Debate over judicial elections gets rowdy at Humphrey Institute

Should Minnesota stick with the current system of choosing judges by competitive elections and maybe even make judicial elections more similar to elections for other offices by allowing judicial candidates to run as partisans?

Or should the state switch to a system in which judges are recommended by a panel of experts, appointed by governors to vacancies on the bench, and face the voters only in retention elections in which the incumbents do not have opponents? Under this plan, which has been proposed by a commission but could be adopted only by a state constitutional amendment, the voters would decide whether to retain the judge for another term or remove him or her from the bench.

That was the topic of a lively panel at the Humphrey Institute in which the panelists came about as close to calling each other names as you ever hear at a Humphrey panel, and the audience got as close to rowdy as I’ve ever seen at a Humphrey panel.

Eric Magnuson, former chief justice of the Minnesota Supreme Court and an advocate of the appointment/retention deal, said that if judicial candidates take positions on issues during campaigns and then raise big bucks from groups that have an interest in matters that may come before them in court, the public’s confidence in the impartiality of the justice system will be badly compromised.

Normally politicians run on platforms promising that if elected, they will advocate for positions that the voters favor, from better health care to lower taxes, Magnuson said. But a judges’ platform must simply be that he will decide cases impartially and according to the law.

Who wants to appear in front of a judge who has committed to a particular position on an issue that might arise in your case? Magnuson asked. When you go in front of a judge, you’d like to feel that the playing field is level.

Turning judicial campaigns into partisan dogfights will create the opposite situation. Judicial candidates won’t be dumb enough to make campaign promises to rule particular ways on issues that might come before them in the courtroom, Magnuson said, but they are gonna use buzz words and catch phrases and they’re gonna appear before particular groups in order to raise money. That’s what competitive elections are all about. Campaign spending in judicial elections is rising fast, Magnuson said, inevitably creating the impression that the winning candidate will be influenced by the interests of their contributors.

Do you want that element, that bad smell, injected into your choice of judges? Magnuson asked. The question won’t be whether you’re going to appear in front of a good judge or a bad judge. The question increasingly will be whose judge are you going to appear in front of?

If you lose a case in front of a judge but you think that judge had an open mind and heard you, you’re gonna have a far different opinion than if you lose a case in front of a judge and you suspect that that judge owed an allegiance to somebody who wasn’t you, Magnuson said.

Another approach

The second panelist to speak yesterday, attorney Greg Wersal, is the leading public face of the opposite approach. Wersal was the successful plaintiff in a landmark 2002 case that led the U.S. Supreme Court to decide (by a 5-4 ruling) that “announce clauses” of judicial ethics codes (which prevent judicial candidates from stating their views on how cases should be decided) violate the First Amendment rights of the candidates.

Wersal has run for the Minnesota Supreme Court three times (always opposing an incumbent justice, most recently this year, always unsuccessfully).

The appointment/retention system, Wersal said Thursday, would be nothing short of a disaster and a constitutional malpractice.

The key to better judging is not to shield judicial selection from democracy but to make the process more democratic and competitive by allowing judicial candidate to appear on the ballot with a partisan designation, Wersal said. (He is now active in a case that seeks to allow such party designations. He also believes the ballot should not indicate whether one of the judicial candidates is an incumbent. Under current Minnesota law, only judicial candidates are labeled on the ballot as to their incumbency status.)

Somehow we have to hold judges accountable, Wersal said. In his own experience as an attorney, he said, he has appeared before judges who are rude, judges who treat the litigants like dirt, who treat the attorneys like dirt and who, Wersal said, openly state that they will refuse to follow the law.

Subjecting incumbent judges to retention elections without an opponent to point out the incumbents flaws is not enough accountability for Wersal.

He also questioned why, if the voters are smart and well-informed enough to decide whether a judicial incumbent should be retained, the voters can’t be trusted to decide who would do a better job.

Under the proposed appointment/retention system, if a judge loses a retention vote, the vacancy would be filled by a new gubernatorial appointment from the recommendation of an expert panel.

That system has been in place in Iowa since 1962 and, until this year, no Supreme Court justice had ever been removed by a vote of non-retention until this year, when all of the justices on the ballot were removed, apparently because they had voted to legalize same-sex marriage and because they were targeted by an estimated $1 million budget of mostly out-of-state money contributed by opponents of same-sex marriage.

Of course, a story like that raises a different set of questions about electoral accountability for judges who, in theory, are supposed to interpret the law as they see it even if it leads to an unpopular result.

Christian perspective

A third member of yesterday’s Humphrey panel saw the Iowa incident as a good outcome that showed the benefits of the retention system. Gary Borgendale, local ministry director of KKMS (AM 980), a Christian radio station, was apparently on the panel to offer a Christian perspective. He spoke approvingly of the Iowa vote as evidence that the system works.

