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Home / Minnesota Legal News / Legal News / Power shift emboldens ‘retention’ advocates
The new Democratic majority hasn’t been sworn in yet, but the forces behind changing Minnesota’s judicial elections to a retention-based system are already gathering momentum.

Power shift emboldens ‘retention’ advocates

Voters wait in line to cast their ballots on Election Day at the Veterans of Foreign Wars in Uptown in Minneapolis. With the DFL regaining control in the Legislature, supporters of retention election for judges plan to promote the issue in the 2013 session. (AP Photo / The Star Tribune: Joel Koyama)

Judicial election overhaul could be 2013 session issue

The new Democratic majority hasn’t been sworn in yet, but the forces behind changing Minnesota’s judicial elections to a retention-based system are already gathering momentum.

These supporters hope DFL legislators will be more open to the idea than their Republican colleagues.

Last week in Duluth the League of Women Voters sponsored the “Impartial Judiciary Forum.” Retired Supreme Court Justice Esther Tomljanovich and others from the Coalition for Impartial Justice spoke about why they think now is the time to switch to a retention based system.

Supporters say that a retention system keeps money and politics out of judicial races. They point to examples of recent judicial races in neighboring states where outside special interest groups swooped in and spent millions of dollars to influence the outcome.

Brian Rusche is the executive director of the Joint Religious Legislative Coalition and a member of the Coalition for Impartial Justice. He said supporters are ready to breathe some life back in to the initiative.

“We are going full bore with this and hoping to pass a bill in the 2013 legislative session to give people the maximum amount of time to learn about the issue,” he said.

About 20 states have retention elections for judges. In these contests judges don’t run for re-election against an opponent, but voters decide whether judges should keep their spots on the bench. A nonpartisan judicial evaluation commission issues a report on a judge’s competence and effectiveness. If a judge is retained, he or she stays on the bench, if not, a new judge is appointed through the merit selection process and stands for retention.  To approve the retention system the Legislature would need to pass a bill and voters would have to approve an amendment to the state’s constitution.

GOP resists changes

The idea was gaining momentum last time the DFL was in power, but when Republicans won the majority in 2010 it hit a wall. In its platform, the Republican Party spells out the support for keeping judicial elections as “written in the Minnesota Constitution and [we] oppose any proposals to eliminate or limit these elections.”

Sen. Warren Limmer, R-Maple Grove, is the outgoing chair of the Senate Judiciary Committee. Before this past legislative session he famously said that any Republican lawmaker who sponsored a retention election bill was “signing their own death warrant.”

Limmer wasn’t bluffing. Rep. Mike Beard, R-Shakopee, did sponsor a retention elections bill that was introduced late in the 2012 session. The bill stalled in committee, but the damage to Beard’s bona fides with the Republican Party was done. Bruce Mackenthun challenged Beard for the Republican endorsement. Mackenthun said he decided to run against Beard primarily because of Beard’s support for judicial retention elections.

After 12 rounds of voting, Mackenthun conceded the endorsement to Beard, but Beard never secured enough delegates to win the endorsement. [Beard beat his DFL challenger in the general election with 54 percent of the vote.]

The newly minted DFL majority is a plus for retention election supporters, but the bill does have bipartisan support, Rusche said. The coalition spent the past two years lobbying Republican lawmakers and adding new groups to its coalition. Rusche said the group has broad support of state and county bar associations, large and small law firms, the business community, religious groups and many local chambers of commerce.

“This is a fundamental issue of justice and fairness,” he said. “People are frustrated when they turn over the ballot and don’t know anything about the judicial candidates and see that many judges are running unopposed. This solution says, ‘Let’s give the public a vote on judicial races, but let’s give them a meaningful vote on every seat.’”

Current system ‘arbitrary’

Marc Berris ran for judge in Hennepin County this year and lost to Lois Conroy. He said voters admitted to him that they routinely voted for judge not on qualifications or experience but because of gender or perceived ethnicity in the candidate’s name.

