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

Lessons from Recent Judicial Elections

Now that the election season is behind us it’s time to examine the results and what they portend for future judicial elections in Minnesota.  At first glance it would appear that Minnesota once again avoided the unseemly partisan politics affecting states just across our borders.  No Minnesota Supreme Court justice was ousted over a controversial decision as happened recently in Iowa when voters removed three justices who participated in a ruling favoring same-sex marriages.  There were no multimillion- dollar ad campaigns financed by third parties targeting the removal of a sitting justice.  Yet, a close examination of Minnesota’s recent elections shows there may be storm clouds brewing at both the appellate and district court level.

The Supreme Court

Justices David Lillehaug and Wilhelmina “Mimi” Wright were reelected to the Minnesota Supreme Court.  Justice Lillehaug received 53 percent of the vote on his way to defeating challenger Michelle MacDonald.  Justice Wright received 57 percent of the vote in her victory over challenger John Hancock.  Of the two races, Justice Lillehaug’s contest drew the most attention.  That attention, however, did not center directly on the candidates’ qualifications, work experience, or temperament.  Rather it focused on Ms. MacDonald, who sought and won the Republican Party’s endorsement.  She was then barred from campaigning at the Republican booth at the Minnesota State Fair after the party learned that she had been charged with a DWI (she was later convicted of refusing to submit to a chemical test and obstruction but acquitted of the DWI after a trial in September).  This was not the first time a supreme court challenger has been endorsed by a political party.  The race nevertheless offers a lesson in the dangers of political parties becoming involved in what should be nonpartisan judicial races.

The vote totals from the Lillehaug and Wright races confirm a recent trend: Minnesota Supreme Court elections are getting much closer.  There was a time not long ago when challenged supreme court justices regularly won reelection with well over 60 percent of the vote.  That was the case in eight of nine contested supreme court races between 1996 and 2006.  Since then incumbent justices have received greater than 60 percent of the vote in only three of nine contested races between 2008 and 2014.  And repeat challengers are getting more votes.  In 2000 John Hancock ran against then-Justice Joan Ericksen (now a United States District Court judge) and received just under 35 percent of the vote.  In his most recent race against Justice Wright he improved his vote total to 43 percent despite raising no money and not setting up a campaign website.

Supreme court races are also getting more expensive—at least for sitting justices.  Historically supreme court elections have not been high buck affairs.  Incumbent justices and their opponents rarely raised more than $50,000.  In the last two election cycles (2012 and 2014), however, challenged justices each raised over $100,000 in three contested races.  By contrast, their challengers raised less than $950 each.  If you can get 43 or 47 percent of the vote raising little or no money, imagine what might happen if a well-financed candidate, whatever their qualifications, challenged a sitting justice.

The District Court

Partisanship was relatively contained in district court races across the state.  All challenged incumbents came out on top.  In the 10th District incumbents Nancy Logering (Anoka County) and Susan Miles (Washington County) defeated challengers.  In the 7th District incumbents Steven Cahill (Clay County) and Andrew Pearson (Stearns County) each won reelection.  In the 5th District incumbent Christina Wietzema (Cottonwood County) prevailed over her opponent.  Finally, in the 4th District incumbent James Moore was reelected.  Incumbents received between 51 and 66 percent of the vote with no evidence of direct political party involvement.

The same cannot be said for three closely contested races for open seats in the 4th District (Hennepin County).  According to Minnesota Lawyer (September 25, 2014), five of the six candidates in those races accepted invitations to attend a meeting of the 3rd District DFL on September 17 (one candidate was not invited because she had received the Republican Party recommendation, which she did not seek).  The candidates who attended didn’t seek the DFL endorsement and none received one.  Yet, the email invitation is telling: “Please feel free to come, bring lawn signs, sign-up sheets for volunteers and literature to our meeting.  We are interested in hearing from you regarding your run for judge.  We will be providing recommendations to our members for voting in this election.”  We should all be concerned about what HCBA President Tom Nelson calls the “subtle entanglement” of politics and judicial elections, even among well-meaning candidates for judicial office.

MSBA’s Judicial Election Policy

The MSBA’s judicial election policy supports “a system of judicial elections that is as free of political influence as possible” and includes “the retention of each judge decided by the voters.”  This policy is set to expire on December 31, 2014.  The Assembly will debate whether to continue the current policy at its next meeting on December 12.  Whatever the outcome of that important debate, the organized bar clearly has a stake in educating the public about judicial candidates and the judicial role.  I tell people that judicial candidates are, or should be, different from those seeking legislative or executive offices because they must remain fair and impartial.  The focus must be on the judicial candidate’s experience, intellectual ability, work habits, and temperament.  My concern is that those principles can be easily lost in judicial
elections infused with partisan politics.

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Richard H. Kyle Jr.

Richard H. Kyle Jr. was the 2014-15 president of the Minnesota State Bar Association. A shareholder with Fredrikson & Byron PA in Minneapolis, he is a criminal defense lawyer who has practiced law in both solo and large firm settings since being admitted to the Minnesota Bar in 1990.