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

Judicial Elections 2010: Minnesotans Stay the Course

While partisanship, controversy, and legal challenges colored many judicial races around the country this fall, Minnesota judges ran positive campaigns, featuring their experience, qualifications, and widespread support.  More aggressive challenges and closer races suggest, however, that judges’ supporters may need to adjust their strategies in future races.

 

 

Minnesota’s judicial elections stayed on a moderate course in 2010.  The Republican Party tried to politicize some of the contests, but all of its endorsed candidates lost.  Candidates’ fundraising was modest and third-party interest groups were largely absent from the campaign.

There were 110 judgeships up for election in 2010.  Only 12 of those elections (11%) were contested.  In contrast to recent experience, there were no contested elections in the 4th Judicial District.  All appellate court incumbents prevailed, a suspended district court judge was defeated, one other long-time district court judge lost his seat, and there were battles for three open seats.

Appellate Courts

Three Minnesota Supreme Court positions were on the ballot in 2010: Greg Wersal challenged Justice Helen Meyer; Tim Tingelstad ran against Justice Alan Page; and Justice Christopher Dietzen was unopposed.  Wersal and Tingelstad ran with Republican endorsement.

Republicans also endorsed Minnesota Court of Appeals candidate Dan Griffith, who made his fourth run for the court.  This time, Griffith challenged Judge Larry Stauber, appointed by Gov. Pawlenty in 2008.  Roxann Klugman, whose law license was inactive at the time, filed for election against Judge Randolph Peterson.  Eight other court of appeals judges ran unopposed.

The incumbents ran principally on their experience and qualifications, their support for nonpartisan judicial elections, and widespread endorsements from lawyers, retired judges, public officials, and newspapers.  Justice Meyer ran radio advertisements statewide and Justice Page advertised in newspapers.

Wersal, who also ran against Justice James Gilbert in 2000, made appearances at Republican and Tea Party gatherings and featured his successful court challenges to restrictions on judicial campaign activities.  Tingelstad ran for the supreme court for the third time on an overtly religious platform.

Wersal, Tingelstad, and Griffith all campaigned against the proposed constitutional amendment to replace current judicial elections with a merit selection and retention election system.  In radio ads, Wersal said “I support your right to vote for your judges.  My opponent does not.”  He said, if the system were changed, judges would be “almost totally unaccountable to the public.”

Spending in the appellate races was restrained.  By standards set in other states and in prior Minnesota races, all candidates’ fundraising returns were lackluster.

Justices Meyer and Page won convincingly with 58 percent and 63 percent of the vote, respectively.  While their victory margins were smaller than in recent supreme court elections, they fared well considering the antiincumbent and Republican voter trends that may have favored their opponents.  Appellate court judges Peterson (57%) and Stauber (52%) also won.  Remarkably, Peterson’s opponent—an inactive attorney who ran no visible campaign—won 43 percent of the vote, even though there was no obvious reason to vote against the incumbent.  The Stauber-Griffith race was close: Stauber won by just 3.67 percent.  Griffith ran an active campaign and, in his fourth run for the court of appeals, he may have gained some name recognition with voters.

Legal Challenges. Greg Wersal was also busy litigating judicial election rules, statutes, and practices during this campaign season.  On July 29, 2010, the 8th Circuit Court of Appeals issued a 2-1 opinion striking down Minnesota’s rules that prohibited judicial candidates from publicly endorsing another candidate for public office, personally soliciting or accepting campaign contributions, and soliciting funds for a political organization or another candidate. Wersal v. Sexton, et al., 613 F.3d 821, 842 (8th Cir. 2010).  (Wersal did not challenge the rules prohibiting candidates from accepting contributions or learning the identity of contributors.)  The victory allowed Wersal to personally solicit potential contributors. On October 15, however, the 8th Circuit granted the state’s petition for rehearing en banc, and the original opinion was vacated.  (The en banc hearing was scheduled to occur January 10, 2011.)

Wersal also joined in a legal effort challenging the governor’s right to appoint a successor to Chief Justice Eric Magnuson, who resigned effective June 30, 2010.  Gov. Pawlenty appointed Associate Justice Lorie Gildea to the chief justice position; she must run for election “for a six-year term at the next general election occurring more than one year after the appointment,” which will be in 2012.  Wersal and Minneapolis attorney Jill Clark petitioned the Minnesota Supreme Court for an order directing the secretary of state to accept filings for the chief justice position in the November 2010 election.  They argued that the Minnesota Constitution required that Magnuson’s seat be filled by election, and that failing to provide such an election violated their 1st Amendment rights to run and to vote for chief justice.  On May 13, the Minnesota Supreme Court issued an opinion denying the petition. Clark v. Ritchie, 787 N.W.2d 142 (Minn. 2010).

