A March 8 MinnPost article by Margaret M. Marrinan was critical of current public-interest efforts at the Minnesota Legislature, mostly by ordinary citizens who want to protect and preserve Minnesota's impartial state courts — and the public's trust and confidence in them — against the looming and real threat of intrusion of self-serving politicization by special-interest concerns and large-money donors seeking to influence the outcome of judicial elections.

Minnesota will not be immune to this threat, just as retired U.S. Supreme Court Justice Sandra Day O'Connor told a bipartisan gathering of Minnesota state lawmakers last month. The threat is heading our way, just as it has come to other states with contested judicial elections — most notably those in other central states such as Ohio, Illinois, Michigan and, most recently, Wisconsin.

The bills now under consideration before the Minnesota Legislature are HF 224 (Rep. Simon, DFL-St. Louis Park) and SF 70 (Sen. Ann Rest, DFL-New Hope). They are seeking to have a proposed constitutional amendment put on the general election ballot in November 2010. That would give all Minnesotans a voice in deciding for themselves how they think their state court judges should best be selected and retained in order to maintain an impartial state court — as well as the public's trust and confidence in it.

Currently in Minnesota, state court judges are subject to standing for contested elections every six years. Unlike the legislative and executive branches, where public-policy debates involving competing ideologies were meant to be and should be vigorously conducted, the judicial branch was meant and needs to be the impartial forum for the peaceful and objective resolution of disputes pursuant only to the law. 

Judiciary's role exemplified by lady justice
This special role of the judiciary in our society is exemplified by the iconic figure of lady justice being blindfolded to outside influences as she weighs each individual case measured solely upon the scales of facts and law. Minnesota has been fortunate to have its judicial elections remain largely and relatively low key and nonpartisan, but that landscape has irrevocably changed in ways that are incompatible with the judicial branch's unique position among the three branches of government.

Now, because of recent U.S. Supreme Court and other federal court decisions, candidates for state judicial office can, and do in a great many other states around the country, make statements amounting to campaign promises on specific issues. They can state predisposed beliefs they hold relative to certain case types that might come before them if elected, and they can directly solicit and receive a great deal of campaign contributions from special-interest groups, as well as from parties or attorneys that can be expected to appear before them in court at some point if elected. 

Negative attack-ad style campaigns in judicial elections, designed and meant to inflame rather than inform the voters, are also sweeping across our neighboring states, and special-interest campaign spending has resulted in over $200 million being pumped into contested state court judicial races in other states around the country in the first decade of the 21st century. This circumstance and impending threat to the impartiality of our state courts will only worsen in light of another even more recent U.S. Supreme Court decision, which permits outside interest groups to spend money independently of any organized campaign for the purposes of influencing the outcome of elections — including judicial elections — on behalf of candidates favorable to their special issues. 

A question of donor expectations
It would be naïve to believe that contributions or expenditures made in the tens of millions of dollars to or in support of judicial campaigns were not done with the expectation that the receiving candidate will, if elected, feel pressure to or in fact be responsive to the special interests of the donors; there is no place for this type of money-driven influence buying in the selection of judges. How could ordinary Minnesotans have faith and confidence that their case would be fairly heard and decided on the facts and law alone if they ever had to be concerned about not being of the correct ideological persuasion as the presiding judge — or concerned that their opponent in court had contributed large sums of money directly or indirectly to the judge's past election campaigns?

This type of potential politicization and injection of big money into our state courts is not the type of state court selection/election process that most Minnesotans say they want when asked. In 2008, Decision Resources, Ltd., of Minneapolis, conducted a survey of regular Minnesotans, and 78 percent thought judicial candidates making pledges to political parties or on other special-interest issues threatens the fairness of the courts; 75 percent  thought judicial fundraising is a threat to the fairness of the courts; 74 percent believed that campaign advertising impedes the impartiality of judges; and 74 percent  (82 percent of respondents who identified as Democrat and 76 percent of respondents who identified as Republican) supported merit selection of judges with retention elections at the end of the terms of office (where all judges are subject to up-or-down votes by all voters on whether the judges would or would not serve a subsequent term).

