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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Judicial Selection in Minnesota: A Special Report

On March 26, 2007, the Citizens Commission for the Preservation of an Impartial Judiciary (“Quie Commission”) released its report and recommendations concerning the method by which Minnesota judges should be selected in the wake of the United States Supreme Court decision in Republican Party of Minnesota v. White. The full text of the report, including the membership, minority report, exhibits, and concurrences by several individual commission members can be found online via the MSBA website at www.mnbar.org and will be emailed directly to MSBA members.

Now that the Quie Commission report has been released, the MSBA begins a process of gathering input from members. President Patrick Kelly and other MSBA leaders will discuss the report with members at district bar meetings this spring. The commission’s report has been sent to the Judicial Elections Committee for review and to develop a recommended MSBA position. Their recommendation will then go to the MSBA’s Legislative Committee and from there to the Assembly for consideration at their June meeting. Members are encouraged to weigh in on what promises to be a historic change to our state judiciary.

Reproduced below is the Executive Summary of the commission’s report.

Executive Summary

The Commission and a Summary of Key Recommendations

The Citizens Commission for the Preservation of an Impartial Judiciary, chaired by Governor Al Quie, is an independent citizens group composed of individuals from diverse backgrounds in law, politics, business, labor, and academics. The commission was established in February 2006 to review and make recommendations concerning the method of selection of Minnesota’s state court judges. More specifically, the commission’s task was to consider the nature and scope of the threats to an impartial court system in the aftermath of Republican Party v. White, 536 U.S. 765 (2002), and assess the options for preserving and promoting an impartial court system.

The commission considered and evaluated several institutional and extrainstitutional arrangements for maintaining a fair, impartial, accountable, and qualified judiciary. The commission recommends that the initial selection of judges occur through a merit-based selection process and gubernatorial appointment. The commission further recommends the comprehensive performance evaluation of all judges to promote the self-improvement of judges and provide voters with information so that they can make informed decisions at the polls. Finally, a majority of the commission recommends that judges be subject to periodic retention elections so that they can be held accountable for their performance in office. The commission believes that these institutional features will promote and maintain a high-quality judiciary accountable to the people and to the rule of law.

The Commission’s Recommendations Regarding Judicial Selection

The commission recommends the following method of judicial selection for district court and appellate judges to address the risks posed by the post-White election rules:

  • Merit Nominations: Nomination of qualified candidates for judicial vacancies by a merit selection commission;
  • Gubernatorial Appointment: Appointment of judges by the governor, from a list of candidates provided by a merit selection commission, for an initial term of approximately four years, and, if retained by the voters, for subsequent terms of eight years;
  • Performance Evaluation: The creation of a performance evaluation commission, half appointed by the governor and half appointed by the chief justice, a majority of whom will be nonlawyers, to (a) conduct confidential midterm performance reviews of judges to address ways of improving judicial performance and (b) conduct performance reviews of judges near the end of their terms, with appropriate precautions for confidentiality of certain data and certain deliberations of the commission, and publicize those evaluation results on the ballot and elsewhere to provide information to the public about the qualifications and performance of the judges subject to retention elections and promote public accountability; and
  • Retention Elections: The renewal of a judge’s term through retention elections. Voters will be advised on the ballot as to whether the Performance Evaluation Commission finds the judge qualified or not qualified and will be given an opportunity to vote to retain the judges. In retention elections there will be no challengers on the ballot.

Attached as exhibits to this report are the commission’s specific recommendations regarding the selection, retention, and performance evaluation of judges, which include:

  • Proposed amendments to Article VI, Section 8 of the Minnesota Constitution establishing that judicial vacancies shall be filled by appointment by the governor from a list of candidates nominated by a merit selection commission;
  • Proposed amendments to Article VI, Section 7 of the Minnesota Constitution establishing that a judge’s initial term following appointment shall be approximately four years, the renewal of judicial terms shall be decided by the voters in retention elections, a judge’s term of office following retention shall be eight years, and a performance evaluation commission shall evaluate the performance of judges and publish its performance rating on the ballot;
  • Proposed legislation detailing (a) when a judicial vacancy exists, (b) the process for nominating judges by the merit selection commission and for gubernatorial appointment, (c) the conduct of judicial retention elections, (d) the composition, selection, and duties of the Appellate Court Merit Selection Commission, and (e) the composition, selection, and duties of the Performance Evaluation Review Commission; and
  • Proposed amendments to Minnesota Statutes 480B.01, subdivision 11, providing that district court vacancies shall be filled by appointment by the governor from a list of candidates nominated by the Judicial Selection Commission.
  • All of the commission’s recommendations are fully detailed in sections IV, V, VI, VII, and VIII of this report.

