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Recent legal, political changes could endanger Minnesota’s highly regarded judicial selection system

dayton and wright photo
Courtesy of the Governor's Office
Gov. Mark Dayton appointed Justice Wilhelmina Wright to the Minnesota Supreme Court in August of 2012.

Minnesota’s judicial system — and the way judges are selected for office — is highly regarded nationwide, but experts and observers say serious damage to the entire process may be inevitable if recent legal and ideological shifts aren’t addressed.

While Minnesota so far has avoided the expensive, highly politicized judicial elections that have plagued states from West Virginia to neighboring Wisconsin, we may not stay so lucky for long.

A 2005 court decision opened up the “Pandora’s box” of special-interest attention to judicial elections, according to judicial observers.

Now, some of those elections have begun to resemble expensive legislative and gubernatorial races in other states, with outside groups pouring money into the campaigns and political parties endorsing judicial candidates.

That’s a far cry from the air of impartiality that judges have attempted to maintain historically in the typically uncontested, nonpartisan races.

But an unlikely — and broad-based — coalition of groups, ranging from the Minnesota Chamber of Commerce to the AFL-CIO, is working to ensure Minnesota’s judicial system remains worthy of the public trust.

They want to add to Minnesota’s current protections to maintain a well-functioning, highly regarded judiciary. Advocates say that if reforms aren’t put into action soon, the landscape of Minnesota’s judicial system will be irreparably harmed.

“It hasn’t happened … but it’s a loaded gun,” University of Minnesota political science professor Larry Jacobs said, echoing a handful of other experts.

“There’s no reason why this won’t happen in Minnesota,” he said, “and my hunch is it’s going to happen sooner than people think.”

Experts point to Minnesota’s judicial selection process as a key reason for the state’s strong judicial system with highly qualified judges and public faith that justice will be served.

Current practices help Minnesota

Minnesota’s current judicial selection process shields the state from the big-money, special-interest-heavy elections that have started sweeping through other states.

Although judicial elections occur frequently in Minnesota, more than 90 percent of judges reach the bench as gubernatorial appointees after undergoing a rigorous outside application and review process known as “merit selection.”

“That probably has protected us also from some of the abuses of other states,” said Sherri Knuth, public policy manager at the League of Women Voters of Minnesota.

The vast majority of judges exit the bench partway through their terms, leaving their replacements up to the governor. A mandatory 70-year-old retirement age for judges also makes turnover more frequent.

Judges in Minnesota — from the district court up to the state Supreme Court — serve six-year terms before they must stand for re-election. There are special circumstances for judges that are appointed to fill in during a different judge’s term. Almost every election is uncontested, and challengers nearly always lose against incumbent judges.

So, once a governor appoints a judge, their incumbency almost ensures repeat terms.

While some argue that the current system doesn’t allow new blood into Minnesota’s judiciary and robs voters of a chance to select the right candidate, many experts say that the changing electoral landscape could invite corruption in the state’s judicial elections.

For the past 20 years, the Minnesota Commission on Judicial Selection has vetted district court applicants and forwarded the most qualified candidates for gubernatorial selection. By all accounts, the 49-member board has selected applicants that have made Minnesota’s judiciary the envy of the nation.

Most governors, including DFLer Mark Dayton, choose to follow the commission’s recommendations, said current chairman Lee Sheehy, who works for the McKnight Foundation. The group’s advice isn’t binding, which advocates would like to change.

Dayton also follows the commission’s guidance on appellate court appointments, which is technically not part of its official purview.

Eric Magnuson, a former chief justice of the Minnesota Supreme Court and chairman of the commission under Republican Gov. Tim Pawlenty, said the state is widely recognized for the quality of candidates that have come from the advisory group.

Judicial appointments demographic breakdown

2012

Gender

Applied
34%-66%
Women Men
Appointed
55%-45%
Women Men

Race (%)

chart

2011

Gender

Applied
32%-68%
Women Men
Appointed
37%-63%
Women Men

Race (%)

chart

Source: Office of the Governor. 2012 demographic report [docx]. 2011 demographic report [docx].

“It has traditionally been a very diverse and qualified group that has made the recommendation,” he said, noting that the commission’s goal is to give the sitting governor such good choices that he can’t make a mistake.

