Washington County race puts judicial ballot back in spotlight

Besides throwing a wrench into a Washington County election and setting blogs and metro-area courthouses abuzz, a ballot maneuver in a judgeship race is helping invigorate efforts for judicial reform that failed in the Legislature this spring.

Judge Thomas Armstrong, a 30-year incumbent, filed his papers for reelection well ahead of Tuesday's deadline, just as he has done in five prior elections. Then, just before the deadline, his longtime law clerk, Dawn Hennessy, also filed papers.

The next day, the 63-year-old Armstrong withdrew, leaving Hennessy as the only candidate on the ballot. Though election officials said both of them followed the law, Hennessy withdrew on Thursday as questions mounted.

"My filing was done with the most honest and honorable intentions, that I could do the job, that I know the files, and that I have been here for many years and am familiar with the position," Hennessy, 36, said in an e-mail Friday to the Star Tribune. "I personally was thinking the most positive things when I filed; I really believed honestly that I was doing something good and that I could have done the job and done it well.

"... I never thought in my wildest dreams that things would have taken this turn down the dark path. I don't want people to think this was tainted or dishonest or any collusion occurred and now that some believed this, then my honest intentions of filing for the job no longer mattered, so I went and withdrew as a candidate."

Now the ballot is empty and legal observers say reform is needed.

"I don't know if there's a problem with the legal ethics, but it doesn't instill public confidence in the judiciary," said Karen Cole, a St. Paul attorney and election observer. "And public confidence is the only source of legitimacy for the courts. People are disappointed with this kind of maneuver."

The plan would install a "retention-election" system under which the governor would appoint judges for open seats, then voters would decide whether to retain them. They would be assisted in their decision by an independent commission that would publicly evaluate judges.

It would make incumbents more accountable, protect impartiality, better inform voters and keep increasingly ugly political campaigns and special interests out of the judicial process, Quie said.

"We've seen that the campaigns for judges across the country have been increasing in their divisiveness and expense," Quie said. "And then as we've worked, one of the things that everybody realized is that the most offensive thing that's happening now in Minnesota is not the danger of that kind of disruptive and biased campaigns. The greatest problem is that when people turn the ballot over and look at the judges, they haven't got a clue. And how can you run a democracy, which should give the voters the last chance, if you don't give them any information?"

Though the plan is opposed by district judges, his own Republican party and groups Quie supports, like abortion foes Minnesota Citizens Concerned for Life, he said he worries that judgeships will be vulnerable to special interests.

"It just boils down to this: If the people without power can have justice, the people with power will have justice," Quie said. "If the people with power fight [over] who can dominate, the people without power will not get justice."

"Judges should have the breathing room to make unpopular decisions when that's what the law requires," she said.

Even the nominating process now in place to get a new name on the Washington County ballot gives an advantage to a candidate who has the time and resources to gather the required 500 signatures on a petition by next week, Cole said. It might be better if the local bar association could find a qualified candidate, she said.

Richard Hasen, a professor specializing in election law at Loyola Law School in Los Angeles, said the Washington County case goes to the fundamental question of why judges are elected like other politicians when their jobs are constitutionally very different.

"The thing about judicial elections is, they're low-salient events -- people don't pay a lot of attention to them, so all kinds of odd things can happen," he said. "... Nothing prevented someone from filing against this judge [earlier], and even assuming that this was a plan between the judge and his longtime clerk, if you're going to hold elections for judges, then this kind of stuff is inevitable.

"That is, people running for elections engage in electoral strategy, and that's what this is, strategizing. Maybe it says that you shouldn't have judicial elections or maybe it says that you need to change the rules about giving notice before retiring. But if you're going to hold judicial elections, it's no different than an incumbent in a legislative race deciding at the last minute not to file."