In 2002, a 5-4 majority of the U.S. Supreme Court held that states may not prohibit judicial candidates from announcing their views on disputed legal or political issues,¹ thereby opening the door to election campaigns filled not only with the prospect of full disclosure of a candidate’s views on issues of the day, but also of vigorous and potentially vituperative attacks by interest groups who may not share those views. 

Justice at Stake

On the heels of that decision, the investment by interest groups in judicial elections has burgeoned, with a 2004 Supreme Court race in Illinois spending a record $9.3 million, prompting the legal opponent of a judge’s contributors to observe that now its case would be lost because the election had been lost.  In Texas, half of the judges surveyed noted that political contributions do influence their decisions, and acknowledged that they accept campaign checks at court proceedings and expect certain levels of giving from law firms.  Big-money court races are spreading rapidly across the country, with the average cost of winning jumping 45 percent between 2002 and 2004.  Over 40 percent of states with contested judicial elections broke candidate fundraising records. For example, between 2000 and 2004, 37 state supreme court candidates each raised more than $1.0 million. Even states where judicial candidates historically have raised very little money are now seeing judicial candidates raise more than $1.0 million for their campaigns. In light of the trends of increased campaign expenditures, Minnesota’s longstanding practice of low-cost campaigns may be at risk.

Of perhaps more concern is the fact that interest groups advancing one agenda may actually be funded by very different factions with strong political goals.  In West Virginia a group calling itself “And for the Sake of the Kids” raised $3.6 million for a single supreme court race in that state, but the biggest contributor to the “family values” group was a mining executive fearful of the targeted judge’s attitude on pollution.  It simply was more expedient to target the judge as “soft on child molesters.”  The incumbent lost, leaving a “gentler” judge to address the case of the polluter.

Minnesota has a tradition of excellent, fair-minded judges serving at all levels of the judiciary.  While in recent years, judicial vacancies have been filled by gubernatorial appointment—often drawing on recommendations of a merit selection commission—Minnesota is historically one of those states that has constitutionally decreed that judges are to be elected.  In her concurrence in White, Justice Sandra Day O’Connor observed that while “the very practice of electing judges undermines interest” in either actual or perceived judicial impartiality,² there is only one type of election: a full and free political discourse unfettered by ethical limitations to circumscribe how candidates express themselves, or their advocates campaign for them.  This brings to mind the admonition of the U.S. Supreme Court in Butler v. Michigan,³ that sometimes our laws invite us to “burn the house to roast the pig.”

Existing System of Judicial Selection in Minnesota

As noted, the Minnesota Constitution provides for judicial elections, but if a vacancy occurs during the judge’s term, the governor may appoint a successor.⁴  In practice, most judges initially obtain their offices by appointment rather than by election.  Once appointed, the judge must run for election in the next general election occurring more than one year after the appointment.⁵  Judges serve a six- year term and may run for reelection every six years.⁶  Judicial elections are currently designated as nonpartisan.  Under the system of nonpartisan elections, judicial candidates do not have a party affiliation listed on the ballot.  Instead, there is an “incumbent” designation on the ballot.  The mandatory retirement age for judges is 70.

The Quie Commission

Feeling that Minnesota should seek to preserve the quality of its judiciary, a 30-member group called the Citizens Commission for the Preservation of an Impartial Judiciary began to meet in the wake of these events.  Under the leadership of former Gov. Al Quie, the commission looked for ways to preserve the public’s right to accountability of the judiciary (whether through some form of elections or otherwise) while striving to minimize the derogating effect that mudslinging could have on the public’s respect for the state’s judiciary.

The group consisted of conservatives and liberals.  It included members from labor and industry, from voting rights groups and from faith-based organizations.  All members of this diverse consortium focused on studying how to preserve judicial quality in our state.  Holding monthly meetings over the course of about a year and a half, the commission sought input from the American Judicature Society, the Justice at Stake organization (a group that studies judicial election campaigns), and the parties and counsel in White, as well as jurists in other states that have addressed these kinds of issues.  It held three public hearings throughout the state and initiated news radio discussions to flesh out thoughts on all sides of the issues.

In March the commission issued its report to the public, consisting of a majority and minority report recommending two alternatives to address the issues.  Having had the privilege to serve on the commission, I was asked by The Hennepin Lawyer to summarize the “majority report.”  Both the majority and minority reports recognized the same basic threats to Minnesota’s judiciary.

Commission’s Findings in the Post-White World

The Quie Commission members agreed that in a world after White Minnesota’s system of nonpartisan elections could become much more partisan, like Illinois and Texas are, thereby increasing the cost of elections, as in West Virginia.  This could result in political parties and special interests—however well meaning—to seek to elect judges that would be responsive to their political or special-interest agenda, rather than the rule of law.  Because partisan races are more competitive and costly than nonpartisan races, the cost and competitiveness of Minnesota’s judicial campaigns could be expected to increase, also increasing the likelihood of bringing partisan politics into the courtroom.  Now that partisan-based activities by judicial candidates are permitted, the absence of party labels on the ballots for judicial campaigns will not ensure that judicial campaigns are nonpartisan contests.

Moreover, the commission feared that judges could signal or announce their views on “hot-button” legal issues to commit themselves in advance to a view, rather than following established precedents or legal principles, and enabling out-of-state moneyed interests to fund campaigns and influence judicial decisions.  Concern was also expressed about some of the unseemly television ads and negative campaigns that have taken over judicial elections in other states.  What could be done to address these apprehensions?

