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

Judicial Selection Revisited: What Policy for the MSBA?

Six years have elapsed since the MSBA formulated its current policy on judicial selection in Minnesota. Depending on your viewpoint, much or little has changed since then to warrant continued support for change, but there’s wide agreement that an impartial, accomplished, and accountable judiciary is the goal.

Well before the 2010 Citizens United decision fundamentally altered the face of U.S. political campaigns, another Supreme Court case had already changed the landscape for Minnesota judicial elections. In 2002, the U.S. Supreme Court ruled unconstitutional Minnesota’s “announce” clause, which prohibited judicial candidates from publicly discussing their views on legal and political issues.

The decision in Republican Party of Minnesota v. White forced the Minnesota legal community to confront issues of money and partisan politics in an arena that had, until then, remained largely free of such concerns.

Spending in judicial elections has already skyrocketed elsewhere, making news in states like Texas with partisan judicial elections. The Lone Star state may seem far away both geographically and culturally, but the same phenomena have also appeared a lot closer to home in places like Wisconsin. One unfortunate effect of this river of dollars flowing into judicial elections is a growing cynicism among the public, which perceives not only elected officials but the supposedly impartial judiciary as “for sale to the highest bidder”—or at least carrying implicit debts of gratitude to campaign contributors and their interests.

In response to the White case, in 2006 an independent citizens group including MSBA members established what became known as the Quie Commission to consider the best way to address these issues. The commission issued its recommendations in 2007, and after vigorous debate, the MSBA adopted the policy described in the following statement:

The MSBA supports changing to a system of judicial selection and retention that is as free from political influence as possible and that includes: (1) initial screening of candidates by a merit selection commission; (2) appointment by the Governor from a list of candidates recommended by the merit selection commission; (3) evaluation of each judge’s performance by a nonpartisan evaluation commission; and (4) the retention of each judge decided by the voters with the result of the judge’s evaluation made known.

Six years later, MSBA leadership has called for a review of the policy. The MSBA Judiciary Committee and Legislative Committee have been considering the issue and will make recommendations (not available at press time) to the MSBA Assembly. The Assembly is slated to address the issue at its meeting June 28, immediately following the MSBA’s “Nine Days in June” annual convention, at which time they will decide whether or not to retain the current policy. The Legislative and Judiciary committees are expected to release their recommendations later this spring.

From Policy to Practice

For the time being, the MSBA’s policy remains aspirational. To become law, it would have to go on the ballot as a constitutional amendment. In fact, it would require two amendments: 1) to change the system from an open election with challengers who run for the judicial seat to a retention election involving a simple “yes” or “no” vote whether to retain or remove the judge; and 2) to require the governor to choose judges only from the merit selection commission’s recommendations. While most governors have generally followed the commission’s recommendations, they are not bound by law to do so. This amendment would also make merit selection mandatory for appeals court and state supreme court judges.

Those are, in fact, two significant elements in the MSBA’s position that differ from current procedure. The others (both of which would be included in the first ballot question) are:

a) Initial appointments vs. initial election. Under current procedure, judges reach the bench, at least theoretically, by running for election. In practice, most judges are appointed by the governor: Sitting judges step down before their terms expire, giving the governor the opportunity to appoint their replacements, who then appear on the ballot as the incumbents in the next election cycle. The MSBA policy (and first constitutional amendment) would make initial appointment the only means by which new judges could be named to the bench.

b) Public performance evaluation. A commission would evaluate judges and make public its determination of each judge as “well-qualified,” “qualified,” or “unqualified” (see sidebar).

The MSBA policy seeks to thread the needle, as it were, to provide for free speech, public participation (voting), and merit selection. Not everyone in the legal community has greeted the policy with wild enthusiasm, however. Critics’ concerns can be broken down into several categories.

If It Ain’t Broke …

The White ruling was decided more than ten years ago; what has been its effect on Minnesota judicial elections?

Nothing, says Tom Tinkham, a trial lawyer and a past president of the MSBA: Minnesota has seen neither more partisan speech nor more money flowing into state judicial elections.

Moreover, he notes, judges’ six-year terms help protect them from public blowback at the polls in response to unpopular decisions. And the Minnesota Code of Judicial Conduct, while it does not have the force of law, seeks to restrain judges’ partisan political activity and limit the impact of money in judicial elections by, among other things, not permitting donors’ identities to be revealed to the judge in question.