The fourth panelist, Sarah Walker of 180 Degress, Inc., which helps ex-offenders in their transition back to life outside prison, also endorsed the retention election concept. She said the merit selection/gubernatorial approach would increase diversity among judges, and that too much direct democracy in the judicial selection/retention process would discourage judges from making controversial decisions.

Speaking of controversy, I mentioned above the unusual atmosphere of the forum compared to the usual stolid, scholarly Humphrey events. The audience was full of lawyers and seemed to contain many supporters of the appointment/retention proposal, some of whom could not help grumbling audibly when Wersal made his pitch for more democracy and more partisanship in judicial elections, not to mention his colorful denunciations of black-robed jerks he has known.

But Wersal also had some impassioned supporters in the crowd, one of whom was so upset by something Magnuson said that he tried to interrupt (rather than abide by the usual written questions rule of these affairs) and another who, when he heard something he disliked from the retention backers, would simply shout What!?

I’ll give Magnuson the last word to make sure he gets a chance to answer Wersal’s question about why the public can be trusted to remove the bad judges but not to choose their replacements. The Iowa case demonstrates that partisan groups can still oust a judge in a retention election, Magnuson said. But you don’t get an opposing candidate with a stated view put into that chair.

If you want more details on the Citizens Commission for the Preservation of an Impartial Judiciary (also known as the Quie Commission for its chair, former Gov. Al Quie, and the plan they have they have proposed, their full report is here (its a pdf).

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Comments (14)

  1. Submitted by Greg Kapphahn on 11/19/2010 - 10:44 am.

    In a system such as ours, at the state and national levels, there is only one thing that keeps us from randomly flying off in whatever direction the hot air-filled demagogues are seeking to drive it (making populist statements in the foreground while doing everything they can to rip off their own devotees in the background) and that is the fact that our judicial system does NOT answer to rapid changes in public opinion.

    Our judicial system is NOT meant to be “Democratic.” It is not meant to answer directly to “the people.” Our judicial system answer to the laws of the land and, ultimately to the constitutions of our state and nation.

    In seeking to create a judicial process that answers to the public rather than to our constitution(s), Mr. Wersel and his right wing cronies are really seeking to take away the last protections the public has against those who are seeking to take their right to make moral/religious judgments (what you believe doesn’t matter – you must live according to what WE believe).

    They are also seeking to take away the public’s rights to the ownership of property and just compensation for their labors (protecting any and every way a person might devise to attain greater wealth, for instance, while removing any protections the average person might enjoy for safe working environments and fair compensation and the age-old protections for the very property that would be stolen from them by other citizens in the pursuit of their own personal wealth).

    It cannot and should not be allowed. Switching to the appointment/retention system is the ONLY way we now have to stem the tide of allowing demagogues (from either side) to dictate who our judges will be and being forced to live our lives according their ideas and ideals rather than our own and those of our founders.

  2. Submitted by Sheila Ehrich on 11/19/2010 - 10:49 am.

    In my opinion Magnuson’s last word is really the crux of this whole argument. If judges get voted out by people who disagree with their politics rather than the legality of their rulings or ther comportment, they shouldn’t be replaced by judges with politics of a different stripe. What a judge’s politics are should have absolutely nothing to do with their legal rulings.

    Can you imagine the uproar there would have been if all the judges involved in the Franken/Coleman recount had voted on the various decisions based on who appointed them (their supposed “politics”)? I’m sure the GOP might have been a little happier, but would the good people of this state have any faith left in the fairness of our courts? Particularly at the highest levels?

    Dakota County this year had a race between an incumbent who had been reprimanded both by the state’s judicial system and the Bar Association, and an opponent who was running because he thought we should have honest judges. The opponent was the clear winner, and, as far as I can tell, he won because of the honesty factor. If the two had been running on political platforms would honesty have won out?

  3. Submitted by Beryl John-Knudson on 11/19/2010 - 10:54 am.

    I suppose we can’t separate law from its attendant loopholes, and/or purge personal bias from the individual court appointee or elected judge; either way. But separating church from state in court decisions seems like something that could be achieved or at least, lawfully pursued?

    As to the nature of the session at the Humphrey…would you rather be led to slaughter by “Minnesota Nice”, a gathering of soft bleating sheep…or bitten to death by a bunch of rabid dogs?

    So much for public discussion…and each to his own choosing?

  4. Submitted by Karen Cole on 11/19/2010 - 12:26 pm.

    I was present at the forum last night. I didn’t hear any of the panelists call each other names. Or even come close. There were some very disrespectful members of the audience,though,who did not want to hear any opposing view, apparently.

    The article summarizes the points made well.

    A couple additional comments:

    Mr. Wersal was asked if he had any facts or reports to support his contention that judges are rude, have transcripts changed, make political decisions and hate men. He could not point to any evidence.

