In a packed hearing room of over 100 observers, legislators with the State and Local Government Operations committee took a first step towards forever changing judicial elections in Minnesota. HF 224, proposed by Representative Steve Simon of Saint Louis Park, and a coalition of Democrats and Republicans, calls for a constitutional amendment to end contested judicial elections in Minnesota, replacing them with retention votes, in which the public’s only option would be to say whether or not a judge should keep their job. (Also see Capitol Report column on this bill.)
Under current law, many judges, including members of the Minnesota Supreme Court, must run political style elections to retain their current seat. While most go unchallenged on the ballot, some incumbent judges do face opposition and must mount campaigns to keep their job. Supporters of the bill say that the changes are needed due to recent court decisions that they believe will adversely affect the judicial system.
The Republican Party of Minnesota v. White case loosened restrictions on judicial candidates, allowing them to seek party endorsement for elections, speak to political gatherings, identify themselves as a member of a political party, and solicit money personally from individuals. They may also take public positions on disputed legal or political issues.
Citizens United v. Federal Election Commission struck down campaign finance law that restricted the use of corporate money independent expenditures – campaign expenditures made by outside groups without the knowledge or consent of a candidate’s campaign.
Supporters of the bill are concerned these changes will lead to expensive judicial races in Minnesota like those seen in neighboring Wisconsin, where special interests can influence results to further their poltiical agenda. According to the Wisconsin Democracy Campaign, a self-described nonpartisan watchdog group working for clean, open and honest government, in 2007, spending by candidates and special interests for a Wisconsin Supreme Court seat topped $5.8 million – a then-record amount for a judicial race in the state by four times over. Not to be outdone, in 2008 a second race for a Wisconsin Supreme Court seat cost almost $6 million.
In testifying in favor of the bill, Eric J. Magnuson, Chief Justice of the Minnesota Supreme Court, said, “you have to do something about it. You cannot say it won’t happen here. It happens next door in Wisconsin, it’s going to happen here. And you can’t say that the problem will go away. The Supreme Court in [the White Decision] said there are first amendment principles that apply to elect judges in contested elections. And basically, the Supreme Court said if you don’t like the application of those principals, then change how you elect judges.”
“We have a court system to protect,” said Kathleen A. Blatz, a former Chief Justice of the Minnesota Supreme Court. “Under the new rules of the game, judicial elections across this country are becoming heavily subsidized by special interests. And this politicizing of the judiciary comes with a price – and it’s the people of our country and our state that will pay it.”
“Special interests do not support a particular judge because he or she will be fair and impartial,” Blatz went on to say. “They support judges who agree with their particular agenda – they want partial judges, partial to their agenda. And this, in my view, is the antithesis of what judicial elections should be about. The public has a right to have their cases heard by fair and impartial judges.”
Not all testifiers agreed that the constitutional amendment was necessary. “The White decision occurred in 2002, and yet we don’t have these elections in Minnesota,” said Greg Wersel, the lead plaintiff in the Republican Party of Minnesota v. White case. “We see them in Wisconsin, we see them Texas, we see them in Pennsylvania. But why not Minnesota? Well Minnesota is unique, Minnesota is different. And the difference is we put the word ‘incumbent’ on the ballot next to the judge’s name as a key to all voters who the incumbent is and that means if the voter has no information they tend to vote for the incumbent.”
Wersel went on to say, “the Code of Judicial Conduct specifically prohibits judicial candidates from making pledges or promises when they run for office.”
“This is an issue that is important to all of us,” said Simon. “It’s not a lawyer issue, it’s not a court issue, it’s not a judge issue, it’s an everybody issue. Because in every courthouse in every county in this state there are judges making life and death decisions for people. These decisions affect their livelihoods, it affects their liberty, it affects who gets custody of children. It is serious business, and all of us want to make sure that the people who occupy those positions are people who are ethical, who are honest, but most important, are impartial.”
The 90 minute debate ended with an 11-4 bipartisan vote to pass the bill and refer it to a second committee, Civil Justice. That committee has yet to schedule a hearing.