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Invalidation by the courts of several clauses of Minnesota’s Code of Judicial Conduct may presage significant changes in the state’s judicial selection process. Whatever the outcome, it likely will influence who serves and how they decide cases. by David A. Schultz Imagine tuning
in to two political ads on your television where you hear the candidates
say: “A vote for my opponent puts a baby killer on the Supreme Court”
and “If elected to the Supreme Court, I promise to crack down on frivolous
lawsuits.” Do you think political ads like these cannot
happen in Minnesota, but instead are confined to Texas or Ohio where
they have high-financed, partisan, and media-driven campaigns? Well think again. The future of Minnesota judicial elections could
very well be headed in this direction.
As a result of two court decisions in Republican Party of Minnesota v. White — one by the United States
Supreme Court1 and one by the 8th Circuit Court of Appeals2 — the
2006 round of state judicial elections could include candidates seeking
party endorsements, soliciting contributions, and announcing positions. Exactly what the White opinions mean for the state and its court system, and how Minnesota
judicial selection might change, are matters for examination and debate. Judicial Selection Before White Two provisions of the state constitution
control judicial selection in Minnesota.
Article VI, section 7 of the Minnesota Constitution provides
for the election of judges and justices to six-year terms.
Conversely, section 8 provides for gubernatorial appointment
of judges and justices to fill out a remaining term when there is
a vacancy. Every since the first state constitution in 1858, judicial
elections have been the official way judges are supposed to be selected,
with appointment to fill vacancies the exception. Since 1912, state judicial races have been
designated as nonpartisan,3 and in 1974, Canon 5 of the Minnesota
Code of Judicial Conduct imposed additional restrictions on judicial
candidates. The Code prohibited judicial candidates from announcing their views on
disputed legal or political issues (the “announce” clause),4 affiliating
themselves with political parties (the “partisan activities” clause),5
or personally soliciting or accepting campaign contributions (the
“solicitation” clause).6 These
rules were meant to promote the integrity of judges and encourage
an independent judiciary. The belief was that judicial candidates who
announce their views on topics that may come before them later as
judges might be seen as biased or lacking impartiality.
Hence, judicial elections were to be nonpartisan affairs where
voters select candidates based on perceived judicial character and
integrity, and not the candidate’s political views, party affiliation,
or ability to raise and spend campaign money. Yet the Canon 5 rules have not necessarily
produced better judicial elections.
The reality of judicial selection in Minnesota is that the
state actually has a dual selection system, with gubernatorial appointment
more the norm than the exception. In 2003, 91 percent of the Minnesota judges
were persons initially appointed to the bench.
This included six of the seven then-sitting Supreme Court justices.7 In many cases sitting judges, inspired in part
by their dislike for campaigning, resign before their term expires
so that the governor can fill the vacancy.8 A second factor undercutting the effectiveness
of judicial elections is that most judicial races in the state are
uncontested. For example, in 2004, there were 23 judicial
races in Ramsey County (2nd Judicial District) with a total of 27
candidates. Of those 23 races,
19 of them (83%) were uncontested.
Similarly, in the 2nd District in 2002, there were 12 races,
involving 15 candidates, with 9 races (75%) uncontested.
For voters, judicial races come at the bottom of the ballot. Due to this placement and the lack of information
about the plethora of candidates, “voter fatigue” figures significantly
in judicial selection: 28 percent of voters do not select a judicial
candidate while 31 percent report they vote on the basis of gender
or ethnicity (Scandinavian last name).9 Overall, it would be hard to conclude that
judicial elections have been shining successes.
Given limits on the ability of candidates to challenge incumbents
or to raise the resources and support to run a successful campaign
for judge, some argued that the current Canon 5 rules make a mockery
of judicial elections, and also violate their constitutional rights.
One of those individuals was Gregory Wersal. Republican
Party Round One In 1996, Gregory Wersal ran for associate
justice of the Minnesota Supreme Court.
While campaigning he criticized several Minnesota Supreme Court
decisions on issues such as crime, welfare, and abortion.
A complaint against Wersal was filed with the Board of Lawyers
Professional Responsibility, charging that he violated the announce
clause of Canon 5. Even though the Board dismissed the complaint because
it thought the rule unconstitutional, Wersal abandoned his campaign
for fear of receiving other ethical complaints against him.
