Minnesota Lawyer
Sen. Ann Rest, DFL-New Hope, pictured, says it’s important to move to a judicial retention system before Minnesota slips into the kind of costly judicial elections that have played out in other states. “Once people know they can buy a judicial election, it’s going to be very hard to say sorry, they are not for sale,” she said. (Staff photo: Peter Bartz-Gallagher)
Backers will push election amendment again in 2014, but support may be fraying
The 2014 legislative session could set the stage for a high-profile battle over how Minnesota picks its judges. A broad coalition is renewing a push to pass a ballot initiative that would move the state to a judicial retention election system.
Under the proposal, judges would stand for re-election, but instead of facing challengers, voters would simply cast an up or down vote to keep a judge around. If voters opt to toss an incumbent judge, an independent panel would review a new set of candidates and send a short list the governor, who would make the final pick. In addition, an independent review panel would be set up to review a judge’s tenure as a guide to voters. If the bill is approved next session, it could go on the ballot as soon as next fall.
The proposal has been debated at the Capitol for years, but advocates are trying to build momentum for the issue, fearing it’s only a matter of time before Minnesota slips into the kind of costly judicial elections that have played out in other states.
An October report from the Brennan Center for Justice and the National Institute for Money in State Politics shows that outside interest groups spent at record levels in state-level
judicial elections in the 2011-2012 election cycle. Independent groups spent $15.4 million on judicial races during those two years, which drove a record $33.7 million in television advertising in those contests.
Much of that money was spent in Michigan last year, where a 4-3 conservative majority on the state Supreme Court was at risk. Closer to home, outside groups spent more than $5.1 million on the state Supreme Court race in Wisconsin in 2011, according to the report, where incumbent Justice David Prosser was challenged by pro-union candidate JoAnne Kloppenburg.
“I do think that continues to be a big risk for Minnesota. It would only take one election when that occurred for us really not be able to go to a retention election system after that,” said Sen. Ann Rest, DFL-New Hope, the author of the proposal in the Senate. “Once people know they can buy a judicial election, it’s going to be very hard to say sorry, they are not for sale.”
A broad coalition that includes the Minnesota Chamber of Commerce, the AFL-CIO, former Republican Gov. Al Quie and former Supreme Court Chief Justice Eric Magnuson has been barnstorming the state in the interim to try and build awareness of the issue.
“It’s about good government, and business says they don’t move to states that have judiciaries that do not have good reputations,” said Sarah Walker, president of the Coalition for Impartial Justice, which is leading the charge. “Minnesota has a well-recognized, quality judiciary, but the first time we have a $30 million judicial election contest, we won’t be able to step back from that.”
Minnesota’s judicial election history
Some point to a Minnesota court case for paving the way to politicized judicial elections.
Minnesota used to operate under a judicial code of ethics that kept candidates for the bench from discussing issues that could come before them in a court. In 1996, the so-called “announce clause” came into question when state Supreme Court associate justice candidate Greg Wersal distributed a flyer critical of several past court decisions. An ethics complaint was filed against Wersal, but it was ultimately dismissed.
But Wersal took it a step further and brought the issue to court, filing a federal lawsuit that claimed the clause limited his First Amendment rights. The suit made it all the way to the U.S. Supreme Court, which ruled the announce clause to be in violation of the First Amendment. From then on, it was OK for judicial candidates to discuss political views and raise money, even in states that have nonpartisan elections.
“The Supreme Court ruling skipped over the point that judges should never act like politicians,” Magnuson said. “Judicial candidates and their campaign should all look the same: ‘I will do best to do my job, follow the law, and make the right decision.’”
Despite the origins of the case, Minnesota has still managed to avoid expensive and political judicial elections. Under the current system, judges are supposed to be chosen in nonpartisan elections, but many judges resign before their term ends, allowing the governor to pick their replacement. Only current state Supreme Court Justice Alan Page was elected to his position. The governor is given a pool of candidates to review from the Minnesota Commission on Judicial Selection.
When incumbent judges do go up for re-election once every six years, they are almost always unopposed or easily trump their challengers. Another reason the state has avoided politics in judicial elections is that the two major political parties have stayed away from casting endorsements in that contest, Rest said.
“It’s available, but they haven’t made it a major part of their party platforms,” Rest said. “To their credit, judges and justices who have been appointed rather than running for an open seat and have a background in partisan politics have not sought that endorsement. That is a really important statement, and kudos to them for taking such a strong position of integrity, but that may not always be the case.”
Political challenges ahead
Both Rest and Simon have said it’s important that the amendment moves forward with bipartisan support, but among certain elements of the GOP base, promoting competitive, partisan contests for judgeships is a touchstone issue.
Several Republicans who have supported the bill in the past are now wavering in their support because of blowback from the base. Senate Minority Leader David Hann has pulled his name from judicial retention election proposals.
Rep. Michael Beard, GOP-Shakopee, has already taken considerable heat from activists for supporting the proposal. At Beard’s GOP endorsing convention last year, Wersal and longtime judicial election activist Bonn Clayton were on hand rallying support for Beard’s challenger, Bruce Mackenthun. Beard, who is serving his sixth term, went through 12 rounds of balloting before Mackenthun conceded. Beard says he’s mostly worked out the issue with those activists, and will still co-author the proposal next year, but that’s not the case for many Republican lawmakers.
“They see it as a basic fundamental assault, a highway robbery of their ability to elect justices,” Beard said of the activists who have opposed him over the issue. “I know this has had bipartisan support in the past, but I know some Republicans have said, ‘Beard has taken a beating, and let’s just let him do that and let’s just hope that it never comes to the floor so we don’t have to take a recorded vote on it.’”
The other challenge is distaste for moving ahead with constitutional amendments after the state faced two contentious amendments last fall. Magnuson calls it “constitutional weariness.” But unlike some past amendments, he added, judicial elections can only be fixed through the constitution. “We are saying: There are certain issues that go to the very core of our government that should be examined.”
The amendment awaits hearings in the Senate Elections Subcommittee and the House Judiciary Committee. House Judiciary Chairwoman Deb Hilstrom, DFL-Brooklyn Center, has questions about the bill before it can move forward.
Hilstrom wants to know more about the review process for judges, including who will perform the review and whether it will be open to the public. She also wants to address whether judges will have some kind of indication of how they performed on independent review. That could mean simply writing “qualified” or “unqualified” next to their name on the ballot, she said.
She also points to Iowa, where retention elections are in place but the state still recently faced costly Supreme Court races over the issue of gay marriage.
“Some folks in the court have said this really leaves judges open to an 11th-hour negative media blitz to just vote no. There needs to be discussion about what that means,” she said. “If you are going to implement a whole new system, you better make sure you implement it correctly.”
Rep. Steve Simon, DFL-Hopkins, the author of the bill in the House, knows there are challenges ahead next session. But he sees momentum building for the issue, which has been shelved in previous sessions.
“So many people are taking a fresh look on this,” he said. “One of the challenges will be time. It’s a short, short session, and I think proponents will have to be diligent and efficient — more so than ever.”
