Official Publication of the Minnesota State Bar Association


Vol. 62, No. 10 | November 2005
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Judicial Selection in Minnesota:
Options After Republican Party v. White

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

Closely following Justice Scalia’s opinion in the Supreme Court’s decision, an en banc opinion of the 8th Circuit on remand declared the announce, partisan-activities, and solicitation clauses of Canon 5 unconstitutional on 1st Amendment grounds.

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

What lessons can Minnesota learn from other states when it comes to judicial selection? First, judicial selection methods matter and, second, the experience of states with partisan elections has not necessarily been good.

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
Minnesota might respond to the Republican Party decision by sticking with an elected judiciary, seeing the decision as good.  Perhaps partisan judicial elections might not emerge or maybe they would bring new and healthy light to the selection of judges. Armed with more specific information about candidates, their positions and party affiliation, voters might be energized by competitive, issue-driven judicial elections. Heightened interest in these races might reverse the voter fatigue phenomenon in Minnesota. The Republican Party decision might encourage a greater diversity of candidates to run for office, highlight the important policy and political role the judiciary has in the state, and bring needed accountability to the courts. In this light, the Republican Party decision could be seen as a healthy and important injection of democracy.

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?
If White is not seen as good, perhaps the time is ripe to consider moving towards an appointed judiciary.  Justice O’Connor, concurring in the Supreme Court opinion, noted that the “very practice of electing judges undermines judicial impartiality”35 and that “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.”36 

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
1 536 U.S. 765 (2002).

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.
See page 10 of the November issue of Bench & Bar.


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.