Supporters of judicial retention elections gearing up for another push

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Last year voters in Wisconsin witnessed an ugly campaign for a seat on the state’s Supreme Court between incumbent justice David Prosser and assistant attorney general JoAnne Kloppenburg.

Some three dozen outside interest groups spent $4.5 million seeking to influence the outcome of the contest, according to a report by the Wisconsin Democracy Campaign. One television spot suggested Prosser had knowingly failed to prosecute a pedophile priest when he worked as a prosecutor in the 1970s; another attacked Kloppenburg for being “weak on criminals.”

The campaign was seen as a referendum on the policies of controversial GOP Gov. Scott Walker. The incumbent ultimately prevailed by barely 7,000 votes.

Such big-dollar judicial campaigns have become routine in Wisconsin and many other states in recent years. While Minnesota has so far avoided the trend, supporters of overhauling the state’s judicial elections argue that it’s only a matter of time before such contests become polluted with special-interest dollars.

“The storm clouds are brewing,” said Ryan Kelly, campaign director for the Coalition for Impartial Justice. “You just have to look across the St. Croix. It’s right over there.”

The Coalition for Impartial Justice is pushing adoption of so-called retention elections. Under such a system, some form of which has been adopted in 20 other states, there would not be contested judicial elections. Instead voters would simply indicate whether incumbent judges should retain their posts. To aid voters in the decision-making process, a nonpartisan Judicial Performance Evaluation Commission would be established to assess the competence and effectiveness of judges. In addition, all vacant judgeships would be filled through a “merit selection” process, whereby an expert panel would recommend potential candidates. Such changes would require a 2012 ballot referendum on amending the state’s constitution.

Measure failed in 2009

The proposal is not new. Two years ago similar legislation seemingly had momentum after easily clearing an initial committee. But the House bill got stuck in the Civil Law Committee and never emerged. Kelly blames the bill’s collapse on a seemingly unrelated event: the Minnesota Supreme Court’s ruling that then-Gov. Tim Pawlenty had overstepped his authority by making unilateral cuts to balance the state’s budget.

“I think it was getting very close,” Kelly said. “And then ironically a fair and impartial judiciary handed down the unallotment decision.… That sucked the air out of the rotunda.”

Now advocates are gearing up for a strong push in 2012. They’ve assembled an ideologically diverse coalition of supporters that includes the Minnesota Chamber of Commerce, the Minnesota AFL-CIO, the Center of the American Experiment, Common Cause Minnesota, three former governors and three formers chief justices of the Minnesota Supreme Court.

“We really are focusing on grass roots,” said Sarah Walker, president of the Coalition for Impartial Justice. “I think for a long time the opposition has framed us as just being a bunch of elites and attorneys interested in preserving a status quo. We’re precisely the opposite.”

The coalition has signed up some key GOP legislators as supporters of the judicial elections overhaul. They include Sen. David Hann, chair of the Health and Human Services Committee, Sen. Gen Olson, chair of the Education Committee, Rep. Joe Hoppe, chair of the Commerce and Regulatory Reform Committee and Rep. Mike Beard, chair of the Transportation Policy and Finance Committee.

The group has also lined up a high-power team of 15 lobbyists, many with Republican ties. These include former Senate Chief of Staff Cullen Sheehan, Todd Hill, former GOP state Rep. Teresa Lynch and Mike Franklin.

Chairs’ opposition may block bill in Senate

Despite this impressive roster of supporters, the proposal still faces considerable hurdles. Many GOP activists are adamantly opposed to scrapping contested judicial elections, viewing it as an assault on democracy. In fact, the party’s platform explicitly calls for keeping the current electoral system. “We continue to support the election of judges as written in the Minnesota Constitution and oppose any proposals to eliminate or limit these elections,” it reads.

In addition, Sen. Warren Limmer, the influential chair of the Judiciary Committee, is steadfastly opposed to the proposal. “In light of today’s public sentiments regarding politicians, the last thing anybody should be suggesting is taking away the right of a citizen to affect their government,” Limmer said. “I think that idea is D.O.A.” He further suggests that any Republican legislator backing such a proposal is “writing their own death warrant.”

But Beard, the chief author of the House bill, argues that GOP activists are misguided in their opposition to retention elections. “The judiciary’s supposed to be fair and impartial and not bring their biases to the decisions,” Beard said. “They’re supposed to defend the constitution and interpret the law of the land that policymakers make. So judges are way different. I think my party activist friends have lost that concept, that judges are not policymakers, they’re judges.”
Supporters of retention elections insist that Limmer’s antagonism isn’t necessarily a problem. “We’re aware of the challenge in Senate judiciary,” Walker said. “But I have the utmost faith and respect in Senator Limmer. I believe that at the end of the day he will listen to the will of the people. If we move enough of the other legislators, he will come around and understand that this is something that he needs to let the voters decide at the end of the day.”

However, other key Republicans are also lukewarm on the issue. The Senate bill has been referred to the Local Government and Elections Committee. Sen. Ran Vandeveer, who chairs that body, says that he’s not sure if it will even warrant a hearing. “I’m not sure there’s a problem that we need to correct right at the moment,” Vandeveer said. “We haven’t made a decision on it yet.”

Proliferation of amendments

Another difficulty facing supporters of retention elections is a potential glut of proposed constitutional amendments in 2012. Voters are already slated to decide whether to amend the constitution to define marriage as solely between a man and a woman. In addition, there are at least four other possible ballot initiatives being discussed. There is a popular belief that putting more than three questions on the ballot would doom them all.

But Kelly points out that this perception is actually false. Going back to 1950, there have been 18 instances where voters faced more than one ballot question. In just one instance did voters turn back all the referendums. That was in 1952, when five ballot questions were defeated. By contrast there have been five instances where voters offered a split decision on ballot initiatives.
“We’re not trying to shove this through … in a committee at midnight and make people accept this,” Kelly said. “Let’s take this debate across the state and at the end of the day let the people weigh in and decide how they want to select and retain [judges].”

Beard points out that it is the only potential constitutional amendment that enjoys bipartisan support. He believes that could be a selling point with his GOP colleagues in getting the bill on the agenda.“I think it’s going to depend on me and on the chief authors to prevail on their leadership, to say this is a bill that makes sense to put on the ballot this year, especially with the angst and emotional trauma of putting the marriage amendment on the ballot,” Beard said. “We need a bill that shows some bipartisan support. This is one.”