Existing System of Judicial Selection in Minnesota

The Minnesota Constitution provides for judicial elections, but if a vacancy occurs during the judge’s term, the governor may appoint a successor. Article VI, Sections 7 and 8. In practice, most judges initially obtain their offices by appointment rather than by election. Once appointed, the judge must run for election in the next general election occurring more than one year after the appointment. Id.Judges serve a six-year term and may run for reelection every six years. Id. Judicial elections are nonpartisan. Under the system of nonpartisan elections, judicial candidates do not have a party affiliation listed on the ballot. Instead, there is an incumbent designation on the ballot. The mandatory retirement age is 70.

The Threats Posed by the Post-White Rules to Judicial Impartiality

In White, the United States Supreme Court, in a 5 to 4 decision, held that states may not prohibit judicial candidates from announcing their views on disputed legal or political issues. 536 U.S. 765 (2002).Following a remand to the U.S. Court of Appeals for the 8th Circuit, the 8th Circuit held that states may not prohibit judicial candidates from engaging in certain partisan activities, such as identifying themselves as members of a political party, attending political gatherings, and seeking, accepting, and using political party endorsements. 413 F.3d 738 (8th Cir. 2005) (en banc) (cert denied). The 8th Circuit also concluded that states may not prohibit judicial candidates from personally soliciting or accepting campaign contributions or personally soliciting statements of support by personally signing solicitation letters or asking large gatherings to support particular views through their financial contributions. Id.

The White decisions have fundamentally altered the rules of conduct for judicial campaigns in Minnesota. Under White, judicial candidates may now choose (without fear of later sanction from the disciplinary authorities) to announce their views on legal and political issues, directly solicit campaign contributions, seek political party endorsements, identify themselves as political party members, attend political party gatherings, and commit themselves to political party platforms. Judicial candidates also may seek endorsements from special interest groups. The commission’s concern is that as campaigns for state judicial office begin to look and operate like campaigns for legislative or constitutional office, the potential increases that special or moneyed interests will influence how cases are later decided. Moreover, even if Minnesota could somehow operate state judicial elections so that contributions to judicial campaigns did not, in fact, influence the results in specific cases, the appearance that campaign contributions had such an effect would in itself justify change to our system. As shown by recent studies, a majority of the public — and judges themselves — believe that contributions to judicial campaigns influence later substantive results for litigants in decided cases. This is intolerable.

The commission identified the following threats to our system of nonpartisan elections in the post-White era:

  • The post-White election rules threaten to turn Minnesota’s system of nonpartisan elections into partisan elections, because candidates may now seek and use political party endorsements, potentially injecting partisan politics into the courtroom.
  • The post-White elections rules threaten to increase the cost of judicial campaigns, pressing judges and challengers to solicit financial support from those likely to have interests in the outcome of cases before them. This increases the public perception of judicial favoritism and increases the chances that judges will be influenced by contributors in making their decisions.
  • The post-White election rules invite political parties and special interests to spend millions to influence judicial decisions and elect judges who will serve those interests rather than follow the rule of law. Big money races are no longer confined to perennial battleground states like Texas, Illinois, and Ohio — they are spreading rapidly across the country, with the average cost of winning jumping 45 percent in just the past two years. Nine states have had state supreme court candidates raising more than $1.0 million.
  • In order to raise the money needed for judicial campaigns, judicial candidates could be pressured to signal how they will decide cases and state their views on controversial issues that are facing the courts in order to get elected. This increases the perception and reality that justice is for sale.
  • The post-White election rules invite out-of-state moneyed interests to fund campaigns for the purpose of influencing judicial decisions, increasing the costs of judicial campaigns and the influence of national players in state judicial campaigns.
  • The post-White election rules invite negative television advertising and negative campaigning, undermining public confidence in the judiciary.

The campaign activities permitted under the White decisions threaten a litigant’s fair day in court. They also impair the core functions of courts to protect individual rights and liberties, check the legislative and executive branches to ensure they act within the bounds of their authority, protect and uphold the Minnesota and U.S. constitutions, protect and uphold federal and state laws, and preserve and promote our democratic system of government. In short, post-White judicial campaigns have the potential to threaten the very foundation of our constitutional democracy and the rule of law.

Minority Report

Also attached is a Minority Report which recommends that the retention decision be made by a commission.

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