Anoka County District Judge Michael Roith took the path that many of his retiring colleagues take when he applied to the state Supreme Court for senior judge status this year. If approved, he would earn $350 a day filling temporary bench openings created when judges take sick leave or retire before their terms end.

But unlike most applicants, Roith fell into the rare category of a judge defeated in an election.

Although no law or guideline exists to prevent his appointment, Supreme Court Chief Justice Lorie Gildea informed Roith by letter that it would be inappropriate "to appear to circumvent the will of the electorate" and give him the position.

Roith, who served 26 years on the bench and as a longtime adjunct law professor, said his case should have been based on its merits and raises serious questions about the state's informal policy.

Roith said his election defeat last fall to John Dehen, a relatively unknown attorney and Ramsey City Council member, came at a time when frustrated voters sought change and didn't always know the records of the candidates.

It appears previous chief Supreme Court justices have consistently denied senior status to defeated judges since they were given the decisionmaking authority by the Legislature in 1974. Gildea acknowledged the longstanding policy and said her reason for denying Roith was unrelated to his skills and abilities.

Some legal scholars agree.

"The public decided a person shouldn't be a judge," said Stephen Simon, a law professor at the University of Minnesota. "Therefore, why should the court ignore that? Otherwise, elections would be meaningless."

Roith, 66, had won four elections before Dehen defeated him by 10,000 votes in November. In his letter to Gildea in February, he said he had never been reprimanded by the Supreme Court for misconduct. Yet Dehen was publicly disciplined by the court as an attorney.

"That is the nature of judicial elections in Minnesota," Roith said.

Dehen declined to comment for this story.

In explaining her decision, Gildea said the state has chosen to select its judges by election; appointing a judge who lost an election would go against a policy that best protects the overall interests of the judicial branch. A court spokesman said Gildea believes the letter speaks for itself and would not have further comment.

Wording of the law

The law authorizing the chief justice to appoint retired judges to senior status states only that the applicant must be in good standing and not practicing law.

In his letter to Gildea, Roith emphasized that his defeat at the polls wasn't related to any deficiencies in the performance of any judicial duties.

"The reservoir of knowledge and experience I have amassed during my judicial career is a valuable asset to the citizens of Minnesota and should not be lost to them," he said.

Three years before his appointment to the bench in the 10th Judicial District by Gov. Rudy Perpich in 1984, Roith successfully prosecuted Ming Sen Shiue, one of Minnesota's most notorious criminals.

Currently 61 retired judges are approved to fill temporary vacancies. The $350-a-day salary is less than what a sitting judge earns, and they receive no health benefits, said Michael Moriarty, court administrator for the 10th District. He said he wouldn't have any reservations using Roith to fill in.

"He would be used if approved," he said. "Recently retired judges from your district that are willing to serve are an asset. They know the players and dynamics of the courtroom. It would be pretty seamless."

A better system?

Roith knew his election loss would be a major roadblock to approval of his application. So, apparently, did Edwin Chapman, the former chief of Hennepin County Municipal Court in the late 1960s, who was defeated by Peter Albrecht in 1976. He resigned a day before his term expired and applied as a retired judge, said Simon. Chapman died in 1992.

Richard Painter, another University of Minnesota law professor, has been a critic of judicial elections. He would like to see the creation of "retention elections" in which 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. Such a process would allow every judge to be considered for senior status, he said.

"Just because the electorate voted against a judge shouldn't eliminate them for approval," Painter said. "This is what we have to live with, so you have to be consistent across the board. All we can do is have the same rules for everybody until somebody comes up with a better system."

Roith, however, still argues that Minnesota's system is inconsistent. For many years, non-elected referees in Hennepin and Ramsey counties have been hearing contested matters in juvenile, family and housing courts, he said. Referees are selected by a chief or presiding court judge from the county.

"Referees function as decisionmakers in the judicial system, but they are never elected," he said.

"I don't want it to depend on whether I was re-elected,'' he added, "but based on my abilities and experience."

David Chanen • 612-673-4465