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Is Minnesota on the brink of ultra-expensive, partisan judicial elections?

American Constitution Society for Law and Policy
The various methods of selection and retention of judges by state.

Judicial elections — once known as a “sleepy affair” across the nation — have started resembling highly partisan political campaigns as big money and special-interest influence have begun creeping into races in a handful of states.

And, Minnesota’s judicial system, several experts and advocates say, is in danger of falling victim to that nationwide trend.

They cite such examples as a 2011 state Supreme Court election in Wisconsin that served as a surrogate battle over the fate of Gov. Scott Walker’s anti-union legislation. Outside groups spent roughly $4.5 million in the process.

In West Virginia in 2004, a coal mining company’s CEO spent more than $3 million to help a Republican judicial candidate unseat the Democratic incumbent. The switch resulted in a favorable ruling for the coal mining company when the new judge became the key swing vote in a 2007 appeal that overturned $50 million in damages it owed.

“Judges and the justice system depend on the confidence of the public and their integrity,” said former Minnesota Supreme Court Chief Justice Eric Magnuson, adding that if people believe they can buy results, that trust crumbles.

“If that perception is out there, you’ve done tremendous damage to the justice system.”

As part of our Effective Democracy series, MinnPost recently reported on concerns about judicial elections and candidate selection.

Worrisome court decision

Many judicial observers have offered doomsday predictions in Minnesota since at least 2005. After years of legal wrangling, an appeals court — building on a previous U.S. Supreme Court decision — ultimately ruled that Minnesota couldn’t prohibit judicial candidates from seeking campaign funds and couldn’t limit candidates’ “partisan political activities.”

Activists, such as the Coalition for Impartial Justice in Minnesota, that are working for what they call an “impartial” court system say that court ruling will eventually draw huge campaign contributions into state judicial races and allow special interests to, in effect, buy court decisions.

Other states, such as Iowa, use a different model to select and retain judges that advocates in Minnesota are pushing in order to keep undue influence out of the judicial system. That method, though, hasn’t been without controversy.

The Minnesota coalition, which spans the spectrum from business groups to labor unions, has been working to reform the state’s judicial system for years. Campaign Director Ryan Kelly said that his group, although unsuccessful so far, plans to push hard for necessary changes next session.

“Once the first million-dollar court race hits in Minnesota, it’s game over,” Kelly said in a recent interview with MinnPost. “Pandora’s box has been opened.”

Wisconsin’s malfunctions

The Wisconsin Supreme Court hasn’t been the most popular — or well-functioning — group of impartial officials in recent years.

Ed Fallone, a Democrat who unsuccessfully challenged incumbent Justice Pat Roggensack last spring, based a large part of his candidacy on “dysfunctional” court activity. The elections, which are technically nonpartisan, proved to be down and dirty political affairs.

In addition to the millions of dollars that have been pouring into Wisconsin judicial races over the last few years, gridlock and charges of partisanship and misconduct have plagued the Supreme Court.

“The elections have really changed in tenor in just the last five or 10 years,” Barry Burden, a political science professor at the University of Wisconsin-Madison, told MinnPost.

“People are also pretty unhappy with how the court is operating,” Burden added. “They’re not happy with the elections.”

After 35 outside groups representing business, labor and many other special interests spent $4.5 million to influence a 2011 state Supreme Court election between incumbent Justice David Prosser and Assistant Attorney General JoAnne Kloppenburg, a high-profile battle over Walker’s anti-collective bargaining legislation took place in the court.

Effective DemocracyThe heated debate over the legislation led to allegations that Prosser aggressively put his hands around a female justice’s neck in June 2011.

“Wisconsin is a state that traditionally is proud of the government,” Fallone told Stateline in April, speaking more generally about the court’s shortcomings as he saw them. “People in Wisconsin don’t want to see that in their government; they certainly don’t want to see that in the court.”

Two reform measures have emerged as potential fixes for the Wisconsin court’s woes.

As in Minnesota, activists have argued for “merit selection” and retention elections, where a group of qualified professionals would select a slate of candidates for the governor to appoint.

After the governor appointed a judge, the candidate would undergo retention elections, and the public would have the opportunity to vote on whether they thought the judge did a satisfactory job.

If the public lost confidence in a judge and voted out the candidate, the governor would appoint a qualified replacement from a group of choices reviewed by the selection commission.

So far, as in Minnesota, that measure hasn’t made much headway. Two-thirds of states and the District of Columbia use some form of merit selection, according to the American Judicature Society.

The State Bar of Wisconsin more recently has been pushing a proposal that would keep Supreme Court elections but limit justices to one 16-year term. That way, judges would never face voters again, Burden said, insulating them from campaign contributions and public opinion.

The Wisconsin Supreme Court currently has seven justices who serve staggered 10-year terms.

“I don’t know where that will go,” Burden said. “It’s just something that’s being talked about.”

Iowa’s system

Iowa has been using merit selection and retention elections for decades, but the method doesn’t appear to be a cure-all for controversy. Minnesota has a form of merit selection in practice but doesn’t rely on retention elections to keep or remove judges.