“I had people say to me the name sounds like a similar background to theirs, whether it was Irish, German or Scandinavian or whatever. That’s as arbitrary as saying I saw a campaign yard sign and that’s the person I am going to vote for,” Berris said.

Sarah Walker, the president of the Coalition for Impartial Justice, said she believes retention elections achieve several goals. They maintain quality judges — something that benefits all voters, not just attorneys and litigants. They keep judicial elections from being politicized and forcing judges to seek endorsements or make public statements on hot-button social issues to earn support. The performance evaluation of each judge will be made public so voters will have information on each judge to make an informed vote.

“What matters to the average person is they have a good experience with the courts and are treated fairly,” she said. “Retention elections accomplish that and from a party perspective, the last thing that either party needs to be focused on when they are winning and losing elections by a few points here and there is spending money on judicial elections. ”

Steve Simon is an attorney at Robins, Kaplan, Miller & Ciresi in Minneapolis and also a DFL state representative from St. Louis Park. He was the chief sponsor of the retention election bill the last time the DFL held the majority in St. Paul. Sen. Ann Rest, DFL-New Hope, was the author of the companion bill.

Simon said he hasn’t talked to the Coalition for Impartial Justice since the Nov. 6 election. He said a lot needs to be sorted out in St. Paul before he decides whether he would sponsor a similar bill this year.

“Right now I am trying to collect my ideas and priorities for the upcoming session, and I am not sure, to be honest, if I would recommend a retention bill again,” he said. “There are a lot of factors that need to be considered, and we have to see where people’s expectations are.”

For one, Simon worries that people could have “constitutional amendment fatigue” after two contentious campaigns for both the voter ID and marriage amendment questions. The second factor is that this is a budget year; traditionally, the legislature has not discussed constitutional amendments while sorting out the state’s finances.

Making pitch to voters

With or without Simon’s support, the retention election bill will be introduced this session, said Rusche. He said similar voter education events like the one in Duluth last week will be held in cities across the state. Galvanizing a broad base of support for retention elections will not be easy. First, most people will never set foot in a courthouse in their lifetime. Second, the issue doesn’t translate well to a slogan like “Vote No,” nor can it be condescended to one campaign flyer.

“2014 is a lifetime from now and gives us the opportunity to tell voters this amendment is different. It is bipartisan, and this is actually something we need to change in the constitution. We just came off an election with an amazing turnout, and voters are feeling really engaged right now,” he said.

Walker acknowledges that the two amendment questions left a bad taste in the mouths of voters but said the retention elections idea is different.

“This idea is actually a good use of an amendment process and what it was intended for,” she said. “This is a good government issue that doesn’t cut across party lines.”

Walker said her coalition learned from watching Minnesotans United for All Families, the group that organized to defeat the marriage amendment.

“The strength of our coalition is in its diversity. We went to Tea Party events and union halls to talk about the need for retention elections with people and why it is good government,” she said.

The Minnesota District Judges Association said in 2009 that it could support a retention-based election system for judges with a few exceptions, but it stopped short of taking a position on the current system versus a retention system. The MDJA wants mandatory merit selection for all judges and justices; the performance evaluation commission must be separate from all branches of the government, and funding for the commission must be identified.

The MDJA also wants a mechanism that notifies judges when their retention is being challenged. Many judges are wary of a last-minute “anti-retention campaign” that pops up late in the election cycle. The “trigger” would notify a judge if a group was organizing to unseat her and give that judge time to respond and campaign for retention.

Golden Valley attorney and frequent candidate for judicial office Greg Wersal said Republican Party officials have also started meeting in preparation that the bill will be introduced this session. Wersal said the retention elections create a de facto appointment-for-life system because it is extremely rare for a judge to lose a retention election. As a result, the public has no power to remove a judge who isn’t doing the job effectively or ethically, and they are given no choice in the successor, he said.

“We have too many bad judges right now; if you grandfather them in to this retention system, we can never get rid of them,” he said. “The people who are pushing for this will like the retention elections as long as Gov. Dayton is making the appointments and not a strong, conservative governor. I don’t think they realize that this could come back to bite them.”

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