24 judicial wannabes in one race raises a debate

  • Article by: JIM ANDERSON , Star Tribune
  • Updated: October 29, 2010 - 9:58 PM

The race for an open judge's seat based in Stillwater started out in intrigue, and now it has sparked fresh debate statewide.

Judges' races barely register on the election season radar -- normally. But the race for the 10th Judicial Seat No. 3, based in Stillwater, didn't start out normally and has snowballed into one of the most unusual elections in state history.

With vexed voters trying to sort through 24 candidates vying for the $129,154-a-year job with almost lifetime security, it seems more lottery than election. The race could be won with 5 percent of the vote.

And it could become the poster child in the next legislative session, as debate is rekindled on how judges in Minnesota are chosen.

It's even possible that one of several candidates who have abandoned their campaigns could be elected, because their names remain crammed on ballots in seven counties that make up the district.

And don't even bring up the subject of a possible recount.

At the start, it looked to be a typical low-key judicial election. Washington County District Judge Thomas Armstrong filed for reelection to a fifth six-year term. About 90 percent of incumbent judges run unopposed in Minnesota, and open seats are relatively rare.

Hours before the June 1 filing deadline expired, his longtime law clerk, Dawn Hennessy, also filed. A few days later, Armstrong withdrew, announcing his retirement, leaving Hennessy the only candidate with no opportunity for others to get on the ballot.

Hennessy then withdrew as questions were raised, and the vacancy prompted the secretary of state to open up the filing to new candidates, who signed on in unprecedented droves (including Hennessy, again).

Many unknowns

"I know how big this district is -- I don't know how I would campaign," said Doug Johnson, Washington County attorney.

Johnson knows from experience. In 1996, while an assistant county attorney, he ran for one of those rare open judges' seats, placing third in a field of 11 candidates.

"As a county attorney who deals with a lot of lawyers, I know so few [of the candidates]," Johnson said. "So I know if it's difficult for me, I can't imagine what it's like for the voters."

Johnson was also a member of the Quie Commission, headed by former Gov. Al Quie, that came up with a set of recommendations aimed at heading off what some fear is an incursion of politics into nonpartisan judicial races. Reform efforts made significant progress in the past legislative session, and are going to be revisited in 2011. The 10th District race will likely be part of the discussion.

"This is the best example as to why the Legislature and the state of Minnesota should adopt the Quie Commission's recommendations on how to elect judges," Johnson said.

The core of the recommendations is the creation of "retention elections." Under the proposal, governors would appoint judges, and their performance would be reviewed by an independent merit selection commission. Based on the panel's finding, voters would decide whether to keep or oust the judge.

The goal is to avoid expensive, often brutal, campaigns, and offer voters better information.

Endorsement questioned

One of the 24 candidates, Chris Penwell, was endorsed by the state Republican Party, a step that alarms reformers. That's because impartiality is the bedrock principle of an independent judiciary, said Brent Routman, president-elect of the Minnesota State Bar Association and president of the Coalition for an Independent Judiciary.

Accepting and declaring a political endorsement leaves at least an appearance that a judge is no longer impartial, Routman said.

"Judicial elections need to be separate and distinct, so that you don't have the abuses and political influences you have in elections for Legislature, for governor or other political races," he said. When appearing before a judge, "you expect an impartial hearing based on the facts of law, not predetermined bias or political positions."

But fears over lost impartiality are a "red herring," said Tony Sutton, chairman of the Republican Party of Minnesota, which opposes reform efforts. Voters, he said, can make their own judgments about judicial candidates, and whether they're doing a good job.

Judges often time their retirements so that their replacements are appointed by the governor, Sutton said. When it's time for reelection, judges are rarely opposed and it's also the only name on the ballot where "incumbent" is designated.

"It's all rigged toward the incumbent, so it's very much an insider's game," Sutton said. Voters can also draw their own conclusions about the weight of an endorsement, but Sutton said it promotes accountability. "And that scares a lot of incumbents," he said. "But people who are held accountable tend to do a better job."

Don Mashak, a Tea Party activist and vocal opponent of the judicial reform, also said voters are the best judge of judges. Last month, the Tea Party held the only candidate forum for the 24 candidates, in which 15 participated.

"What I see happening in our government is elected officials putting bureaucrats between themselves and the voters," Mashak said. Retention elections, he said, would further insulate judges from accountability.

In the meantime, far from the fray, 10th District counties are getting ready to count ballots on Tuesday, and the judge's race has thrown them a curve.

"I wouldn't call it a problem, but it was a concern," said Kevin Corbid, Washington County's director of property records and taxpayer services. "There was certainly a concern that the number of candidates would create a need for a second ballot, but fortunately, that didn't happen."

As early absentee ballots trickle in, it appears the race has thrown voters, as well, he said. "Voters are really surprised there's that many candidates."

Jim Anderson • 651-735-0999

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