    And, Mr. Wersal was also asked if he is concerned about money coming into the judicial elections, as in other states. He said that we should have more money, not less, in these elections. He said, I believe, that given the amounts spent on the Franken/Coleman race, $3 million spent on a judicial race here would not be too much. (The most spent here for a statewide race has been much less — around $300,000.) Many of us disagree that we need more money in judicial elections. Where would the money come from? What would donors expect in return? And what would the public perception be?

    No system is perfect, but he merit selection/retention system in other states has generally kept money and politics out of judicial elections.

  5. Submitted by Ginny Martin on 11/19/2010 - 12:53 pm.

    Now that we’ve seen the results of Minnesota’s recent election with millions of partisan dollars trying to sway voters one way or another, the case for appointment/retention is stronger. We’ve already seen enough of this at the US supreme court level.
    I vote for appointment/retention but trying to take some of the partisanship out by convening an independent panel (yes, it can be done) to make assessments and judgments. Perhaps this panel can then recommend 2-3 candidates for each position, but leave the final decision up to–the governor with the legislature? Something like that. But someone on the list of good candidates would have to be named. No one not on the list could be anointed.
    Something like that. But some sort of neutral, nonpartisan group of professionals, lawyers, should be consulted in a very serious way.

  6. Submitted by Ray Schoch on 11/19/2010 - 01:17 pm.

    Judges should be kept – by law, by constitution, but whatever legal means there is – as far from regular electoral politics as it’s possible to keep them. That’s what the “founders” had in mind with the U.S. Constitution, and while I’ve often disagreed with SCOTUS decisions, at least I didn’t have to worry about how much money which lobbyists contributed to their reelection campaign.

    Judicial decisions should be based on statute and constitutional law, not on political views and campaign contributions. Electing judges is stupid in the short term, disastrous for the rule of law in the long term.

  7. Submitted by Richard Schulze on 11/19/2010 - 01:17 pm.

    I can’t think of a worse principle. Judges should not be held accountable to the people; they must be accountable only to the law and the Constitution. The People have their voice through state legislatures and Congress. To make judges oracles of public opinion corrodes the predictability of the courts. Why should the law or Constitution mean different things in different counties?

    Legal decisions will necessarily be unpopular. Stare decisis means decisions aren’t issued on a case-by-case basis in light of the moral character of the people before the judge, but in light of impersonal principles applicable to all people. And there’s always loser who will feel the sting of loss.

    Instead of trying to cram more democracy into the judiciary, we should be cramming more democracy into the legislature. For every decision can be undermined by a legislature willing to rewrite the law to reflect the will of the people.

    Former Chief Justice Magnuson is exactly right. A justice should work to apply the constitution, not please a certain constituency.

  8. Submitted by Thomas Swift on 11/19/2010 - 02:44 pm.

    Magnuson’s argument is continually undermined by the 9th Court of Appeals.

    People have the right to know the men and women they choose to apply and interpret our laws as much as they do those that create them.

  9. Submitted by Ann Spencer on 11/19/2010 - 03:46 pm.

    Perhaps if we had more civics education as advocated by former Justice Sandra Day O’Connor, we wouldn’t have so many people under the misimpression that judges need to be “accountable.”

    What that really means is that judges should bend their decisions to majority opinion rather than the Constitution and laws and, if they don’t, the public should summarily replace them with judges who are more compliant.

    As Mr. Schulze pointed out above, the legislative and executive branches of government are popularly elected and they are accountable to the will of the majority (or at least, to the will of the majority of voters).

    The judiciary’s function is to ensure that the will of the majority does not become the tyranny of the majority and that the rights of all, even (or especially) unpopular minorities, are safeguarded according to constitutional principles. It’s a system that has served the United States well for over two hundred years. An independent judiciary is one of the great bulwarks against abuse of the few by the many. As a lawyer, I treasure that heritage and believe it is one of this country’s strengths.

    People like Mr. Wersal should be careful what they wish for. Depending on how you slice it, we are all minorities on one dimension or another, and today’s majority may be tomorrow’s minority.

  10. Submitted by Bernice Vetsch on 11/19/2010 - 05:14 pm.

    Mr. Wersal and two others of his stripe have now tried at least twice to unseat judges on the Minnesota Supreme and Appeals courts. They have yet to win, but seemed to get quite a few votes this time.

    All are endorsed by Justice in Minnesota, a group that seeks to get Wersal’s ideas enacted into Minnesota law. All are also endorsed by the Republican Party, and in addition, one by the Republican Women and one by the Tea Party.

    Wersal is as described in the article. Griffith and Tinkelstad are, in addition, religious fundamentalists who want to bring God into their courtrooms. Remember their names for next time.

    Mr. Magnuson, plus Alan Page and most likely every current statewide judge, was chosen by a governor from a list of three promising candidates. They have proven themselves faithful interpreters of the Constitution and enacted laws (if they weren’t, the people would un-elect them) — proving that appointment and retention is the far better course.