Finally, Wersal and Clark brought a lawsuit in federal court, seeking the same relief and challenging the Minnesota statute that places an “Incumbent” designation on the ballot for sitting judges.  Judge Michael Davis denied plaintiffs’ motion for preliminary injunction, finding that plaintiffs were unlikely to succeed on the merits of their claims.  Clark v. Ritchie, 10-CV-2073 (MJD/SRN) (D.Minn. 06/21/10).

District Court Challenges

The Suspended Judge. The 1st District race was a referendum on Judge Timothy Blakely, who was suspended without pay by the Minnesota Supreme Court in September 2009.  The court’s three-member fact-finding panel found that Judge Blakely’s steering of mediation cases to his divorce attorney while he negotiated a substantial fee reduction in his divorce case violated the Minnesota Code of Judicial Conduct.  The Board of Judicial Standards recommended that Judge Blakely be removed from office, but the supreme court found that a six-month suspension and censure were warranted “to restore public confidence in the judicial system.” Inquiry into the Conduct of the Honorable Timothy Blakely, 772 N.W.2d 516,527 (Minn. 2009).

Two candidates filed to challenge Judge Blakely.  In the August primary election, Blakely finished first with 40 percent of the vote, and Assistant Dakota County Attorney Larry Clark narrowly defeated municipal prosecutor Stephen Baker 31 percent to 29 percent for the right to challenge Blakely in November.  News accounts leading up to the general election featured Blakely’s suspension, as did Clark’s campaign.  Judge Blakely avoided public comment and appearances in the campaign.  Clark won convincingly, 56 percent to 43 percent.

Other Races. In the 10th District, Anoka attorney John Dehen defeated four-term Judge Michael Roith 52 percent to 48 percent.  Assistant Public Defender Connie Iversen ran a close race but lost her challenge to 2nd District Judge William Leary, 48 percent to 52 percent.  Both challengers had run in 2008—Dehen lost to Judge Robert Varco and Iversen lost in an eight-candidate primary.  Both also worked hard in the 2010 campaign, blanketing their districts with signs.

Glen Jacobsen, assistant Renville County attorney, ran as a law-and-order candidate (“If you do the Crime, you should do the Time”) for a second time in the 8th District.  Judge Kathryn Smith defeated Jacobsen 61 percent to 39 percent.  In the 9th District, Judge Paul Benshoof defeated Republican-endorsed Darrell Carter (private practice, Bemidji) 55 percent to 45 percent.  Judge Paul Rasmussen won 60 percent to 40 percent over former judge Terrance Holter, who was defeated in 2006 by his law clerk.

Open Seats

There were 97 district court positions up for election in 2010.  Two judges announced that they would not file for reelection, and a third withdrew his candidacy after filing.  These actions created open seats in the 2nd, 6th and 10th districts.

2nd Judicial District.  Judge Michael Monahan, approaching retirement age and piqued over how long Gov. Pawlenty took to fill vacant judgeships, elected not to resign his office and permit the governor to appoint a successor.  His decision created an open seat for which nine candidates filed.  Gloria Bogen, executive director of Legal Assistance of Washington County, finished first in the primary election, winning 22.7 percent of the votes.  Mark Ireland, supervising attorney at Foreclosure Relief Law Project, finished second with 18.9 percent of the votes.  Their positions switched in the general election; Ireland won with 53 percent of the vote.

6th Judicial District.  Judge Kenneth Sandvik announced that he would not seek reelection, opening his seat to be filled by the 2010 election.  Eight candidates filed for the seat.  Duluth attorney Mike Cuzzo came in first in the primary with 36.3 percent of the vote, and Two Harbors attorney Timothy Costley finished second with 17.2 percent.  The general election campaign focused on credentials and who could best serve as judge in Lake and Cook counties.  Costley, a Two Harbors practitioner, argued that it was “important that a judge lives in the community that he or she would preside over.”  Costley did win 61 percent of the votes in Lake and Cook counties, but Cuzzo won 62 percent in voter-rich St. Louis County.  Cuzzo won the general election with 60 percent of the vote.