In 2010, Iowa voters removed three state Supreme Court justices who voted to permit same-sex marriage. It was the first time that the public had ousted members of the state’s highest court, and the campaign against the three judges was largely financed by national groups opposed to gay marriage, the New York Times reported.

Kelly, with Minnesota’s Coalition for Impartial Justice, called Iowa an “interesting case study” for merit selection and retention elections. He also argued that the governor appointed three equally qualified candidates to replace the judges that the voters removed.

“It was fair, balanced,” he added, although admitting: “It’s not the perfect solution.” 

Changing Minnesota’s system

The coalition is working to put in place a system like Iowa’s, but it’s unclear whether the organization will have the political strength necessary to make the change.

Kelly said it’s important to educate the public about the value of an impartial judiciary in keeping its highly regarded court system.

Hey and such other supporters as Magnuson also push back against criticisms from people like judicial challenger Greg Wersal, instrumental in the 2005 Minnesota case, who argue that judicial candidates should be able to engage in partisan political activities.

They also will have to overcome skepticism that a selection commission could become rife with corruption and not permit the best candidates to move forward.

“It’s the height of cynicism for people to say some small powerful group will take over and load the deck,” Magnuson said. “It hasn’t been the experience in Minnesota, and I don’t think the citizens would be up for it.”

Such advocates as the coalition say the warning signs of drastic change in Minnesota’s judicial system are there.

“This is the most politically volatile and back-and-forth times in Minnesota that we’ve seen in the past several decades, and all the ingredients are ripe for this to happen,” Kelly said.

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 (7)

  1. Submitted by Jon Kingstad on 08/20/2013 - 09:34 am.

    Small group loading the deck

    I have to take issue with former Chief Justice Magnuson on this comment. It certainly looks like David and Charles Koch and their friends of 0.01% wealthy elites have taken over the government of Wisconsin. Governor Scott Walker talks and acts like they have at any rate. You don’t have to have a complete takeover of the Supreme Court either as the split on the Wisconsin Supreme Court has revealed.

    A better example of this was the Wis. Supreme Court election in 2008 between Louis Butler who had been appointed and Michael Gableman. Gableman ran a race that used completely false and misleading negative ads. Butler had been targeted by the Wisconsin Association of Manufacturers, a right wing group. It’s fair to say that this group succeeded in destroying whatever integrity the Wisconsin Supreme Court had by destroying its reputation for nonpartisan decisionmaking.

    Concerns that some small powerful group might take control over a state supreme court are real. There is a terrific documentary called “Hot Coffee” which is about the McDonalds scalding coffee case but a lot of it has other instances of buying of judicial elections, one judge at a time that show the Butler/Gableman election is not an outlier.

    I wish there would be some discussion about making lower courts more open. The present setup in Minnesota where judges in eight of the ten judicial districts are elected on a district wide basis based on district lines drawn in the 1950’s is clearly aimed at protecting incumbents. It’s not as interesting of an issue but most district court elections are not contested. One reason for that being, it’s prohibitively expensive to mount a campaign that covers five or six counties where the judges are hardly known in even one.

  2. Submitted by Ray Schoch on 08/20/2013 - 11:21 am.

    Good question

    My 2¢ answer is that I hope not.

    Hope, however, is not a method, and the West Virginia case cited in the article is as good an illustration as any of the danger to the public at large of allowing partisan groups — and more importantly, partisan money — to determine election results. Looking at the map at the top of the piece, I’d much prefer that Minnesota remained among the medium-blue states. In fact, in one of the very few instances where I’d personally support the color change, I’d be OK with Minnesota becoming a “red state,” at least in that merit selection / judicial appointment context.

    Appointment by the Governor from a slate of people selected by those who actually know the law seems to me far preferable to TV and other media-driven campaigns to elect John or Judy Judge because they share “family values” that — some would have us believe — apply only to a single segment of the electorate. Lacking that, I’d also be OK with a single nonpartisan election for a single, lengthy term — the 16 years mentioned in the article would be fine with me. It could even be shortened by a couple years, just so long as it’s long enough that the judge in question would be only minimally influenced by partisan and popular pressures from an increasingly trend-and-zealot ridden society.

  3. Submitted by Kevin Burke on 08/20/2013 - 12:00 pm.

    Another Way To Look At The Problem

    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 judicial 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.

    Crazy and expensive judicial elections do undermine the legitimacy of courts. But there is more to the problem if we are to insure the legitimacy of judicial decision making. Legitimacy is trust of the judges and courts. Legitimacy is maintained in part by building a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. But trust is earned, not given. Simply put, improved performance of our courts is the key to establishing confidence and belief in the legitimacy of judicial decision making.
    A failure to succeed in enhancing the legitimacy of court decisions imperils the judiciary. 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy₁. Of course, judges have a range of philosophical views. Judges exercise discretion, so differences of opinion among judges should be expected. But 75% of the American public also thinks judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court₁. This finding illustrates how profoundly at peril the public’s belief in the legitimacy of judges’ decisions is.
    The strategy for enhancing the standing of courts with the people is simple. It is time for Minnesota courts to commit to procedural fairness. A central tenet of procedural fairness is that litigants have a right to be listened to. The opportunity to be heard is an essential component of fairness. Litigants also have a right to understand court orders and why they were decided. The commitment cannot be stating platitudes. Courts need to regularly (not just occasionally) measure their performance on litigants feeling they were heard, being respected, understanding court orders and why they were issued.

