ple” record evidence to show that this line comparison previ of the two threats. In its drawing necessary to advance the state’s opinion, panel majority purported ous openminded judiciary, interest in an or in the presented by examine the threats association appearance openminded judiciary. of an aIn political parties, they with concluded were case, gun-control open- how is the candidate's arbitrary, inapplicable cited cases that mindedness more affected his af- support treating political parties differently, filiation than his NRA affiliation? In an abor- heavy and held that the State had satisfied its case, political tion would association with a panel majority burden. But the never dis party judicial influence minds more than as- (and today) cussed it does not discuss pro-life pro-choice groups? sociation with or special-interest-group threats that association restriction, justify To pro- even the court's pose, though highlights even the record this posed requires "yes” rule a answer to problem. .these certainly It fails to discuss "am questions. logic Because ple” neither nor the rec- (past present) record evidence answer, supports supports "yes” ord the idea that association Constitution presents greater judicial open- drawing. threat forbids the line that did not many question of the cases an exist when the deci- persistent upon to decide judge may And, be called panel elected sion was rendered. defers in Minnesota courts.16 hypothetical ruling to its own instead of applying the mandate of the so, majority never examines

Even reasons, Court. For these ex- those pose these other contacts dissent, pressed my previous I concur in If law danger.” cannot “appreciable an scrutiny ap- when it leaves an pass strict the court’s invalidation of the Minnesota danger unprohibited, starting preciable clause, Supreme Court’s announce but dis- apprecia- to ask whether an place must be sent from the court’s failure to invalidate and, so, at all if does the danger ble exists partisan-activities and solicitation re- This is the unprohibited? law leave it striсtions. inqui- of the “underinclusiveness” essence is an

ry clearly independent ground and it al- challenging the restriction. And

for correctly notes that the

though panel challenge clearly points

underinclusiveness in the

toward two other fatal defects law, unprotected-appreeia- challenge stands on its own and

ble-danger Minnesota rule. defeats the America, UNITED STATES of Appellee, short, panel’s interpre- although underinclusive- tation of inventive, I jurisprudence is choose ness Christopher WARREN, Appellant. binding interpretation of

Justice Scalia’s partisan-activities law. The Minnesota No. 03-2144. clause, written, violates the presently as Constitution. Appeals, United States Court Eighth Circuit. IV. CONCLUSION 14, 2004. Submitted: Jan. majority the discretion- panel uses ary, judicial-economy-based, law-of-the- 22, 2004. Filed: March unsupportable case doctrine to reach an has failed to establish a

result. Minnesota interest,” at

“compelling state least one regula- a discernible connection to the

with regulation woefully

tions at issue. One overly and the other broad

underinclusive no connection to a constitu-

but with real majority

tionally protectable interest. ‍​‌‌‌​‌‌‌‌​​​​​‌‌​​‌‌​​‌‌‌​​‌​​​‌‌​​‌‌​​​‌‌​​​​​‌‍The ruling deciding previous

construes its notice, non-judicial for state regard, judicial well as to In this I take instance, Ahlers, filings contained in F.2d of candidate office. See In re and federal 388, Campaign (8th Cir.1986) Minnesota Board of Finance (permitting con 392 n. 1 Reports year Public Disclosure 2000 and of matter outside the record sideration reports reveal that in Minnesota media appeal), grounds sub nom. Nor rev’don other large law firms and their members contribute Ahlers, Worthington west Bank money sums of candi- substantial dates, (1988). 99 L.Ed.2d 169 108 S.Ct. candidates, especially incumbent

Case Details

Case Name: Republican Party v. Suzanne White

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 16, 2004

Citation: 361 F.3d 1035

Docket Number: 99-4021, 99-4025, 99-4029

Court Abbreviation: 8th Cir.