 

10th District Free-for-All. In a story now well-known to Minnesota bench and bar, 24 candidates vied in the general election for an open position on the 10th District bench.  The seat was held by Thomas Armstrong, in his fifth term, first elected judge in 1980.  In May, Judge Armstrong filed for reelection.  On June 1, the last day for filing, the judge’s ten-year law clerk Dawn Hennessy filed for election to the same seat.  On the next day, Judge Armstrong withdrew his candidacy, leaving Hennessy as the only candidate.  In response to community criticism and questions of collusion, Hennessy also withdrew.

The withdrawals created a “vacancy in nomination” under Minnesota law.  Prospective candidates had seven days to file a nominating petition—signed by 500 eligible voters in the district—to gain a position on the ballot.  Unlike regular contests, there would be no primary election to reduce the number of candidates to two.  All successful petitioners would be placed on the general election ballot.

Twenty-four candidates, including Hennessy, successfully petitioned for the open 10th District seat.  The candidates spent over $300,000 in their collective campaigns.  After the district’s Republican Party announced that it would consider endorsement, five candidates applied for endorsement, and the party endorsed Christopher Penwell.  At least a dozen other candidates vowed to run nonpartisan campaigns.

Tad Jude, compensation attorney for the Minnesota Department of Labor and Industry, won the election with 15.69 percent of the vote.  Jude likely benefited from name recognition, having been elected to the Minnesota House and Senate and Hennepin County Board of Commissioners, and having run for U.S. Congress.

The odd circumstances of this race—and unwieldy general election ballot—call for reform of Minnesota’s ballot-access law.  When the vacancy in nomination occurs well before the primary election, successful petitioners should run in the primary election to reduce the field to two candidates on the general election ballot.

 

Campaign Activities

Candidates generally relied on campaign methods traditional in Minnesota judicial elections—lawn signs, billboards, direct mail, radio, and newspaper advertisements, and appearances at county fairs and in community parades.  All active candidates had campaign websites, and some used social media sites such as Facebook.  At least two candidates purchased cable television ads.

Spending on judicial campaigns was modest, even by Minnesota standards.  Justice Helen Meyer spent approximately $75,000 in her campaign for reelection, but other candidates for appellate seats spent far less.
In challenges to district court incumbents, none of the candidates spent over $20,000, except for Judge William Leary, who spent over $30,000 to retain his seat.  Candidates for open seats spent more, topped by Timothy Costley in the 6th District ($55,227) and Mark Ireland in the 2nd District ($53,324).  Eight candidates in the open 10th District race spent more than $20,000 each.  Many candidates invested heavily in their own campaigns.  Candidates on the general election ballot contributed or lent their campaigns over $325,000.

 

Partisan Activity

Minnesota’s Republican Party returned to the judicial elections arena, endorsing three candidates for appellate seats: Greg Wersal and Timothy Tingelstad for supreme court, and Dan Griffith for court of appeals.  Republicans also endorsed district judge candidates Darrell Carter (9th District) and Christopher Penwell (10th District).  The Republican Party campaigned openly for its endorsed candidates, featuring the judicial candidates in its electronic communications to voters and on its sample ballots.  All of the Republican-endorsed candidates were defeated.

As it had in prior election years, the Minnesota Family Institute circulated a questionnaire to appellate court candidates to gather information for its 2010 Voter’s Guide.  The questionnaire asked candidates’ positions on hot-button issues such as abortion funding, “homosexual” marriage, and sodomy laws.  The three Republican-endorsed candidates provided their views, but none of the incumbents substantively responded to the questionnaire.  In its Voter’s Guide, Minnesota Citizens Concerned for Life—an antiabortion organization—gave its support to Greg Wersal and Tim Tingelstad.

Elections in Other States

Voters Oust Iowa Justices. Iowa seemed an unlikely battleground over judicial independence, activism, and accountability.  The state adopted an appointment/retention election system by constitutional amendment in 1962.  Since then, not one justice had been removed by Iowa voters.

In the 2010 election, however, Iowans voted not to retain three Iowa Supreme Court justices.  Each of the justices received 45-46 percent “yes” votes, but they needed a majority to keep their jobs.  The justices served until the end of 2010; the governor has responsibility to appoint their successors.

The main issue in the election was the court’s unanimous April 2009 decision striking down a state statute limiting civil marriage to a union between a man and a woman as violating the equal protection clause of the Iowa Constitution.  Antiretention advocates framed the issue as judicial activism, but many saw the Iowa Supreme Court election as a referendum on gay marriage.