Again in 1998 he ran for the Supreme Court and this time sought
an advisory opinion from the Board to determine whether it would enforce
the announce clause. The Board declined to render an opinion, prompting
Wersal, joined by the Republican Party of Minnesota, to challenge
the announce clause in federal court as a violation of his 1st Amendment
free speech rights. The district
court upheld the announce clause10 and the decision was affirmed by
the 8th Circuit.11 The Supreme Court granted certiorari, reversing and remanding back
to the district court in a 5-4 decision.12 Writing for the majority, Justice Scalia
concurred with the 8th Circuit that the announce clause imposes a
content-based restriction on the exercise of 1st Amendment rights
that necessitates strict scrutiny.13 He rejected promoting impartiality as a constitutionally
compelling justification for the announce clause.14 Finally, the Court also stated that trying to
hold elections while limiting what can be discussed prevents candidates
from discussing what elections are about: issues and policy.15 Thus, the “announce” clause was found to violate
the 1st Amendment and the Court remanded the case to the lower courts. Republican Party Round Two The majority began by noting that the three
clauses of Canon 5 limit judicial candidate speech, demanding strict
scrutiny analysis.16 As with the Supreme Court opinion, the majority
here first sought to identify the compelling governmental interests
supporting Canon 5. They observed
that Minnesota continued to assert that it was the promotion of judicial
independence and impartiality that was compelling, because “a judge
must be independent of and [be] free from outside influences in order
to remain impartial and to be so perceived.”17
Accepting the rationale that protecting litigants from biased
judges (due to threats to independence or impartiality) was a compelling
interest, the majority asked if the partisan-activities and solicitation
clauses were narrowly tailored. The 8th Circuit stated that the partisan-activities
clause is barely tailored at all,18 observing that there is no evidence
that membership or affiliation with a specific party can cause a bias
that could not be remedied with the less restrictive recusal option.19 More importantly, the appellate court stated
that the Canon 5 partisan-activities clause is underinclusive in that
it assumes that only political parties and not other organizations,
such as the NRA or the NAACP, are a source of bias or threat to judicial independence.20
Canon 5 is also underinclusive in that it permits affiliating
with a party only up to the point when one becomes a judicial candidate,
and then such association is prohibited because it is corrupting.21 The en banc majority also ruled that the
solicitation clause is a content-based and viewpoint restriction on
speech because it prohibits judicial candidates from speaking to others
about a particular subject, i.e., contributing money to their campaign.22
As with the partisan-activities clause, the appellate court
found that the solicitation clause is not narrowly tailored in that
a mere signature on a fund-raising letter would not necessarily indicate
bias or an inability to be open-minded.23 As with the partisan-activities clause, specific
instances of bias could be addressed with recusal. Why Politicize the Courts? Why would anyone want to politicize the
courts and turn judicial races into partisan, issue-driven and money-dominated
events? The answer is similar to the one Willie Sutton
once gave when asked why he robbed banks — “Because that is where
the money is.” In Minnesota,
as in other states, the courts are no longer seen, in the words of
Alexander Hamilton, as the “least dangerous branch” of the government,
without either control over the sword or purse, and possessing neither
force nor will but merely judgment.24 Instead, state courts, including those in Minnesota,
are seen as major policy players. For example, the Minnesota Supreme Court
has found that a right to privacy protects a woman’s right to terminate
a pregnancy and to receive public funding for an abortion if on public
assistance.25 The Minnesota courts have also invalidated laws
proscribing consensual same-sex sodomy26 and a conceal-and-carry gun
law.27 Furthermore, as the recent legislative session
revealed, the state judiciary is a major player in the budget process,
with the authority to order spending for essential state functions.28 Overall, the Minnesota courts are major
political and policy players in the state.
Thus, for many there are clear incentives to affect who is
on the bench. Lessons from Other States Not all states pick their judges in the
same way. Thirty-nine states elect their judges. Fifteen states use a variation of the Missouri
plan where judges are initially appointed and then face a subsequent
retention election. An additional
11 states use other methods, such as gubernatorial appointment, to
select judges. Each of these selection processes produces different
results in terms of who serves and rulings.
For example, appointed judges are more likely to respond to
a wider variety of groups and interests than are elected ones.
Similarly, appointed judges seem more disposed to support individual
rights than elected ones.29 How
judges are selected may affect how they rule, with elected individuals
feeling less autonomy to innovate and step back from voters than appointed
ones. Second, for some, Ohio and Texas are examples
of what is wrong with contested, partisan, judicial races.
In Ohio, interest groups are heavily involved in partisan campaigns,
and some races have cost millions of dollars, with noncandidate independent
expenditures topping $8 million.30 But Texas is held out as in a class of its
own. Until the mid 1980s the Texas Supreme Court
was dominated by the Democratic Party.