“I think we’ve fared very well,” added Sheehy. “We have not seen, I think, serious erosion by big money.”

Magnuson also praised the commission for striving to recruit diverse judges. Women and minority candidates benefit from Minnesota’s quasi-merit selection process, he said.

In 2012, Dayton made 29 judicial appointments, according to the commission. Fifty-five percent of the appointments were women and 17 percent were people of color.

“I think that minority candidates fare far better in this kind of selection process than they would in open elections,” Magnuson said.

Changes sought

Advocates hope an overhaul to Minnesota’s judicial election and selection process could come as soon as 2014.

A band of more than 30 organizations, ranging from labor unions to business groups, has been working as the Coalition for Impartial Justice to enact significant changes to how judges are chosen in Minnesota, campaign director Ryan Kelly said.

Like other experts and advocates, Kelly said the coalition wants to enact policies to block big-money judicial elections before they take root in Minnesota.

“I don’t think we have to sit around and wait for the 35W Bridge to collapse,” Kelly said of a potential crisis. “Once it happens, there’s no going back.”

The coalition’s main goals involve a pretty huge overhaul of the current process. They’re based on recommendations from a commission that former Gov. Al Quie headed in 2007.

Under the new system, open elections for judicial candidates would be a thing of the past in Minnesota. All new judges would face the merit selection process, Kelly said, in order to ensure that the best applicants are considered for a post at the district, administrative or appellate levels.

If the Impartial Justice Act becomes law, the commission’s recommendations would become mandatory for a governor to follow. Right now, the advisory group’s endorsements aren’t binding and only pertain to district court and certain administrative judges.

After a judge is chosen, they would face performance reviews during their term. The review, which would rank a judge as “well-qualified” “qualified,” or “unqualified,” would be made public before a “retention” election.

In retention elections, voters would decide whether judges had adequately performed their duties. If judges received majority approval, they would stay in office. If voters decided to oust a candidate, the governor would choose a new judge, using the mandatory merit-selection process.

At least 20 states use retention elections for some judges, according to the Coalition for Impartial Justice. Two-thirds of the states choose some of their judges using the merit selection process.

Kelly acknowledges that selling the change has been tough work. Not only is the proposal a major overhaul to an entire branch of government, but it would also take a constitutional amendment to implement.

The coalition hopes to prevail this session in order to place the issue before voters during the 2014 elections.

“We’re going to be really trying to elevate this conversation and help educate the citizens of Minnesota so it’s something that’s more in their realm of thought … on a day-to-day basis,” Kelly said.

The unusual mishmash of groups has its work cut out for it. For instance, Rep. Deb Hilstrom, chairwoman of the House Judiciary Committee, said she supports judicial elections.

Any sort of overhaul will require her sign-off.

“I am not a fan of retention elections in its current form,” she said. “I think that there are things we can do in our state to make certain that we don’t have big money influencing our judicial system.”

Hilstrom also said she has concerns about making the merit selection system mandatory for the governor to follow. “Then it becomes about the committee and who is on it,” she said.

Larry Jacobs, the University of Minnesota expert, said he’s concerned that the campaign hasn’t managed to make much impact after working on the issue for years. Last session, the measure only moved through one committee in the House and another in the Senate.

“They’re keeping at it, but they’ve been at it for a while now,” he said. “I’m getting more skeptical about its chances because it’s running into some significant opposition.”

Opponents like Greg Wersal, a former state Supreme Court candidate and longtime activist, argue that merit selection and retention elections rob voters of the opportunity to adequately choose who represents them in court.

Wersal, who didn’t return multiple requests for comment, argues on his website that retention elections would make Minnesota’s judiciary unaccountable to the voters. He also criticizes the proposed changes as giving too much power to the governor to select judicial candidates.

Wersal was one of the main forces behind the court case that opened up Minnesota’s judicial elections to the “big money” interests that many activists and advocates have criticized.

He argued that the decision has affirmed judges’ rights to free speech and praised it for bringing more competition and sunshine into judicial races both in Minnesota and nationwide.

Observers from across the ideological divide, in contrast to Wersal, are pushing for the changes before it’s too late.