Michael Unger, the MSBA Secretary and a civil trial specialist with Unger Law Office, heads the MSBA’s Judiciary Committee. He concedes that Tinkham’s argument may have been strengthened somewhat by the passage of time, but he and Tinkham agree that the bar association has been active in “conveying the importance of not injecting politics into the process.”

But just because politicization of judicial elections hasn’t happened here so far doesn’t mean it can’t or won’t, cautions MSBA President Bob Enger, of Bemidji: “I’d hate to leave system open to that.”

Malia Reddick agrees. She’s the director of the Quality Judges Initiative at IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. She says Minnesota’s system is good, “but it could be better. It could be strengthened to prevent the possibility that Minnesota could become like other states, where all kinds of money is thrown around, where ideology is a big part of the race. The [MSBA policy] is designed to forestall that from happening.”

They’re Only Human

Others question the very premise of the policy—what’s so wrong about partisan elections, anyway? Judges are people, they have their own perspectives and views. Why shouldn’t the public know where they stand?

The problem comes back to eroding public confidence in the judiciary, says Enger. “We want to ensure the whole process remains stable, open and transparent.” On top of that, says Reddick, openly partisan judges can lead to infighting over which side will control the ideological balance on the court. “In general we believe in the process the MSBA is proposing,” she says, “because the system emphasizes qualifications, rather than how much money [the judge could] raise, or what their position is on abortion or same-sex marriage.”

Of the People

Other critics, including William French, an attorney in Rochester, find the appointive process profoundly undemocratic with a small “d,” the merit selection process even more so. Forcing the governor to appoint only from an approved list of nominees will simply reinforce the status quo, he says: “It’s a rubber stamp for entrenched interests.”

Diversity is another concern that arises with a merit selection commission. Lori-Ann Jones, an attorney with Fredrikson and Byron and president of the Minnesota Association of Black Lawyers, does not necessarily question the merit selection process per se, but wants to be sure the court reflects the population. It goes, again, to public confidence in receiving a fair hearing, she says: For litigants appearing in court, “if you don’t feel like someone understands your situation, you’re less likely to feel like you’ve been heard.”

Offering another perspective, Daniel Gerdts, immediate past president of the Minnesota Association of Criminal Defense Lawyers, supports the merit selection process: “I’d much rather have a bunch of smart, well-educated people do a thorough background check [on prospective judicial appointees],” he says. “We might end up with a better system than we have now. I understand the democratic principle of having the public choose judges, but I don’t want my judges [only] accountable to the public, I want them accountable to the Constitution.”

And, as Enger points out, with merit selection, special interests can’t come in and “buy” an election—for the simple reason that no one knows ahead of time whom the governor will appoint.

Independent Voices

Perceiving the same problem with retention elections as with merit selection and the appointive process, critics say such elections prevent anyone but the well-connected from becoming judges. Gerdts reports a vein of thought among some lawyers who think that open elections are “the only way for truly independent candidates who aspire to the bench actually to reach that goal.” Keeping that door open is a concern for Lori-Ann Jones, although paradoxically, retention elections could help strengthen a diverse bench. Minority judges who have initially been appointed in the middle of an election cycle, she notes, are more likely to face contested elections because challengers calculate that they will be easier to beat. A retention election, she says, will allow judges simply to focus on their jobs rather than making sure their name and face are before the public.

Avoiding Ambush

District court judges in particular have concerns about retention elections.

In a contested election, challengers have a filing deadline, so sitting judges know in advance whether they will be opposed. Such a rule clearly doesn’t apply in a retention election, says Judge Teresa Warner of the 2nd Judicial District, who serves on the Minnesota District Judges Association election committee. But that leaves district judges open to an 11th-hour negative media blitz, leaving them with little time or money to combat charges leveled against them.

What her association would like to see, she says, is some kind of advance notice that a group or groups plan to mount a “vote no” campaign in a retention election.

The notion raises some 1st Amendment issues: Is it possible to restrict someone’s right to political speech because they have not filled out the right paperwork by a certain date? But Warner says that they are not seeking to silence anyone, merely to provide a level playing field.

The concerns are valid, says Unger, but district judges are far less likely to be a target of such a media campaign than are appellate judges. Moreover, says Minnesota Bar Association District 13 President Benjamin Denton, who practices in Pipestone, “as a practical matter, it would be very difficult to defeat an incumbent, at least outstate,” even in an age of far-reaching media like television and the Internet.