But anger over some of its decisions led to multimillion-dollar
spending by the political parties and interest groups to change the
courts. The result? Heavily
partisan and costly races often with negative and attack ads more
typical of those found in legislative races.31 Studies suggest that the outcomes of these campaigns
altered the public perceptions and decisions of the Texas courts.32 Some fear that were partisan elections to
become the norm in Minnesota, the worst case scenario of Texas might
ensue. If judges could announce positions, they would
pander to special interests. If
judges could solicit contributions, they would shake down attorneys
who appear before them, or lawyers would be compelled to give. Finally,
there is the worry that judges might lose their judicial independence
as they become beholden to special interests and political parties
for financial support. Whether all this will happen in Minnesota as
a result of the White decision
is only a matter for speculation now.
Yet if the experiences from other states are any indication,
the Minnesota courts are poised to change. Where From Here? Minnesota is appealing the 8th Circuit opinion
to the Supreme Court in hopes of defending Canon 5.
Assuming certiorari
is denied or that the 8th Circuit opinion is affirmed, there are two
basic options for Minnesota regarding judicial selection: an elected
or an appointed judiciary. Fixing Judicial Elections Another option for Minnesota is to do nothing
and hope for the best. Maybe
Minnesotans will not tolerate candidates, parties, or interest groups
who would seek to politicize the courts.
Maybe Minnesota’s political culture and sensibility is different
from that in Texas. Yet the examples of Greg Wersal and the Republican
Party suggest that some are ready for more wide-open judicial elections,
and others will follow suit. Given the important role that the state Court
has had in the last few years in addressing issues already noted such
as abortion, gay rights, guns, and the state budget, it seems unlikely
that no one will want to move in a more partisan direction. Another possibility is that perhaps the
Minnesota State Bar Association (MSBA) should assume a more active
role in judicial elections. Perhaps
Minnesota’s lawyers need to do more public education, or maybe issue
suggested guidelines for judicial campaign behavior and then publicly
admonish candidates who violate them. Critics might claim this position is arrogant,
elitist, and bound to fail. It
is arrogant and elitist in the sense that it assumes that in a democracy
only lawyers know what is best in terms of who should be judges and
what issues should be discussed. It
also seems to assume that the people themselves cannot make good choices
and that it is the task of attorneys to educate the masses as to what
is really important and how to vote.
Finally, given the public reputation of lawyers in our culture,
will public condemnations of judicial candidates by the MSBA
be heard or carry any weight? If
anything, such pronouncements might backfire. What about public financing for judicial
candidates? Providing public funding for candidates might
address the “solicitation” concerns, but really would not deal with
either the “announce” or the “partisan-affiliation” concerns unless
one tied the voluntary acceptance of public money to accepting the
three clauses of Canon 5. Such a tie-in is constitutionally permissible.33
However, judicial candidates cannot constitutionally be compelled
to accept public financing and it is probable that those individuals
and parties most interested in more partisan races would be unlikely
to seek public financing if the price were adherence to new restrictions. Even if candidates did accept public financing,
as is the case presently with state constitutional and legislative
candidates, nothing would prevent political parties and interest groups
from making independent expenditures on their behalf.34
Thus far the courts have not supported bans or limits on independent
expenditures. This means Minnesota could have judicial races
with political funding and strategies no different from other campaigns
in the state. Perhaps the only viable option if the state
were to stay with judicial elections is exploring modification of
recusal rules. Both the United States Supreme Court and 8th
Circuit opinions suggest that the remedy for bias is recusal. Yet there are constitutional limits here.
For example, rules that mandated recusal if one announced a
position on a disputed legal issue that did come before the court,
or imposed mandatory recusal based upon general solicitation or partisan
affiliation, would no doubt be challenged as no more than subterfuge
to reinstate the Canon 5 clauses.
They would thus run into the same 1st Amendment problems as
before. Thus, short of dissuading a candidate’s showing
of real bias or a conflict of interest, enhancing recusal rules has
its limits. In sum, there are clear limits regarding
what can be done to modify or mollify the impact of Republican
Party if the state continues to elect judges. An Appointed Judiciary? Yet, a decision to turn to an appointed
judiciary should not be premised upon the simple notion that elections
are bad in general and worse for the courts because the people can
be tricked. Instead, as the
8th Circuit stated, one needs to defend an appointed judiciary less
in terms of how it avoids the ruling in Republican Party v. White and more in terms of how an appointed judiciary
best promotes their role in a democracy as a defender of minority
rights, often despite what majoritarian preferences are. As noted earlier, elected judges are less
likely to protect individual rights than are those appointed by the
governor. One reason why the Minnesota courts have been
relatively strong defenders of individual rights is that the state
has a de facto appointed judiciary with over
90 percent of the judges reaching the bench initially by appointment. Given this figure, and given how poorly the
current election system operates in terms of lack of candidate information
and voter fatigue, a de jure
move to an appointed court system would not be a major leap. Yet the question is, how to appoint? Not all appointment processes are good or
the same. For example, Minnesota could adopt a federal
model with gubernatorial appointment, state Senate confirmation, and
either lifetime or long-term appointment.
