The following editorial appeared in the Rochester Post-Bulletin.
Quick quiz: What do the blockbuster films “The Pelican Brief,” “The Firm” and “The Runaway Jury” have in common? Answer: They’re all based on legal thrillers by novelist John Grisham, and in each one, the good guy wins.
Unfortunately, real life doesn’t always imitate art. But art sometimes imitates real life, with all of its unfairness and ugliness.
Grisham’s lesser-known “The Appeal,” published in 2008, is thinly veiled commentary on what happens when money and politics are allowed to intrude upon our legal system — and as such should serve as a cautionary tale for Minnesota.
The novel’s plot is straightforward. A woman who has lost her son and husband to cancer wins a lawsuit against a massive chemical corporation for causing their deaths. The corporation doesn’t want to write a check for $41 million, so instead, it finds a young, conservative, utterly inexperienced lawyer and tells him, “You should be a state Supreme Court justice.”
With the corporation’s cash behind his election campaign, he unseats a qualified, experienced justice and eventually casts the deciding vote to overturn the earlier ruling. The corporation wins. The widow loses.
No wonder this downer of tale wasn’t turned into a movie. But could such a travesty happen in real life?
Absolutely. In fact, it already did.
Beginning in the late ’90s, two West Virginia coal mining companies engaged in a legal brawl. After one company was awarded a $50 million judgment, the other poured $3 million into a Supreme Court of Appeals election. Their candidate won and three years later voted to overturn the earlier judgment against the company that had funded his campaign. This case, known as Caperton v. A.T. Massey Coal, ended up before the U.S. Supreme Court in 2009, which ruled 5-4 that the judge in question should have recused himself.
Which brings us back to Minnesota.
Before 2005, our state had a code of judicial ethics that essentially forbade the politicizing of judicial elections. Candidates were prohibited from expressing their views on controversial topics that might come before them if elected.
That changed in 2005, when the U.S. Supreme Court ruled in Republican Party v. White that Minnesota’s code violated the First Amendment guarantee of freedom of speech. That ruling, when combined with the 2012 Citizens United ruling that permits unlimited corporate spending on behalf of a candidate, has created an environment in which a sitting judge in Minnesota could be targeted by a candidate who has the backing of a political party, a corporation or a wealthy individual who has an ax to grind.
Fortunately, this problem hasn’t materialized yet, and there’s an effort afoot to make sure it never does.
As we get closer to the start of the 2014 session of the Minnesota Legislature, we’re going to hear a lot about The Impartial Justice Act. It’s a proposed constitutional amendment that attempts to keep money and partisan politics out of Minnesota’s judicial system.
If passed as currently proposed, it would end head-to-head elections in which sitting judges are on the ballot against named opponents (or no opponent at all, which is usually the case). Instead, judges would be subject to “retention” elections, in which voters decide whether to retain or expel them. Replacements for judges who are voted out would be appointed by the governor, who would choose from a list of candidates who had been screened and recommended by a Commission on Judicial Selection.
Of course, retention elections won’t do much good if voters know virtually nothing about the judges, as is currently the case, but that information gap would be bridged by the Impartial Justice Act. A 24-member Judicial Performance Evaluation Commission would collect reports from attorneys, litigants and other judges and issue report cards on judges during the year in which they are on the ballot for an up-or-down vote.
The amendment’s backers hope to see it on the ballot in November 2014. Among the most prominent of those supporters is former Minnesota Supreme Court Chief Justice Eric Magnuson, who two weeks ago came to the Post-Bulletin to share his thoughts with our editorial board.
One comment sums his views up quite nicely: “If you elect judges in a political manner, whether they act politically or not, here’s the real damage — they’ll be perceived by the public as political, as biased and potentially unfair. That, to me, is the greatest danger. The justice system gets its authority not just from the Constitution but because the people trust it.”
We heartily agree. Minnesota should act now to prevent politics from invading its judicial system.
Reprinted with permission.
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