“No system is perfect. You’re going to have issues with some judges no matter how you pick them, but we have really, really high-quality judges in Minnesota and we should guard that,” Magnuson said.

“It’s like anything else. If you don’t take care of it, you’ll lose it.”

Effective Democracy is a year-long series of occasional reports supported by the Chicago-based Joyce Foundation, as part of a grant made to MinnPost and the Wisconsin Center for Investigative Journalism.

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Comments (6)

  1. Submitted by Jon Kingstad on 07/18/2013 - 09:02 am.

    No system is perfect

    As I understand it, the elected judiciary was one of those mid-nineteenth century reforms that was adopted by States like Minnesota, Wisconsin and many others as a means of ensuring “local control” over judges that might otherwise be open to corruption from banks and railroads, i.e. the influence of monopoly. That was in an era when the country was mostly agrarian and rural. The same concerns abide today but I see no evidence that making the judiciary unelected judiciary will do anything to remove the influence of money, politics and corruption. Look at the federal judiciary, especially the Supreme Court to see how that’s working.

    I question whether the fears of corruption and money flowing into judicial races is being overstated. I know there are examples of big money coming into a number of states to remove judges who are too liberal to suit the tastes of big money. Wouldn’t it make more sense to remove the influence of money from all elections rather than trying to immunize one branch of government.? I see no reason why all elections should not be public funded so the total amounts spent on all campaigns is limited to a budget.

    I’m suspicious of attempts to reform as suggested above. The present system serves the political establishment well with cronies being appointed to virtual lifetime positions. The merit selection system helps to weed out hacks but being qualified to judge cases does not make above influence and sympathy to those who got you there. And we’re worried about outsiders “corrupting” this system with money driven campaigns?

    • Submitted by James Hamilton on 07/18/2013 - 09:35 am.

      Good points, all.

      I would add only that the quality of our judges is directly affected by whether the governor follows the recommendations of the judicial appointments panel. He or she is not required to do so and the current and previous holders of the office have not, when it suited their purposes. A good argument can be made that Jesse Ventura made some of the best appointments, because he had no longstanding political debts to pay. Governor Dayton, on the other hand, is the true heir of his mentor, Rudy Perpich, when it comes to appointments of all types.

  2. Submitted by Kevin Burke on 07/18/2013 - 03:45 pm.

    A judiciary as good as its promise

    Former Congresswoman Barbara Jordan once said, “what the people want is an America as good as its promise. For courts that means a promise to the people to be fair efficient and effective. For decades this state has had a lot of very good decent people appointed to the bench. Governors take the responsibility seriously. Not to be trite about it but no system can insure there are not going to be a few clunkers. The Vikings spend millions of dollars preparing for the draft and occasionally draft a Demetrious Underwood (a number one choice who lasted one day). The truth is there is always the risk that a Governor no matter what the selection system is will make a similar mistake. We can reduce the risk and maybe even help the clunker appointment become an effective judge through very good judicial training. We can improve judicial performance by making sure that judges get regular feedback about their performance. We can insure that the people of Minnesota have confidence in their courts if we have understandable performance measures. For example, Alaska recently adopted a pledge to listen. Good judges listen. Great judges listen, measure to make sure they are listening, give understandable explanations and measure that too. No one really relishes high priced divisive judicial campaigns. But how to prevent them is not clear. The retention election in Iowa that led to the defeat of three Supreme Court Justices is compelling proof that retention elections have the potential for just as much havoc as could but has not yet occurred in Minnesota. So perhaps the most effective strategy is a commitment by the judges of to be in the words of Barbara Jordan as good as our promise.

  3. Submitted by Don Mashak on 07/18/2013 - 11:05 pm.

    What a bunch of propaganda crap!

