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Judicial reform: A move to insulate Minnesota from a national trend toward bare-knuckle politics in judicial elections

Of the four states that border Minnesota, none is “closer” than Wisconsin. More than the others, Wisconsin feels like kin because it shares a similar politics, culture and demographic profile.

That’s why the infusion of rough-and-tumble politics into Wisconsin’s judicial elections should set off alarm bells on this side of the border. Nearly a year has passed since an insurgent candidate ousted Louis Butler from the state Supreme Court after falsely accusing him of freeing a child molester and making other dubious claims against him. Altogether, the candidates and third-party interests spent nearly $6 million on the race.

It’s part of a national trend that’s bringing bare-knuckle politics and big money into judicial races, dragging judges through the same mud as other candidates and pushing aside the principles of independence and impartiality that have cloaked the judiciary to this point. Last year, $33 million was spent on contested state Supreme Court races across the country, much of it on scurrilous TV commercials.

According to the insurgent idea, judges should not be prohibited from announcing their views on the hot topics of the day (gun control, abortion, death penalty, etc.) and should feel free to rule on cases involving their campaign contributors. What’s the point of elections if voters can’t determine which side a judicial candidate is likely to favor? At least that’s the rationale.

Quie expected to testify before Senate committee
The Minnesota Senate’s Judiciary Committee will take up the topic next Thursday. Former Gov. Al Quie, a Republican, is among those from both parties expected to testify in favor of amending the state’s constitution as a way to buffer Minnesota from the national storm. “Some people say that these abuses could never happen here, but that’s not true,” Quie said over breakfast on Wednesday. “Once the war starts the shooting doesn’t stop.”

Former Gov. Al Quie
Pogo Press
Former Gov. Al Quie

Quie is chairman of a bipartisan reform commission formed in 2006 to find a remedy for Minnesota. The proposed constitutional amendment would require all judges to submit to periodic professional performance reviews, then stand for a yes or no election every eight years based on those reviews. If a judge is recalled by voters, the governor would appoint a replacement based on a merit formula.

Contested judicial elections — in which a candidate challenges a sitting judge — would be eliminated. That alone, said Quie, would minimize the chance that big-money smear campaigns could gain a toe-hold in Minnesota. Quie and his allies hope the Legislature places the amendment on the ballot in 2010.

Opposition is expected
Opposition is expected from the Minnesota District Judges Association and from conservative elements that have been successful in using political attacks and insurgent candidates to oust sitting judges, especially those viewed as hostile to business and soft on criminals.

Labor unions and other left-leaning groups have also leaped into these contests with accusations that judges are sleeping on the job (Michigan) and coddling big business.

The New York Times recently highlighted a 2004 election in West Virginia, where a mining-company executive spent $3 million to oust a Supreme Court justice. The big issue was that the justice had supposedly released a pedophile. After joining the court, the newly elected justice tipped the court’s 3-2 balance and tossed out a $50 million jury verdict against the executive’s mining company. The executive, Don L. Blankenship of Massey Energy, told the Times that his real motive was to remake the court so it would be friendly to business, but that he had used the pedophile angle to enrage voters.

Grisham novel tracks tactics
John Grisham’s novel, “The Appeal” (2008), drew my own attention to the issue. The story closely resembles recent state Supreme Court elections and tactics in West Virginia, Wisconsin and other states.

“There is too much special interest money and influence in state court elections, retired U.S. Supreme Court Justice Sandra Day O’Connor said in a statement released on Election Day last fall. “It endangers the public’s faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reform.”

Ironically, O’Connor’s vote in a 2002 decision contributed to the current situation. The case that set off this entire trend originated in Minnesota.

When Gregory Wersal ran for a seat on the state Supreme Court in 1996, and lost, he distributed campaign literature critical of court members. His tactic had drawn an ethics complaint. So when he tried again in 1998, he ran alongside a preemptive lawsuit against the state’s Board of Judicial Standards, asserting his right to free speech in his campaign. Minnesota’s Republican Party joined the suit, warning the board and its chairperson, Suzanne White, not to deprive the public of hearing Wersal’s views.

