The push for judicial retention elections

A bipartisan effort led by the Coalition for Impartial Justice is proposing a system of judicial review and retention elections to avoid the highly charged, politically explosive contests common in Wisconsin, Texas and other states.

The coalition, a 7-year-old organization, has garnered the support of an unusually large and varied group, among them nearly 50 large corporations and nonprofits and more than 20 of the biggest law firms. Add to that a cast of individuals ranging from former Gov. Arne Carlson to current Secretary of State Mark Ritchie, as well as the Minnesota Chamber of Commerce and the AFL-CIO.

“We’ve raised the profile of the issue,” says Sarah Walker, president of the coalition. “Across the country Minnesota is seen as a shining star of hope in reversing the trend of big money in judicial elections. We have a good opportunity to get it done this year — it’s long overdue. All you have to do is look at Wisconsin for what can happen.”

Retention elections would require a statewide referendum on a constitutional amendment, and those who favor it, at least on the Republican side, have had to deal with a heavy dose of criticism. Rep. Mike Beard, a leader on the measure, suffered through 12 ballots at his 2012 endorsing convention because of a primary challenger who made an issue of his support for judicial retention elections.

Also, after contentious battles over same-sex marriage and the Legacy Amendment, many would prefer to give the Minnesota Constitution a breather. Former Supreme Court Chief Justice and Robins, Kaplan, Miller & Ciresi LLP partner Eric Magnuson concedes there may be “amendment fatigue” but “we can’t keep electing judges the way we have. It’s an urgent problem that does need to go to the people.”

At an appearance last month, House Minority Leader Kurt Daudt said he did not believe the measure had much of a chance, but he didn’t think either side had much of a stomach for a battle over judicial retention elections. And those involved in the issue say DFL leadership have asked that no constitutional amendments be put forward this session.

Sherri L. Knuth, policy and outreach manager for the League of Women Voters’ Minnesota chapter, calls the situation “disheartening,” especially considering the rare “widespread” support the effort has received from Republicans and Democrats. She blamed the House leadership for refusing to at least allow a debate over whether the measure should be on the ballot come November.

“The politics are getting in the way of an important policy change that would protect Minnesota elections from politicized judicial campaigns,” Knuth says.

Merit elections would ask voters a simple question when judges are running unopposed: Should they be retained? If more than half the voters declined to support a judge, his position would be filled by the appointment of the governor after a merit selection process.

Voters would be informed in a retention election by, ideally, a merit selection process that today exists in Minnesota in the form of the 49-member Commission on Judicial Selection. The group offers the governor a list of three to five candidates to fill district court openings. Those chosen to serve then have to run in the next election; the governor picks members of the Appeals and Supreme courts through a vetting process other than the Commission on Judicial Selection.

The Coalition’s idea is that a judge’s performance would be reviewed by a new group called the Judicial Performance Evaluation Commission. A year prior to their retention election judges would receive an evaluation from the commission. Voters could decide whether the judge should have another term with an up or down vote; if a judge is not retained, the commission would send the governor a list of prospective replacements.

The reasons for merit elections are numerous. A judge in Minnesota serves six-year terms, and once appointed, it becomes pretty much a career position since judicial elections are so uncompetitive. More than 90 percent of judges in the state run unopposed and the public has little information on their performances in office, Walker says. In 2010, for example, just 11 seats were contested out of 110 statewide and just two judges lost, she notes.

Merit elections have three distinct advantages, according to Magnuson. Voters rarely have any information on whether a judge is doing “a good bad or indifferent job,” he says. To rectify that situation the proposed constitutional amendment calls for the formation of a judicial performance review evaluation commission that would have 24 members — the majority non-attorneys — to be selected by the Legislature, governor and Minnesota Supreme Court.

Second, the amendment will keep partisan politics out of judicial elections, he says. Politicians should be free to make promises to voters but judges simply cannot do that. “What are they going to say, I’m going to sentence everyone to the max?” Magnuson asks. “You can’t run on a platform when you’re a judge.”

Finally, if a judge gets voted out, even for political reasons, the replacement will be carefully vetted and qualified, says Magnuson. A few years ago when voters unseated three Iowa Supreme Court justices who supported same-sex marriage, their replacements had gone through a merit selection process, he says.

Sitting judges have voiced concern that in a retention election a viral online campaign could be mounted two weeks before the election to get rid of them, Magnuson says. That has not happened in other states, he says, because there’s no guarantee the judge appointed through a merit selection process would share the political bent of a viral campaign’s supporters.

“The system is better off if we take politics out,” Magnuson says. “That some judge is ambushed is unlikely and if that happens the judge should stand on his or her record and they’ll presumably have the advantage of a highly qualified recommendation from the evaluation committee.”

Part of the coalition’s pitch is that merit selection has been a good thing for Minnesota. Lee Sheehy, chair of the Minnesota Commission on Judicial Selection, says during his three-year tenure Gov. Mark Dayton has used the judicial merit selection for appellate and Supreme Court candidates even though the law does not require it.

Overall, he says, the openings have attracted a “strong” and “diverse” group of applicants. Since the commission’s members, chosen by the governor and Supreme Court, select the final candidates for judicial posts their appointments are made by an equally diverse group. “It is a joint appointment of the judiciary and the government that includes lawyers and non-lawyers and people from all corners of the state,” he says.

The judicial selection process offers another benefit in providing a governor with a much more varied group of finalists than the public would in an election, according to Magnuson. “We have to give due consideration to diversity, and there’s greater diversity because of merit selection,” he says. “A member of a disadvantaged group may never have a chance of being elected in a general election but they have a much better chance of being appointed.”

If there is a drawback, it may be the quickness with which a vacancy is announced and an appointment made, says Sheehy, who makes sure to note he is not speaking for the judicial selection commission. Once a vacancy is announced the timeline to appointments is rarely more than four weeks. “I think a few more weeks to attract applicants would be desirable,” he says.

Yet the complexity of the legislation makes it all the more challenging. The Legislature’s Judicial Finance and Policy Committee will be studying any retention election proposals closely and its committee chair Rep. Deb Hilstrom, DFL-Brooklyn Center, has many questions. “The devil is in the details,” she says, from the issue of how the state will pay for retention elections to which judges of what courts will be subjected to them.

Hilstrom’s concerns extend to the questions of who will appoint the committee to select judges and what happens in cases where a governor doesn’t like the list of judicial finalists. No state has gone the route of retention elections in two decades so Minnesota must not make the change lightly.

“You have to make sure you get it right,” she says. “This is a major constitutional change, and if it’s going to happen, you have to have the details right.”