    1st) If Minnesota’s Judiciary is highly regarded, it is all based on propaganda.
    2nd) The MN Legislature unconstitutionally transfered its constitutional mandate to oversee and discipline the Judiciary to the Minnesota Judiciary.
    3rd) since 2005 hundreds of Minnesotan’s have asked and been denied by the MN House and Senate Judiciary Committees a hearing to give evidence and testimony of corruption in the Minnesota Judiciary. This would be known as the Natural Law and 1st Amendment Right to Petition the Government for redress of grievances without fear of reprisal or punishment.
    4th, The MN Government and Judiciary has went on to unlawfully and unconstitutionally punish the perceived leaders of said movement with unjust court rulings, denial of services, blacklisting etc.
    5th, YOU DO NOT GET TO DENY WE THE PEOPLE THE RIGHT TO PETITION FOR REDRESS OF GRIEVANCES AND DENY 100s OF PEOPLE OF THE STATE OF MINNESOTA THE OPPORTUNITY TO TESTIFY AND GIVE EVIDENCE OF SYSTEMIC CORRUPTION IN THE STATE OF MINNESOTA AND THEN DECLARE THAT YOU HAVE ONE OF THE MOST RESPECTED JUDICIARIES IN THE NATION. (unless we have suddenly adopted the goverance doctrine of the form Soviet Union or Red China)
    The whole premise that we must take away the people of Minnesota’s right to vote for judges in full, free and fair elections is premised on the falsehood that Minnesota Courts are not corrupt. In fact, justice in Minnesota is Systemically corrupt. The Board of Judicial Standards will admit that it can really only deal with matters of drunkeness, tardiness and body odor, etc. MN Lawyers must be more loyal to MN Judges than their clients, because the MN Legislature gave oversight and discipline of lawyers to the Minnesota Judiciary. MN Judges take bribes (which they call gifts in their cannon of ethics – As Shakespeare said: a Rose by anyother name would still smell as sweet) With a wink and a glance in court, or at the clubhouse or on the back nine of the golf course, MN judges tell lawyers the outcome they desire. Lawyer’s have little choice but to comply or they will never win a case again, be blacklisted or face the judiciary’s rath in disciplinary proceedings that might come up. Once the lawyers for both sides know the outcome they want, they only allow on the official record the facts and evidence that will allow the judge to reach the decision he advised them up. (It does not matter how many times you tell your lawyer, tell your friends and family, have it printed in the paper or post it on the internet, any fact or evidence not on the official court record is not (supposed to be) consider by the Court in reaching its decisions. If you want two indisputable instances of this (one involving the coverup of a death threat to prevent my testimony, et. al and another involving a court reporter and judge saying 25+ pages of documents were lost) I would be happy to provide that irrefutable evidence (and other evidence of judicial corruption) before a two day hearing before the Minnesota House and Senate during which any of the people of the State of Minnesota would be allowed to give evidence and testimony of corruption in the Minnesota Judiciary. Don Mashak – The Cynical Patriot. http://donmashakjudicialreformaccountability.blogspot.com/

  4. Submitted by Peter Mikkalson on 07/29/2013 - 02:58 pm.

    Hey Chicken Little-Check Your Head…

    Judicial Retention Referendum continues to confound as a solution in search of a problem. This issue seems to be dredged up by proponents of various stripes whose only common interest seems to be in ensuring no activist judge rocks the boat-either to the right or the left. You should read that to mean that they don’t want ‘independent thinkers’ mucking up their political deals. Know that there’s as much damage to the constitution from liberal judges as well as conservative ones. All good judges base their decisions on adherence to the rule of law. Voters have respected that and have demonstrated their ability to make responsible choices since inception. Judicial referendum is an attempt by the power cognoscenti to entrench themselves by removing potential threats to their schemes by removing learned, independent oversight. If you’ve witnessed the deals cut between executive and legislative leaders every legislative session, you’ll know exactly what what to fear. How much easier would it be to ‘sell’ Minnesotans on your various schemes if constitutional oversight were conveniently addressed before hand. As another aside to Chicken Little- are you really afraid of multi-nationals pouring ‘millions of dollars’ into an open judicial position in Steele County? Ridiculous scenarios such as those make dupes of us all.

  5. Submitted by Gregory Wersal on 08/22/2013 - 11:01 pm.

    Correcting the Record

    Mr.Nord states, “Wersal, who didn’t return multiple requests for comment . . . ”

    I am unaware that Mr. Nord made any attempt to contact me, let alone a request for a comment. I have not changed my e-mail address, cell phone #, or mailing address for many years. As an attorney licensed by the State of Minnesota, my contact information is available to anyone with web access who searches the Attorney Registration database of the Minnesota Supreme Court.

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