  4. Submitted by Steve Hoffman on 08/20/2013 - 01:07 pm.

    Trust

    As West Virginia shows, buying judgeships ultimately (if not immediately) leads to a lack of trust in the judiciary as a whole. Moreover, how can a judge who received huge campaign contributions from a business not recuse himself when that business comes before him? It’s just too blatant. But then, look at Clarence Thomas, voting every time in line with his wife’s PAC, regardless of the issue.

  5. Submitted by Kevin Burke on 08/20/2013 - 02:04 pm.

    A Different Way Of Looking At The Probem

    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 judicial 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.

    Crazy and expensive judicial elections do undermine the legitimacy of courts. But there is more to the problem if we are to insure the legitimacy of judicial decision making. Legitimacy is trust of the judges and courts. Legitimacy is maintained in part by building a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. But trust is earned, not given. Simply put, improved performance of our courts is the key to establishing confidence and belief in the legitimacy of judicial decision making.
    A failure to succeed in enhancing the legitimacy of court decisions imperils the judiciary. 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy₁. Of course, judges have a range of philosophical views. Judges exercise discretion, so differences of opinion among judges should be expected. But 75% of the American public also thinks judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court₁. This finding illustrates how profoundly at peril the public’s belief in the legitimacy of judges’ decisions is.
    The strategy for enhancing the standing of courts with the people is simple. It is time for Minnesota courts to commit to procedural fairness. A central tenet of procedural fairness is that litigants have a right to be listened to. The opportunity to be heard is an essential component of fairness. Litigants also have a right to understand court orders and why they were decided. The commitment cannot be stating platitudes. Courts need to regularly (not just occasionally) measure their performance on litigants feeling they were heard, being respected, understanding court orders and why they were issued.

  6. Submitted by Greg Kapphahn on 08/20/2013 - 03:16 pm.

    Forcing Your Friends and Neighbors to Follow YOUR Beliefs

    Our “conservative” friends, being unable to convince their friends, neighbors, and family members to follow their beliefs through friendly persuasion, seem more than willing to use state legislative bodies and the courts to force those same friends and neighbors to live according to “conservative” beliefs.

    They have been gradually packing the federal courts for decades (while Democrats, for their own reasons, have refused to respond in kind): nominating and easily confirming federal judges from the “conservative” side of the spectrum while making it as difficult as possible for Democrats to nominate and have confirmed moderate-to-liberal judges,…

    even when that means large numbers of Federal Courts Judge positions go unfilled.

    In one case, The Fifth District, where a particular federal court has been packed with pro-business, “conservative” judges for decades, the Republicans have tried to actually shrink the number of judges in the district rather than allow President Obama to appoint moderate-to-liberal judges to replace those who have retired. I suspect they would rather not have the quantity of egg on their faces that they’d have to daily wear were they to refuse to confirm moderate judges to such an important District which has traditionally handled appeals of some of the nation’s most complex cases involving corporate law.

    The current effort to make Minnesota’s judicial elections into a political contest is just more of the same. Of course, as should by now be abundantly clear, the people of Minnesota are a good deal wiser than our neighbors in Wisconsin. We will watch the kinds of propagandistic negative media campaigns against sitting judges with VERY jaded eyes.

    But for me, a vital question about this effort remains: If we leave our state judges in the position where they feel as if they must constantly look over their shoulders when they render judgment lest some interest group or other begin to attack them for no other reason than that they did not produce the outcome that group desired,…

    will that not limit the quality of justice for ALL of us?

    Do you want your judge to decide cases involving yourself, your business, your church, or your family member based on the evidence placed before them,…

    or on the demonstrations happening out on the lawn,…

    or the threatened media campaign against them come their next election?

    Do we REALLY want our judges to come through each election with a list of donors that he or she “owes” in response to generous campaign contributions,…

    which, inevitably, will become a “get out of jail free,” “you have zero liability,” card in at least some cases?

    Our system works VERY well as it stands. To borrow the old aphorism, “If it AIN’T broke, DON’T fix it.”

    Or, finally, to borrow another old aphorism, when it comes to “improving” government systems “beware of people with axes to grind.”

  7. Submitted by Peter Mikkalson on 08/22/2013 - 01:43 pm.

    Re: Misplaced concern…

    The only “concern” over this issue, continues to come from entrenched political power bases worried about not having their way. I’ve never donated to a political cause before, but I’d spend every dime I own defeating this initiative. I’m certain I’m not alone. If you need to continue to explain to ordinary citizens why this is a good idea, perhaps you need to ensure it really is “a good idea!” See you at the polls.

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