  11. Submitted by Stan Hooper on 11/19/2010 - 06:28 pm.

    I was one of the constituents who was “lucky” enough to vote for one of 24 judicial candidates, because there was no incumbent to consider for re-election. A local newspaper printed the position statements provided by each of the 24 candidates. Every one of 21 candidates said, in virtually identical phrasing, that they would be fair and impartial and they didn’t say much else that was meaningful. The other three said they would be fair and impartial in different ways (I applaud their creativity) and one of the three stated things about managing the office operations, impressing me that the candidate wanted more to be a manager than a judge.
    With so many candidates saying virtually the same thing, and with only one well-known name (at least among members of one party), I hadn’t the foggiest idea who the best candidate was, there was not even one that professed Christianity (what a fantastic criteria for a judge: effectively and discriminatingly keeps the others out). That’s absolutely ludicrous. Every time we have no incumbent we’ll get a slew of candidates because there’s no primary structure for judicial positions. I’m all for the Citizen Commision’s methodology. Let’s have a referendum for the constitutional amendment.

  12. Submitted by Jon Kingstad on 11/20/2010 - 12:50 am.

    As a lawyer with 35 years of experience, and plenty of experience in appearing before a lot of judges, I can only paraphrase Winston Churchill about democracy: that it is a terrible system, except all the others are much worse. Changing the way judges are elected is like changing the arrangement of deck chairs on a sinking ship. The problems with the system are far deeper than whether judges are elected or not. We don’t have a “system of justice”; we have a “system of judicial administration” peopled and staffed by ordinary and flawed human beings, many of whom are doing the best they can but overwhelmed by the tasks they have been given or sought.

  13. Submitted by Don Mashak on 11/20/2010 - 03:59 am.

    Propaganda does not deserve respect.

    A Judicial System that ignores the Citizens 1st Amendment Right to Petition the Court for a Redress of Grievances does not deserve respect.

    For 5 Legislative Sessions hundreds of Minnesotans Petitioned the Minnesota house and Senate Judiciary Committees to give evidence in the Minnesota Judiciary and were turned away.

    When you deprive WE THE PEOPLE of our constitution Right to Petition the Government with our Grievances, don’t expect everyone to just sit and take it when you announce there is no Corruption in Minnesota when you refused to hear the testimony of 100’s of people…

    Now, it was not i that vocally protested… No I was courteous and quietly handed my question in writing twice.
    The Question: Why did the Minnesota House and Senate Judiciary Committee for five years unconstitutionally refuse to allow WE THE PEOPLE to give evidence of Judicial Corruption…. I was Minnesota nice, and what did that get me… My question, fully on point, was never asked.


    Pardon WE THE PEOPLE for being rude and asserting ourselves when the Government tries to perpetrate a fraud upon us with the sole purpose of further consolidating their tyrannical power.

    Please read my article, which was sent and read by the moderator before the event….. “Nov 18, 2010 Event: Panel Discussion: The State of Judicial Elections in America”

    Time for you to choose to stand with WE THE PEOPLE or the manipulative Progressive Tyrannical Judges.

    That event was nothing more than sham propaganda. Mr. Wersal’s invitation was a last minute after thought. There was only pro “Take away the Citizen’s right to vote in contested elections” literature at the front table.

    Here is the an example of Corruption you Progressive Tyrants like to deny…

    Please also check out both my comments at the bottom of this article “I’m Running for Judge, and I Approve this Message”

    Please point out where I am wrong in labeling this entire event a propaganda piece.

    Those were my thoughts.

    Don Mashak
    The Cynical Patriot

  14. Submitted by William Pappas on 11/20/2010 - 06:43 am.

    Stan, there were plenty of lists on the 24 judicial candidates that rated them based on their known political views, not just worthless statements made for the Strib. It’s just a matter of doing a little homework before you get to the voting booth. Greg Kaphahn states it about as clearly as it gets. The judicial principals at stake in this argument became much more magnified in the wake of Citizen’s United. The Iowa experience emphasizes it as well. Outside money from groups attempting to politicize the judicial system (or corporatize it) will siimply politically corrupt judges if they are required to engage in the traditional electoral process. Far from making this more democratic, the influx of money and who gets it will dominate the election of judges. Appointment is the best way to avoid comprimised elected judges. It is no secret that conservatives are most interested in seeing judges that use their own political views in creating new law, a fact that makes a lie of their stated positioin of strict constructionism. Even now Sumpreme Court Justices Alito and Thomas are making new rules of conduct on how far justices can take their own political positions into the public arena and still avoid censorship and frequent recusal. Nothing more than the integrity of our legal system is at risk from this blatantly right wing attack on the continuing impartiality of our judges.

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