However, not everyone is convinced that such a model ensures
accountability, or that the confirmation process produces sufficient
information that allows for proper scrutiny.
Another problem with this model is that it may not produce
a diverse judicial selection pool, instead leaving it open to governors
to select friends. Finally, such a process does not guarantee that
the appointment and confirmation process will be any less political
than elections, as evidenced by recent federal appointments to the
federal bench. One remedy might be to require the governor
to select judges from a list submitted by a judicial selection committee. If governors are to select candidates nominated
by this committee, then they should not also be allowed to select
who is on this committee. The
concern is to make sure that those who pick the judges are accountable
and under some control. Another option for judicial selection is
some variation of the Missouri Plan. Here, judges are initially appointed
to the bench and then, after a period of one or two years, they must
face the voters in an uncontested retention election.
The virtues of a Missouri plan reside in trying to combine
the best of elections and appointment.
This option also faces two defects.
First, what information will voters have to base their decisions
on in the retention election? Second, if one fears judges affiliating with
parties, announcing their views, or soliciting contributions, the
retention election will not eliminate that.
Special interests wishing to affect who is on the bench will
be able to spend money in retention races to support or oppose candidates,
perhaps forcing judges into doing all that Canon 5 sought to prevent. Conclusion Republican
Party of Minnesota v. White portends to be a watershed decision
in Minnesota that will affect how its state judges are selected.
Exactly what its impact will be, and whether it prompts a move
towards an appointed judiciary, are open questions at this time. However, it is not so clear that the current
system of selecting judges was working, and there is fear that the
future for Minnesota resides in the experiences of states such as
Texas. Whatever the policy responses to this decision
are, the state needs to be cognizant of their consequences because
they too could have a big impact on who serves as judges and how they
decide cases. c Notes 2
416 F.3d 738 (8th Cir. 2005). 3
See also Minn. Stat. §204B.06 Subd. 6 (2004). 4
Minn.Code of Judicial Conduct,
Canon 5(A)(3)(d)(i) (2000). 5
Minn. Code of Judicial Conduct, Canon
5(B) (1) (2000). 6
Minn. Code of Judicial Conduct, Canon
5(B)(1)(a) (2000). 7
Pam Louwagie, “Voters in judicial elections just go through the motions,”
Star Tribune at A1 (08/11/03). 8
Id. 9
Id. 10 Republican Party of Minnesota v. Kelly, 63 F.Supp.2d 967 (D.Minn.1999). 11
Republican Party of Minn. v. Kelly,
247 F.3d 854 (2001). 12
536 U.S. 765 (2002). 13
536 U.S. at 774. 14
536 U.S. at 776-780. 15
Id. at 788. 16
416 F.3d at 748-9. 17
416 F.3d at 752. 18
416 F.3d at 755-6. 19
416 F.3d at 755. 20
416 F. 3d at 759, 761-2. 21
416 F.3d at 758. 22
416 F. 3d at 763-4. 23
Id. at 766. 24
Alexander Hamilton, Federalist no. 78, 504 (New York: Modern Library, 1937). 25
Women of the State of Minnesota v. Gomez,
542 N.W. 2d at 30-1(1995). 26
Doe v. Ventura, 2001 WL
543734, 8-9 (Minn. 2001). 27
Unity Church of St Paul v. State (694
N.W.2d 585, Minn. App. 2005). 28
In re Temporary Funding of Core Functions of the Executive Branch
of the State of Minnesota, No. C0-05-5928 (06/23/05). 29
Daniel R. Pinello, The Impact of Judicial-Selection Method on
State-Supreme-Court Policy, 132 (Westport, CT: Greenwood Press, 1995). 30
Id. at 124. 31
Kyle Cheek and Anthony Champagne, Judicial Politics in Texas:
Partisanship, Money, and Politics in State Courts,
(New York: Peter Lang Publishing, Inc., 2005), at 5-6. 32
Id. at 37-40, 55-59. 33
Buckley v. Valeo, 424 U.S. 1 (1976). 34
See David Schultz, Money, Politics, and Campaign
Finance Reform Law in the States, (Durham,
NC: Carolina Academic Press, 2002), for a discussion and analysis
of how groups raise and spend money to influence campaigns and elections
in Minnesota. 35
536 U.S. at 788. 36
536 U.S. at 792. Judicial Selection Update: The Minnesota
Board on Judicial Standards has filed a petition for certiorari in
Republican Party v. White. DAVID SCHULTZ is professor in the Hamline University Graduate School of Management. He also teaches at the Hamline, University of Minnesota, and University of St. Thomas law schools. |
