DFLers move to inoculate judicial elections against partisanship

  • Article by: PAT DOYLE , Star Tribune
  • Updated: April 6, 2010 - 8:07 PM

Judges would step down if rejected by voters and be replaced by gubernatorial appointees.

Contested judicial elections would become a thing of the past under a proposal by some DFL legislators, who want a constitutional amendment that would eliminate challengers to sitting judges.

Instead, judges would be evaluated by an advisory panel before proceeding to a "retention election." If voters gave a thumbs down, the judges would step down and the governor would appoint a replacement.

If approved by the House and Senate, the proposed amendment would appear on the November ballot.

Supporters of the proposal say federal court rulings in recent years have paved the way for freewheeling judicial elections that could result in the same kind of harsh ads and partisan attacks that occur in races for other offices.

"We now have the real potential in Minnesota for ugly, vile campaigns where people's character are attacked rather than their ability to be a good judge," said Sen. Ann Rest, DFL-New Hope, sponsor of one retention bill.

But opponents say fears that money and politics will taint contested elections are overblown. A retention system, they say, would deprive voters of a choice between two candidates and encourage an elitist selection system.

"It's an incumbent protection program," said Gregory Wersal, the attorney whose challenges to restrictions on judicial elections led to a U.S. Supreme Court ruling that allows candidates to state their views on legal and political issues.

DFL leaders in the House and Senate support the proposed amendment.

Under the proposal, judges appointed by the governor would stand for retention at the first regularly scheduled general election held more than three years after their appointment. Judges' terms would be extended to eight years, from the current six.

The proposal would create a judicial performance commission to evaluate judges and publicize the results before an election, although a negative rating would not prevent a judge from running for retention.

The Republican Party of Minnesota joined Wersal years ago in challenging the state restrictions on judicial elections. DFLers in the House and Senate are the most supportive of a retention system, although Rest is joined by Senate Minority Leader David Senjem, R-Rochester, and Sen. Pat Pariseau, R-Farmington, in sponsoring the Senate measure.

Rest said the retention system would "allow voters to give their evaluation of the work that a particular judge has done, without having to have an opponent who is just out there attacking for the sake of attacking."

Proponents say a series of court decisions, including a January U.S. Supreme Court ruling allowing independent spending by corporations, increase the likelihood of special interests influencing judicial elections. They point to a West Virginia case in which a businessman spent $3 million to help elect a state supreme court judge, who later cast a deciding vote in a decision favorable to the man's company.

Wersal said there is little evidence that much money has been spent on judicial elections in Minnesota, and that the state's judicial canons require impartiality on issues.

"The problem with judicial elections historically is not that there's been too much money," he said. "The problem has been when there is so little money, there's no information gotten out to the voter. ... The judicial candidate has no money to spend to get out a message."

In the wake of federal court decisions allowing an unspecified amount of contributions to judicial candidates, the Minnesota Supreme Court approved canons that set limits at $2,000 per contributor. The Senate last year passed a bill that would have put that limit in statute, and the House is considering it.

Rest said that if the Legislature and voters approve retention, judges would have less need for campaign contributions because retention elections are far cheaper to run than contested elections.

Pat Doyle • 651-222-1210

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