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Magnuson’s resignation prompts this question: Should voters pick more judges?

The timing of Supreme Court Chief Justice Eric Magnuson’s resignation is fanning the fires of a long-standing debate over whether more judges and justices should be elected by the voters.

Chief Justice Eric Magnuson examines a ballot as a member of the State Canvassing Board during the Franken-Coleman recount.
MinnPost photo by Bill Kelley
Chief Justice Eric Magnuson examines a ballot as a member of the State Canvassing Board during the Franken-Coleman recount.

The ink was barely dry on Supreme Court Chief Justice Eric Magnuson’s letter of resignation earlier this month when speculation began regarding his successor. When choosing a replacement for his former law partner, would Gov. Tim Pawlenty stick to his pattern of appointing friends and allies?

By contrast, if Pawlenty has taken notice that Ramsey County District Court Judge Mike Monahan is leaving the bench at the end of the year, it’s probably only because the trial court judge is defying well-worn custom in Minnesota: Monahan is simply letting his term expire, which means voters will choose his successor.

Never mind the glaring difference in their public profiles, both judges are acting entirely within the letter of Minnesota law. Whether they’re hewing to its spirit, however, may prove to be one of the year’s thorniest electoral controversies.

Since its adoption in 1857, Minnesota’s constitution has been quite clear on the matter: Judges are to be elected by the people to six-year terms. So as to keep the wheels of justice spinning, when a judge departs before the end of a term, the governor has a duty to appoint an interim successor. If the new appointee wants to keep the job, he or she will have to run in the next election. Rarely do they lose.

In recent Minnesota history, more than 90 percent of new judges have been appointed. Virtually all make sure that in turn, the governor will appoint their successor. Sometimes they are motivated by political loyalty, but often they are acting from the common fear that elected judges may harbor partisan agendas.

The loosening of campaign restrictions on candidates for judicial office in recent years has only fanned fires on both sides of the debate. Election proponents would like Magnuson’s seat to be filled by voters, while many in the legal community, scared of the influence special interest spending could have in a low-level race like the one to replace Monahan, would instead like Minnesotans to adopt a system where the public’s role is limited to voting whether to retain appointees.

Judge Mike Monahan
Judge Mike Monahan

In those cases, the only question for voters is whether a judge should keep their job. If they vote someone out, the governor then fills the vacancy. In some states, this is done with the help of a bipartisan or neutral panel.

For his part, Monahan doesn’t like either approach. Instead, he would like a broader appointment system coupled with better mechanism for removing bad apples.

Delayed appointments
Because state law requires judges to retire at age 70, running for reelection didn’t make sense, Monahan said in an interview. Because he has been delaying judicial appointments as a way to cut costs, Pawlenty has yet to replace Michael Fetsch, who retired from Ramsey County last October, and Monahan was concerned that his seat on the bench might sit vacant for an indeterminate time.

“It’s taken so damn long for the governor to appoint someone to fill the seat here that’s already vacant,” he said. “What has it been, six months that the seat’s been open? And here are the rest of us doing the work.”

Monahan made his decision public, he said, “to give people half a chance” to meet the May 18-June 1 window to file for the race. He might have chosen differently, he said, if he was a judge at the appellate level, where his job would be making rulings of law, versus the trial court level, where judges apply those rulings.

“There is a big difference between appeals courts — and especially the Supreme Court — and those of us who are just plowing the fields down here,” Monahan said. “I can understand why Magnuson did what he did.”

This fall would have been the first reelection contest for Magnuson, who was appointed by Pawlenty in 2008. Since then, he has presided over several politically charged matters, including the Franken-Coleman election contest and a suit over Pawlenty’s budget unallotments last summer. He has also spearheaded a statewide campaign to draw attention to the effects the governor’s budget has had on the state court system.

Nonetheless, several people who know the chief justice say they take at face value Magnuson’s statement that he’s stepping down for personal reasons.

Associate justices Christopher Dietzen, Helen Meyer, Alan Page will still have to run for re-election, but Magnuson’s June 30 resignation date will take his race off this year’s ballot altogether.