Unanimous Recommendations

The commission made four unanimous recommendations: (1) all judicial candidates should be nominated through merit selection whether for the trial or appellate bench, to ensure continued high-quality, merit-based judges, (2) selection should remain with the governor who is ultimately accountable to the public for his choices, (3) judges should also be subject to a performance review seeking objective grading of judicial performance in the timeliness, conscientiousness, and courteous resolution of their judicial tasks, and (4) once chosen, judges should be allowed to serve for a time sufficient to establish a meaningful track record before their service is judged.  (Currently an election occurs within approximately two years of an appointment.)

Majority and Minority Reports

While agreeing on these recommendations, a fifth issue resulted in a divergence of opinion: how to assure accountability for judges once they are selected?  A majority of the commission recommended that the right of the public to evaluate judicial service should be maintained through “retention elections.”  The election would include a ballot question asking whether a specific judge should be retained.  The public’s evaluation would include input from a performance review commission that would grade the judge according to certain objective criteria.  Rather than run against a specific opponent, the incumbent would run on her or his record of service.  If voted out of office, the incumbent would be replaced through the merit selection process.  According to the majority’s thought process, the public will have the right to “fire” a judge shown objectively to lack qualifications for office, but outside interest groups and political parties­—while still free to speak openly—would not be able to “buy” a specific replacement regardless of how much money is spent to unseat the incumbent.  This would substantially reduce the prospect that campaign war chests would be opened and that negative campaigning would be any more dramatic than it had been.

A minority of the commission departed from this suggested solution, preferring instead that once appointed by a governor, based on input from a merit selection group, judges would continue to serve indefinitely unless a judicial performance evaluation commission deemed them to be unqualified.  The framework would thus be similar to the federal system of executive branch appointments, but with a neutral performance evaluation commission rather than the public sitting in judgment of a jurist’s continued qualifications to serve.

Both approaches would require an amendment to the state’s constitution, which currently calls for traditional elections of judges.  One of the main influences affecting members of the commission who voted in the majority was the presumption that constitutional change was more likely if some form of continued public participation through elections remained.

Specifics of the Majority Recommendation

The commission ultimately recommended adoption of the following method of judicial selection for district court and appellate judges to address the risks posed by White:

Merit Nominations: Nomination of qualified candidates for judicial vacancies should be made by a merit selection commission;

Gubernatorial Appointment: Appointment of judges should be made by the governor from a list of candidates provided by a merit selection commission for an initial term of approximately four years (and, if retained by the voters, for subsequent terms of eight years);

Performance Evaluation: A performance evaluation commission, a majority of whom would be nonlawyers, should be created with half appointed by the governor and half appointed by the chief justice to (a) conduct confidential midterm performance reviews of judges to address ways of improving judicial performance, and (b) conduct performance reviews of judges near the end of their terms, with appropriate precautions for confidentiality of certain data and certain deliberations of the commission, with publication of the results on the ballot and elsewhere to inform the voting public; and

Retention Elections: Renewal of the judge’s term should be determined through retention elections—without challengers—in which the ballot would disclose the performance evaluation commission’s findings about the judge.  

Constitutional and Statutory Amendments Required

The commission’s specific recommendations regarding the selection, retention, and performance evaluation of judges include the following:

• Proposed amendments to Article VI, Section 8, of the Minnesota Constitution establishing that judicial vacancies shall be filled by appointment by the governor from a list of candidates nominated by a merit selection commission;

• Proposed amendments to Article VI, Section 7, of the Minnesota Constitution establishing that a judge’s initial term following appointment shall be approximately four years, the renewal of judicial terms shall be decided by the voters in retention elections, a judge’s term of office following retention shall be eight years, and a performance evaluation commission shall evaluate the performance of judges and publish its performance rating on the ballot;

• Proposed legislation detailing (a) when a judicial vacancy exists, (b) the process for nominating judges by the merit selection commission and for gubernatorial appointment, (c) the conduct of judicial retention elections, (d) the composition, selection, and duties of the merit selection commission, and (e) the composition, selection, and duties of the performance evaluation review commission; and

• Proposed amendments to Minnesota Statutes § 480B.01, subdivision 11, relating to filling district court vacancies.

Conclusion

We turn to the courts for justice.  We expect our judges to be fair and impartial.  Until the Aug. 2, 2005, decision of the Eighth Circuit in Republican Party of Minnesota v. White, we expected our judges to remain above the potential entanglement of “partisan-activities” and not to become tainted by “solicitation” of contributions or embroiled in efforts to “announce” their views on hot-button topics of the day.

It is a brave new world.  With its pronouncement in White that not only is it permissible for judicial candidates to “announce” their views, but also that the First Amendment requires that they be allowed to engage in “partisan-activities” and even to engage in “solicitation,” the Eighth Circuit has taken the implications of the electoral system to their frighteningly logical conclusion.

In states that have not found some constitutionally acceptable mechanism to constrain the free spending means of free speech that ordinary election campaigns engender, the public’s respect for their judiciary has fallen.  As the cost of each judicial election has increased, and the bench elsewhere has come to be occupied by hot-button issue partisans, the sense that our jurists are accountable only to the rule of law has fallen away.  While it may be a “myth that courts are apolitical and do not make policy,” ⁷ it was that thought that comforted many of us.  We assumed our judges made the decisions they felt were called for by the law, rather than one responsive to the clamor of the majority’s will.  Members of the Quie Commission—whatever solution they came down in favor of—agreed that the high quality of Minnesota’s judiciary is something worth going to special effort to preserve.  I invite you to become more informed on this important question.  Lawyers are leaders, and they must serve that role in the task most important of all: preserving everyone’s access to an impartial judiciary.  

²  536 U.S. at 788.

³  352 U.S. 380, 383 (1957).

⁴  Article VI, Sections 7 and 8.

⁵  Id.

⁶  Id.

⁷ White, slip op. at 12, quoting Ware, Money, Politics and Judicial Decisions, 30 Cap. U. L. Rev. 583, 594 (2002).