Lower courts ruled against Wersal and the Republicans; the U.S. Supreme Court, in a 5-4 decision (Republican Party of Minnesota v. White), ruled in 2002 that Minnesota’s rules had deprived Wersal of free speech. Justice Antonin Scalia wrote the majority opinion, to which O’Connor concurred.

Donations as free speech applying to judicial elections
In 2005, the Appeals Court (Eighth Circuit) ruled further that campaign money is also an expression of free speech (Buckley v. Valeo, 1976) and applies to judicial elections. In 2006, in a speech at New York University, O’Connor expressed regret for her vote, given the decision’s impact on judicial elections.

States use a wide variety of methods to seat judges. Initially, governors appoint most judges. In 29 states, including Minnesota, they stand for election every few years and they are open to challenges. In 20 states, judges stand for an up-or-down vote of confidence. If a judge fails to win approval by voters, a replacement is appointed. Eight states use appointments only to fill judicial seats.

Minnesota has, so far, escaped the national trend toward politicization. Last year, two Supreme Court justices drew opponents and withstood challenges without sensationalized campaigns. Six Appeals Court judges were reelected, including one who drew a challenger. Of 119 District Court judges up for reelection, seven drew opponents, but all were reelected.

Wisconsin contest still worries reformers
But last year’s Wisconsin contest continues to worry Quie and others pushing for reform. In a letter to voters, the successful challenger, Mike Gableman, accused the incumbent Butler of being the “deciding vote” resulting in the “release of [a sexual] predator into Milwaukee County.” But the predator was never released. He served his complete sentence before offending again.

An ad purchased on Gableman’s behalf claimed Butler overturned a murder conviction despite overwhelming evidence of guilt. But the overturn came because of new DNA evidence that cast doubt on the defendant’s guilt. “Butler sides with criminals nearly 60 percent of the time,” another ad proclaimed.

Whether judges are essentially the same as other candidates for office lies at the heart of the argument. No one pretends that judges aren’t influenced by the issues of the day, or by their own political leanings. But, as outlined by the National Center for State Courts, “a judge’s job is to make decisions based on facts presented and the applicable law in individual cases. Judicial candidates can neither reward their campaign supporters, nor, if elected, work with those supporters to advance shared objectives.”

Quie’s effort at reform has drawn support from across the political spectrum. Among supporting organizations are the Citizens League of Minnesota, the Center of the American Experiment, the Minnesota AFL-CIO and the League of Women Voters. Among the individual supporters are several former members of Congress (Dave Durenberger, Don Fraser, Bill Frenzel and Tim Penny), three former governors (Quie, Wendell Anderson and Arne Carlson), as well as former Vice President Walter Mondale, Secretary of State Mark Ritchie, former attorney general Warren Spannaus, Supreme Court Justice Alan Page and businessman Vance Opperman.

Comments (3)

  1. Submitted by Gary Pagel on 02/20/2009 - 01:57 pm.

    It’s about time!

    Fifteen years ago State Senator Carol Flynn chaired the Senate Judiciary Committee and offered very similar legislation which would have continued to have the Governor appoint judges with the advice of a non-partisan panel. After a six year term the judge would stand for election which would determine whether he or she should serve another term. If they were voted out the Governor would then appoint another qualified person.

    Interestingly it was the Supreme Court justices who objected to the proposal, fearing special interests would mount a campaign to oust a sitting judge they didn’t like. I guess they have figured out that that can happen under the present system too.

  2. Submitted by Alonza Fronczak on 02/20/2009 - 03:47 pm.

    The very first line is non-factual…

    Minnesota shares borders with five states not four. These five are:

    On the east:
    On the south:
    On the west:
    South Dakota
    North Dakota
    When I count the above, I get 5 so I do not know how you count them. Anyone that looks at at Lake Superior at Two Harbors can see Michigan water.

  3. Submitted by Michael Friedman on 02/20/2009 - 04:34 pm.

    Eliminating contested elections may be giving too much power to the appointment process. Another solution would be to amend professional responsibility codes for attorneys and judges to include prohibitions against false statements about their opponents in campaigning — to include public disavowal of false advertisements produced by a third party — under penalty of license. This would have prevented the Wisconsin fiasco if the winner became ineligible to serve, and would certainly raise the risks for the sort of negative campaigning only the wrong people want.

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