The planned performance evaluations should offer judges some measure of assurance, says Reddick of the IAALS. If a judge receives a “well-qualified” or “qualified” evaluation, presumably voters can weigh that against any kind of negative campaign assertions. (If the judge receives an “unqualified” determination, presumably it would be in the public’s interest to consider removing the judge.)

Problem Solved?

Another critique of retention elections argues that they don’t even solve the problem they’re meant to address. After a ruling legalizing same-sex marriage in Iowa, three state supreme court judges came up for retention election in 2010. Interests from across the country funneled huge amounts of money into a campaign to unseat them—and succeeded.

The MSBA’s proposal would not eliminate the possibility, says Bruce Jones, a partner at Faegre Baker Daniels, LLP, in Minneapolis. But the advantage of retention elections as demonstrated in Iowa, he notes, is that the forces opposing the judges were not able to replace them with judges who suited their ideological tastes; instead, the appointive process simply started over. “The three replacements [in Iowa] are fine judges—they don’t have their own agenda,” says Jones. “The consequences are that the system maintains its integrity.”

No Easy Answers

Most observers, regardless of perspective, agree that judicial selection will remain a tricky issue for the foreseeable future. Finding a solution that accommodates a complex intersection of rights—some of which compete with each other—can be a delicate balancing act, at best. “It’s a little bit like Diogenes looking for an honest man,” says Judge Kevin Burke, who has been a judge for almost 30 years. “I don’t know that there’s a perfect system that will work in every state to deal with the present problem. So it has to be tailored to the state you’re in.”

 

Judy Arginteanu is a freelance journalist. She previously covered Minnesota courts for the St. Paul Pioneer Press.

 

Judicial Performance Evaluation

While the retention election provision is designed to make judges’ politics or rulings less of a flashpoint, the performance evaluations are designed to help voters know a little more about whom they’re voting for—and, many would argue, make the elections a more valid representation of the public will. Under the current system, even engaged, interested citizens often know little or nothing about judicial candidates, resulting in many fewer ballots cast in the “down-ballot” races. Voters may come to the polls knowing exactly whom they will vote for in presidential, congressional and even state and city elections, but for lack of information may skip the spot where they can vote for judge—much as they might do for obscure elective offices such as soil and water conservation district representative (offices that, most would argue, wield much less power).

The performance evaluations would at least give voters some indication of whether a judge is performing the role with competence and fairness. That’s the standard by which most observers and interested parties say the public should evaluate the judiciary, yet many members of the public may not even realize that different standards apply. “A lot of voters don’t fully understand what a judge does—it’s a different kind of elective office than most offices; it’s not a representative or advocacy role,” says Unger.

“The public performance evaluation gives the public the right kind of information: a judge’s knowledge of law, whether they treat parties impartially, their demeanor on the bench,” says Reddick. “It’s a question of process rather than outcome. In a few states recently, judges have been challenged for rulings. This evaluation wouldn’t take outcomes into account.”

The evaluation commission, as proposed by the MSBA, would include 24 members. Among its provisions: It could not include sitting judges; no member could sit on the performance commission and the merit selection commission at the same time; and attorneys on the commission must have practiced for at least five years. The governor, state supreme court, and legislature each would appoint eight people, and the number of lawyers who may be appointed would be limited. In addition, the MSBA proposal provides for geographic and minority representation on the commission.

While critics do not generally dispute the need for public performance evaluation, differences arise over evaluation criteria and who should be making the evaluations. “A real evaluation would be by the people who appear before the judges,” says Tinkham, who would like to see them fill out an evaluation form that becomes public. While he agrees that a given individual may be biased for or against a judge, he thinks that with heavy participation—“a couple thousand people doing evaluations over several years,” these biases would cancel each other out and a fair picture would emerge.

Judge Burke also would like to see performance evaluations, to be filled out by litigants according to a “bill of rights”:

  • The right to be heard,
  • The right to be treated with respect,
  • The right to understand the judge’s order, and
  • The right to understand why the judge made that particular ruling.

Both Burke and the IAALS’ Reddick agree that the evaluations would not only help inform the public but also help judges get more perspective on how they’re doing their job. In fact, Burke wants to see this form of feedback begin whether the selection procedure changes or not, although he thinks the results should remain confidential if open elections continue.

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