Bills would give Minnesotans a choice
HF 224 and SF 70 would give all Minnesotans a vote on whether they want to continue having their state court judges stand for contested election subject to the influence of special interests and big money or whether they want to change their state's constitution so that the impartiality of and public's trust and confidence in the state courts could be protected and maintained. HF 224 and SF 70 do not mandate any change to our state's constitution in and of themselves; rather, if passed, these pieces of legislation give  Minnesotans a vote on whether they want Minnesota to switch to a system in which:

• State court judges would first be appointed based upon merit.

• Their performance while in office would be twice evaluated by a nonpartisan and independent commission, with the results made public to the voters.

• At the end of each eight-year term, all judges would be subject to a retention election, in which every voter would have a say in whether every judge would or would not serve a subsequent term of office.

• If the voters determined that any particular judge should not be retained for another term, rather than having outside special interests spending money to influence who the replacement might be, the resulting vacancy would initially be refilled by appointment based upon merit. 

Not a novel system
The retention election model, which Minnesotans should be allowed to debate and vote on, is not a novel system since it already operates successfully in several other states. And since under our present system only about 10 percent of sitting Minnesota state court judges ever have a challenger on the ballot at election time, it has the dual benefit of making all judges actually more accountable to all of the voters while at the same time minimizing the negative impact and influence of money and special interests on the courts' impartiality.

For example, unlike the approximately $200 million that has flooded into contested judicial elections in other states in the first decade of the 21st century, only approximately $2 million was raised and spent in jurisdictions where state court judges are subject to retention elections during that same period.

Moreover, the specter of "ambush" elections in the retention election model, as suggested in the Marrinan article, is not supported by the real facts and experience on the ground nationally: In a survey of more than 6,000 retention elections since 1964, there have been successful attack campaigns only about 1 percent of the time. Indeed, even if a sitting judge were not retained as a result of a last-minute vote "no"-type campaign against the judge, while possibly unfair to that particular judge who might not be retained, the judicial system as a whole is the better for it because the voters' trust and confidence in the overall impartiality of the judicial system would remain intact since the replacement judge would be chosen through merit-selection appointment rather than through negative attack-style campaigns driven by special-interest money.

The proposed reforms that all Minnesotans would be permitted to vote upon if HF 224 and SF 70 are passed by the Legislature this session are supported by a diverse and often otherwise adverse cross-section of regular citizens and groups from all over the political and public spectrum who have come together in the Coalition for Impartial Justice.

To be sure, these public-interest reforms are supported by the Minnesota State Bar Association and the Hennepin County Bar Association, but more telling is the fact that they are supported by more than 21 other community-based citizens and business groups and past public officials. They include former Republican Gov. Al Quie, former DFL Senate Majority Leader Roger Moe, Common Cause Minnesota, the Center of the American Experiment, Growth and Justice, Gary Borgendale of KKMS 980AM, the Joint Religious Legislative Coalition, the Citizens League, the League of Women Voters — MN, the Minnesota AFL-CIO, the Minnesota Chamber of Commerce, the Insurance Federation of Minnesota, the Minnesota Council on Crime and Justice, the Minnesota Second Chance Coalition, the Disability Law Center, Mid-Minnesota Legal Assistance, WATCH, Take Action Minnesota, and the Sandra Day O'Connor Judicial Selection Initiative.

Trusting that Minnesotans don't want politicization
The Marrinan article was plainly wrong when it suggested that the members of the Coalition for Impartial Justice who are supporting HF 224 and SF 70 do not trust the common sense of the Minnesota voters. In fact, trusting the public-interest sense of the Minnesota voters to not want their state court selection/election process politicized and put up for sale to the highest contributor — as is happening in other states around us — is precisely why the members of the "Coalition for Impartial Justice" are supporting passage of these bills.

The Coalition for Impartial Justice does indeed trust the Minnesota voters, and passing those two pieces of legislation will not mandate any change to our current judicial selection/election system, but rather, passage of those bills will simply give all Minnesotans a voice and a vote on an issue of fundamental importance to the continued long-term stability of our state. All Minnesotan voters should be able to decide for themselves, on the ballot in November, the question of how they think best to select and retain their state court judges in order to maintain an impartial judicial system into the next century.

Leo I. Brisbois is the president of the Minnesota State Bar Association.