Bob Vander Plaats (an unsuccessful candidate for the Republican nomination for governor) and several national conservative groups led the campaign against the three justices.  The National Organization for Marriage, American Family Association, Campaign for Working Families, and Family Research Council joined local conservative politicians, pastors, and the Iowa Christian Alliance in the campaign. The out-of-state groups reportedly spent over $1 million in the campaign; the National Organization for Marriage alone invested $600,000.

The justices and their supporters were slow to respond to the “vote no” campaign.  The justices decided not to raise money and made appearances only near the end of campaign.  Retention supporters were outspent by opponents.

Leaders of the antiretention efforts declared that the election would send a message across the nation that judicial overreach would no longer be tolerated.  The justices’ supporters expressed concern that the result may deter judges from protecting constitutional rights and that removing judges based on one unpopular decision sets a dangerous precedent.

Illinois Chief Justice Retained. Business interests opposed the retention of Chief Justice Thomas Kilbride of the Illinois Supreme Court.  Groups such as the Illinois Civil Justice League and United States Chamber of Commerce targeted Kilbride because, they said, he had a “terrible record on issues involving job creation.”  A central issue was Kilbride’s vote to strike down medical malpractice reforms, including caps on noneconomic damages.  Even though opponents based their challenge on business issues, they ran advertisements portraying Kilbride as soft on crime.

The campaign—pro and con—cost over $3 million.  Kilbride’s supporters—principally unions, plaintiffs’ lawyers, and the Illinois Democratic Party—outspent his opponents.  While traditional pro-Democratic groups supported Kilbride, so did former Republican Governor Jim Thompson, the Chicago Tribune, and the National Rifle Association.

Supreme court justices in Illinois run in districts.  Kilbride was elected from the state’s 3rd District—a 21-county district ranging from Chicago’s western and southern suburbs to the Mississippi River.  Kilbride needed 60 percent of the vote to retain his seat; he received 66 percent.

Alaska Justice Retained. Social conservatives campaigned against retention of Alaska Supreme Court Justice Dana Fabe, citing court opinions involving abortion and gay marriage issues.  The effort was funded by the political arm of a national group, Focus on the Family.  Fabe received high marks in judicial evaluations, and the Alaska Judicial Council, a public evaluation commission, recommended that voters retain Fabe.  Fabe received 54 percent “yes” votes to retain her seat.

Traditional Partisan Battlegrounds. In Michigan, candidates and interest groups spent over $5 million in campaigns for two supreme court seats.  Republican candidates won both seats, defeating a Democratic incumbent to take control of the court.  In Ohio, Republican Maureen O’Connor defeated the Democratic chief justice of the supreme court in a race in which spending topped $2.7 million.  Republicans swept three seats on the Alabama Supreme Court where spending exceeded $3 million.

 

Other States. Nevada voters defeated (58% “no” votes) a constitutional amendment that would have adopted a judicial merit-selection and retention election system.  A “Clear the Bench Colorado” campaign—targeting defeat of three supreme court justices for their opinions in property and tax cases—failed.  The justices prevailed with 59-61 percent of the vote.  Kansas Supreme Court justices also retained their seats after being targeted by abortion opponents.

 

The Future

While Minnesota largely avoided partisan rancor in judicial elections in 2010, the state is not immune from high-dollar, partisan campaigns.  Simple geography suggests that Minnesota may soon join the partisan fray.  Major political judicial battles have occurred recently in Midwestern states—Iowa, Wisconsin, Illinois, Michigan, and Ohio.  Partisan elections are generally triggered by two factors—an issue that motivates challengers and their supporters, and money to finance a serious campaign.

Chief Justice Lorie Gildea and Associate Justices G. Barry Anderson and David Stras, all appointees of Republican Governor Tim Pawlenty, are up for election in 2012.  Since virtually all partisan challengers in Minnesota have come from the Republican side, perhaps these justices will avoid a political challenge.

Generally, Minnesota judges have run positive campaigns, featuring their experience, qualifications, and widespread support.  They have traditionally ignored their opponents.  Closer election results in 2010, however, suggest that judges’ supporters may want to be proactive in defining their opponents.

George W. Soule is a founding partner of Bowman and Brooke LLP in Minneapolis.  He is former chair of the Minnesota Commission on Judicial Selection.  In 2010, he was cochair of Citizens for Justice Helen Meyer and the Christopher Dietzen Volunteer Committee.

 

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