Elections are rare
Over the last 15 years, Twin Cities attorneys Greg Wersal and Jill Clark have both garnered numerous headlines with their attempts to change Minnesota’s judicial election laws. Last week, the two asked the state Supreme Court to allow them to run for Magnuson’s seat next fall.

The fact that Minnesota judges are routinely appointed skirts the intention of the state constitution’s framers, they contend. “Only one justice currently on the Minnesota Supreme Court was elected, no Court of Appeals judges have been elected — ever, and few trial court judges were elected,” they argue. “The governors have managed, over time, to make elections of judges quite rare. This has been much-discussed in Minnesota in recent years.”

It’s much-discussed in large part because of a case stemming from Wersal’s efforts to run for state Supreme Court in 1996 and 1998. A Republican dark horse once better known for his campaign stunts, Wersal objected to rules barring Minnesota judicial candidates from soliciting political endorsements or talking about their broad views on issues like crime or abortion that might come before the court.

In 2002, the U.S. Supreme Court agreed with Wersal, who two years ago announced his intention to run against then-state Chief Justice Russell Anderson. When Anderson retired instead of standing for reelection, Pawlenty appointed Magnuson. In his latest complaint, Wersal has charged that the back-to-back appointments robbed him and others of their chance to run for the seat.

Also in 2008, Clark, who also has a colorful reputation, petitioned the state’s high court to place her name on the ballot with Justice Lorie Gildea’s even though she missed the filing period. Clark also complained that the “systemic overuse” of the appointment process locked outsiders out of the running.

In dismissing Clark’s complaint, the court noted that the state constitution clearly requires the governor to fill vacancies. It did not touch her contention that the appointments were overused, legal or not.

Philosophically, Wersal and Clark probably make a good point, said David Schultz, a professor at Hamline University and an expert on Minnesota elections law. But that doesn’t mean they have a legal right to run for Magnuson’s seat.

“Is it an effort to circumvent the elections process? Probably,” he said. “On the one hand you have Wersal, who desperately wants his day to run for court and to solicit endorsements and money, and on the other you have the judiciary and the Supreme Court saying, ‘We don’t like elections.'”

Explaining unpopular decisions
Whether they’re right to be mistrustful has yet to be seen. Election proponents note that in every other kind of election where issues are freely discussed, people are trusted to vote their consciences. Moreover, they argue, it’s naïve to believe that appointments are a cleaner alternative when doled out by a politician who is free to appoint his partisan cronies.

Judges are not supposed to bend to popular opinion, opponents counter. Studies show it’s harder for them to uphold individual rights when they have to explain unpopular decisions at election time, said Bert Kritzer, a professor of law at the University of Minnesota. In Alabama, he noted by way of example, judges are allowed to overrule jurors in death penalty cases. If they are facing reelection, they are disproportionately likely to go ahead and condemn a defendant a jury didn’t think deserved execution.

At the same time, Kritzer cautioned, it’s also not clear that special-interest money will have a sweeping effect on Minnesota’s nonpartisan judicial races. Even though the state has seen an uptick in outside candidates, “at this time, there is little or no indication that Minnesota has shifted at all in partisan voting patterns,” he said.

Most likely, this is because compared to other states Minnesota’s appellate courts haven’t been faced with many cases with ideological ramifications, such as tort reform.

Magnuson, who was out of town this week and has generally declined interviews about his own decision, is convinced that politics will corrupt the judiciary. He and several former justices and policymakers want the state Legislature to place a constitutional amendment on the ballot this year that would replace open elections with balloting to decide whether appointees should retain their seats.

Monahan, too, fears an increase in politics in judicial elections. And he’s more than a little apprehensive about who will take his place next January.

“I’m very concerned about that,” he said. “I think that’s a very serious question, what happens when these things are allowed to go to election.

“We’ll see how it works,” he concluded. “This will be the little experiment.”

Beth Hawkins writes about criminal justice, schools and other topics.