Undaunted by incoming GOP majority
Despite a potentially uphill battle in the upcoming legislative session, proponents of judicial election reform are moving full speed ahead with their message.
Advocates of change favor a move from the current system of electing judges to a retention system by which the governor would fill open judicial seats and voters would decide whether to retain the judge. Also, an independent judicial-performance commission would be created to publicly evaluate judges’ performance.
Last year, a proposed ballot question asking voters to make the change got further than it ever has before in the Legislature, only to be derailed shortly before the end of the session. Election observers say the chances of getting the measure through the Legislature this year are slim at best.
“If it’s not dead, it practically is,” said Hamline University School of Law Adjunct Professor David Schultz, a recognized expert in government, law and politics. “I’m not even sure I want to use the analogy of life support because I actually don’t think it’s going to go anywhere at this point.”
That’s due in part at least to the upcoming Republican takeover of the Minnesota Legislature. One aspect of the Republican Party’s standing platform for 2010 is its opposition to any change to the current system of electing judges in Minnesota.
Schultz said that proponents of retention elections have had trouble getting the proposal through the Legislature even when it’s controlled by Democrats, primarily because there’s no consensus even among the judges as to what system is best.
“Add to that the fact that the Republicans have taken over and I suspect there is almost no chance of any serious proposals,” he said.
Some court watchers said that while the measure initially had bipartisan support, support among Republicans has been steadily diminishing.
Hennepin County District Court Judge Kevin Burke noted that the Republican legislators who initially sponsored the bills have since pulled off.
“My sense is that it’s getting more of a partisan split,” he said, adding that the Republican Party has also started endorsing judicial candidates.
The Coalition for Impartial Justice has been a vigorous advocate for replacing the election of judges with a retention system. Its president, Minneapolis attorney Brent Routman, said the shift to Republican control of the Legislature has not discouraged the coalition, and he anticipates the introduction of legislation again this session.
“The critical need to ensure the continued impartiality of courts in Minnesota through a system of retention elections is truly a bipartisan effort and is strongly supported in the business and corporate community,” he said.
Routman expects that despite the Republican Party’s plank against changing the current system, the backing of the business community may help sway legislators to seriously consider the retention election proposal.
“In fact, since the recent election, corporate support has steadily increased,” he said. “We are confident that members of the Legislature, regardless of party affiliation, will respond positively to the recommendations of the corporate business community.”
The system proposed for Minnesota by the Coalition for Impartial Justice made headlines in other states earlier this month.
In Iowa, a retention election state, all three Supreme Court justices on the ballot were ousted from their seats, apparently because of their ruling that a law banning gay marriage violated the state’s constitution. The effort to remove the judges was fueled by an estimated $1 million from mostly-out-of state organizations that oppose same-sex marriage. And in Nevada, 58 percent of voters rejected a switch to a retention election system similar to what is being proposed for Minnesota. (See “Commentary” on page 5)
Opponents of the retention election system say that what happened in those states is further evidence that such a system is not the way to go.
“[Proponents] have the highest motivation, but I don’t think it’s the right thing to do now,” said Burke. Pointing specifically to what happened in Iowa, the judged added that people “have to at least acknowledge that the idea that this would be less costly and would insulate judges from partisan political attacks just isn’t true.”
Burke said he’s skeptical the proposal will make it through the Legislature and onto the ballot this year, but if it does it will be “a highly divisive and polarizing fight” to get people to vote for it. The judge fears a situation in which the state ends up with “less support for the judiciary and a lot of hard feelings.”
The Minnesota State Bar Association is a member of the Coalition for Impartial Justice. Bryan Lake, the MSBA’s Government Relations Director, agreed that the coalition has a tough battle before it this session.
“The ground kind of shifted with the election results,” he said. “The Republican platform opposes any change to the current judicial election system … so [the challenge] would be trying to get a bill through a Republican Legislature that the party itself is opposed to.”
Courtney Ward Reichard is president of the Hennepin County Bar Association, which also supports the coalition’s efforts. She too acknowledged that the playing field has changed from last year.
“There’s going to be a shake up at the Legislature and it’s going to require everyone to regroup a little bit and to think about how you address this important issue with the new committee structure and the 60 new legislators,” she said.
Nonetheless, Ward Reichard is pleased that the coalition intends to move forward with its proposal and continues to talk with the lawmakers it worked with last session.
‘We are energized’
Routman said that while the turnover in the Legislature may make the reform issue a bit more challenging next year – in part because it’s unclear how the leadership feels about this issue – coalition members are not discouraged.
“We’re encouraged because a change in at least some of the structure has been beneficial to this issue,” he said.
According to Routman, the exact form of the anticipated legislation is unclear, but it should be similar to what has been introduced before. He said that the coalition has hired a team of lobbyists and grass-roots organizers to assist in its efforts to educate the public and the new legislators on why a switch to retention elections is the best way to maintain judicial impartiality.
The coalition also will continue to sponsor such forums as the one at the University of Minnesota’s Humphrey Institute on Nov. 18: “Judges, Money, and Politics: The State of Judicial Elections in Minnesota.” Panelists at the event included former Minnesota Supreme Court Chief Justice Eric Magnuson, who spoke in favor of the retention election system as a way to keep partisanship out of the judiciary, and attorney Greg Wersal, who supports full and free elections as a way to keep judges accountable and encourages inclusion of a judicial candidate’s political party designation on the ballot.
Other panelists were Gary Borgendale, who provided a Christian perspective on the issue, and Sara Walker, the chief operating officer at 180 Degrees, Inc. Both support a switch to retention elections.
Routman said that the business community in particular sees judicial selection as an important issue.
Corporations don’t want to be saddled with being hit up for significant donations in judicial races, he said. “They also understand it’s in the best interests of corporations to have an environment where decisions are going to be reached in an impartial way. [They] are supporting this effort, frankly, in a more vigorous way than they did even before the election.”
Schultz said he’d be surprised if many in the business community support a switch to retention elections because all around the country corporations have taken advantage of competitive elections to stack the courts with judges who are sympathetic to their interests.
“The only way I think corporations might be willing to line up behind a move to retention elections is if for some reason they perceive competitive elections would be more of a threat to business liability or that it would drive up the costs they’d have to spend on judicial races,” he said.
Nonetheless, Routman said that the coalition is constantly expanding and has recently welcomed several minority bar associations to its ranks. “We are energized, and the coalition continues to grow … and broaden its ranks.”