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At a recent, sparsely-attended hearing of the House Public Safety Committee, the state’s top court administrator presented a startling fact: Minnesota will lose a third of its judges in the next five years.
That’s when many judges will hit retirement age, State Court Administrator Jeff Shorba noted, and all of those positions will need to be filled.
But that task has become increasingly difficult lately, largely because of judicial salaries in Minnesota, which have essentially remained flat for nearly 15 years, he said. “The judicial branch works very hard to attract and retain the best and brightest for our courts,” Shorba said. “However, we are not able to gain the interest of highly competent lawyers if we’re not able to keep salaries competitive.”
To try and get ahead of the problem, the courts are currently asking for a 3.5 percent raise for all judges in 2018 and 2019, as well as a similar increase in compensation for court staff and extra expenses for retirement costs and health care increases. That would cost the state about $42 million over the next two years, with $8 million of that total specifically going toward judge salaries.
The courts know it’s a tricky issue terms of public perception: Judges in Minnesota are not starving. District court judges make just shy of $150,000 per year (judges on the court of appeals and supreme court make more). But they argue that the judicial branch is often the only check on the state’s legislative and executive branch, and many judges in Greater Minnesota handle nearly every case in their entire district, from divorce proceedings to sexual assault cases. “They’re making almost life or death decisions here,” said Republican Rep. Tony Cornish, chair of the House Public Safety and Security Policy and Finance Committee. “If the pay isn’t fair, then you’re going to get lesser quality candidates.”
A ‘pay cut’ for lawyers
Kevin Mark understands the problem all too well. In 2000, he was in private practice in Red Wing when several people said he should consider making the transition to the bench. There was an open judgeship in the area, so he researched the requirements of the job and talked to people who had served. As a father of three kids, he also looked closely at the financial package offered for a district judge. He decided to pass.
Then, in 2002, the Minnesota Legislature approved a 6.5 percent increase in judge’s salaries. There was another opening for district judge in Goodhue County that summer, and this time, Mark applied. He was selected by then-Gov. Jesse Ventura out of a pool of 32 candidates and has been on the bench ever since.
But after the 2002 raise, salaries failed to keep up with inflation, Mark said. Compounding the problem was the recession, which led the judiciary to impose a five-year salary freeze across the entire system to avoid layoffs, though pay raises enacted by the Legislature in 2014 brought judges back to their 2002 salary levels when adjusted for inflation.
“During that time, when there were wage freezes, it didn’t impact the work effort of the judges or of their staff or all the people in the public sector,” Mark said. “They worked just as hard. As a matter of fact, I think you’ll find when the economy goes south, the legal work tends to pick up.”
The stagnant pay has already led to some problems in recruitment, particularly in Greater Minnesota, Shorba said. Usually, between 20 to 30 people apply for a judgeship.
But for several recent judicial appointments in Fergus Falls and Aitkin, only seven people applied for the job. A recent opening in Waseca only attracted nine candidates.
The biggest competition for recruiting judges and judicial staff are private law firms, but there’s also been an uptick in skilled attorneys going to work for large governmental agencies instead. In Greater Minnesota, applicants for a judgeship are most often public sector attorneys, such as prosecutors and public defenders.
“That’s not to say public sector attorneys don’t make good judges, but we would like to see a balanced rank within our judiciary,” said Shorba. “We lose our to ability to gain the interest of highly competent lawyers if we’re not able to keep salaries competitive.”
Lee Sheehy is chair of the Commission on Judicial Selection under Gov. Mark Dayton, which must solicit for judicial candidates, evaluate applications and recommend nominees to the governor. Sheehy said the Commission on Judicial Selection has worked with other groups, like the state’s bar association, to try and broaden the field of candidates, particularly in getting a diverse group of applicants that reflect the state as a whole, but it’s still been challenging.
“Over the last six years now, I would say that applications in the metropolitan area have continued to be substantial in number, but in Greater Minnesota it’s always been mixed in terms of numbers for the vacancies,” he said.
Lawmakers open to a raise
Minnesota’s judicial branch is vast. There are nearly 300 judges in the state’s 10 judicial districts along with 19 on the Court of Appeals and seven Supreme Court justices. All of those judges appointed by the governor and then must run for re-election to six year terms. They must be at least 21 years old and have a law degree to serve. Minnesota also has a special tax and worker’s compensation court.
The courts have looked into where Minnesota judicial salaries rank in the nation and how they size up compared to larger private law firms. A district court judge, like Mark, made $149,605 in 2016. That puts Minnesota in the middle of the pack nationally when cost of living is factored in.
By comparison, an attorney at one of the bigger Twin Cities law firms with between four to nine years of experience makes over $200,000, and more experienced attorneys can make significantly more.
Dayton supported the judicial pay increases in his 2018-2019 budget bill, but legislators haven’t set their budget targets yet. Even with a $1.4 billion budget surplus this year, there’s still plenty of other agencies and outside groups competing for dollars.
While his caucus hasn’t drafted a court budget yet, Cornish supports the idea of a modest pay raise for judges this biennium. He said it’s common in other state agencies and even the business world to compare salaries to other states and competing industries. “If we fall behind as much as we have in the past, then we have to make up in one biennium, and give them a raise that looks out of the norm.”
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The rock and the hard place
Public sector salaries are always a tough sell, unfortunately. Taxpayers generally want the highest-quality candidates and officeholders for the lowest possible cost—a combination that doesn’t usually fly very well, though, as a taxpayer, I’m subject to that same mind set myself from time to time. And, in a society that generally devalues the intellectual, taxpayers are often reluctant to attach much value to work that’s intellectually demanding, but not physically so.
While the numbers themselves are higher by far than anything I encountered as a public school teacher, the problem of attracting candidates to a challenging field where the income likely won’t come close to matching what might be earned in the private sector is similar all over the country. Anyone who’s a public sector employee is familiar with his or her income being outpaced by the cost of living. “Doing more with less” is a nice slogan, but there are practical limits to the efficiencies that can be squeezed out of some governmental activities.