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The State of the Judiciary I
am honored to be here to present the state of the judiciary to you
for judges and lawyers are partners in the delivery of justice in
Minnesota. I saw Steve Rufer from Fergus Falls this morning
and was reminded of this story about his father, Gerald Rufer, a legendary
attorney in Minnesota. Gerald
was trying a case before me in Mahnomen County and his witness was
on the stand. The witness decided that he would tell the jury
his version of events without a question.
He began and opposing counsel immediately objected stating
“there’s no question before the court.”
I sustained the objection.
Gerald rose and asked the witness, as only Gerald could, “Was
there something that you wanted to say?” I
have something that I would like to say to you this morning. I
want to talk to you today about two issues; how to maintain and enhance
the accountability of our judiciary to the people of Minnesota, and
how to preserve our fair and impartial judicial system. When I tell you that Minnesotans are pleased with their
judiciary, it is not just wishful thinking on my part. Judicial Accountability Last fall, the Minnesota judiciary arranged for a professionally
designed and administered public opinion survey, with lengthy interviews
of 800 Minnesota households. The typical respondent took 23 minutes to complete
the survey, so you can see this was not a superficial effort. The results were gratifying. Eighty percent of the respondents reported confidence
in Minnesota’s courts. Survey
participants rated the state courts just below the medical profession
and public schools — and far above other public institutions. Our courts also got high marks for the responsiveness
and friendliness of court staff. A very high percentage of residents, between 80 percent
and 94 percent, said they consider Minnesota judges qualified, fair,
dedicated to facts and law, “honest and trustworthy,” and “impartial.”
This is the second time we have sought public opinion
about our court system, the first coming in 1999. Compared to our 1999 survey, we saw significant
increases in the number of respondents who said our judges treat people
with respect, are fair in deciding cases, and give enough attention
to each case. In fact, Minnesotans gave their judges far higher marks
than did people in a recent national study. Eighty-one percent of those surveyed gave Minnesota
judges a positive rating, compared to only 34 percent in a national
poll. Our survey also challenged us, however. Minnesotans said they believe it takes too long
for cases to be resolved, and that it costs too much. About half of the respondents said that the
courts favor the rich and white people over people of color, the poor
and non-English speakers, a perception we are committed to changing.
But overall, we were very encouraged by the results
of the citizen survey. And this spring, we learned that a national Chamber
of Commerce survey rated Minnesota courts second among all 50 states
with regard to the fairness of its litigation environment, and ranked
Minnesota judges third in the nation for impartiality, competence,
and fairness. These results are not just happenstance. We have been working hard the past 20 years,
restructuring our court governance and funding systems, reforming
court practices, and professionalizing court staff and judicial officers.
We have worked to make our court system more accessible
to people without means, or who speak little English. And we have been engaged in a major effort to improve
the way we handle cases involving abused and neglected children, an
initiative begun by my predecessor, Kathleen Blatz, who urged us to
see each child protection case “through the eyes of the child.” Two years ago, as part of our efforts to bring the
courts under one unified system, we created the Judicial Council as
the new administrative policy-making body for the courts. The Council, which I chair, consists of 15 district
court judges, four appellate judges and six administrators. It is broadly representative of our branch and
committed to shared decision-making. The Judicial Council has established statewide performance
standards that we will use to monitor our progress toward ensuring
greater accountability. These include:
In
the next few months, we will complete work on a new statewide case
records system that will be searchable from the internet. And we will soon be introducing e-filing and
e-charging of cases. We are grateful for your participation in our efforts.
This work could not have been completed without your help,
encouragement and support. As a result of all our hard work focusing on performance
and accountability, Minnesota’s court system has developed a national
reputation for professionalism, efficiency, innovation, and fairness.
Threatened Impartiality But there are storm clouds on the horizon. Our hard-won public trust and confidence is
threatened by the prospect of partisan, expensive, and harshly negative
judicial campaigns. Some may wonder if we are making a bigger deal out
of this than it deserves. After
all, Minnesota has had a century-old tradition of nonpartisan judicial
elections and a nonpartisan judiciary.
Until now, big money and negative campaigns have not entered
our system of judicial selection.
For the most part, we have been able to stave off the attack
ads and multimillion-dollar campaigns that plague many states.
But this is changing. Our neighbor to the east, Wisconsin, recently had a
record-breaking Supreme Court campaign, with approximately $6 million
spent, two-thirds of it by special interest groups. The State of Washington saw spending for Supreme Court
campaigns top $5 million, much of it spent to produce and air negative
TV ads. By the way, you should know that before 2006, Washington
elections were low-budget, low-key affairs, similar to Minnesota judicial
elections. Idaho Supreme Court Justice and former Chief Justice
Linda Trout, the state’s first woman justice, recently announced that
she will step down rather than endure what she fears will be an expensive
and divisive election. In her words, “Judicial elections have turned into
bitter, nasty fights, which I don’t think is seemly for the judiciary.” But it was Indiana Chief Justice Randall Shepard who
put his finger on why we should all be concerned about this trend
coming to Minnesota. “The more money that’s poured into judicial elections,”
he said, “the more likely it is that the courts will become places
that react to special interest groups, rather than to the concept
of impartial justice.” Ohio Chief Justice Thomas Moyer focused on another
consequence of highly contested judicial elections when he said recently
that “There’s no question it discourages many highly qualified lawyers
who would make excellent judges.”
States that have been dealing with this problem for
awhile have learned that, try as they might, they have not been able
to turn back the clock. So what does a judicial election campaign in this new
environment look like? We can’t
know because Minnesota is one of only two states that has not had
television ads in statewide judicial races.
Here’s a preview of what is coming. Last year, of the ten states that had privately financed
contested Supreme Court campaigns, half set fundraising records. In Alabama, Supreme Court candidates raised
$13.4 million, and along with money spent by special interest groups,
bombarded state voters with 17,000 ads — mostly negative television
ads that painted the targeted candidate as corrupt, unqualified, or
untrustworthy. This should cause us great concern. We judges know that we are not perfect, and
we know that our decisions are not always popular. But, mostly, because we have been selecting
people for the bench over the past 30 years through our merit-selection
process, we know we have a highly qualified judiciary.
We have a fair and impartial judiciary.
In a post-White world,
we have a lot to lose. Make no mistake — unless we act — the ads, the money,
and the partisanship we are likely to see threaten the public’s trust
and confidence in all of our courts.
A recent national poll revealed 81 percent of Americans believe
judges are influenced by campaign contributions.
And one in four judges agrees with them! In a state, which has highly partisan, contested elections,
half of the judges — I repeat, half of the judges — believe that campaign
contributions affect court decisions.
How can the public trust a court system when even the judges
think contributions affect decisions? I’m reminded of the story of a judge in another jurisdiction
who at the beginning of a trial noticed that the plaintiff had donated
$25,000 to his last campaign, and the defendant $50,000. He called counsel into his chambers and announced
“I’m going to return $25,000 of the $50,000 to the defendant and decide
this case on the merits.” Minnesotans told us in our survey that there is a perception
that the courts favor white people and the wealthy. We, in Minnesota, must work diligently to avoid
any suggestion that the way to win your case in court is by contributing
to a judge’s campaign. But is now the right time for us in Minnesota to address
this issue? After all, the
cost of judicial campaigns in our state is one of the lowest in the
country. It has been said that “The time to repair the roof
is when the sun is shining.” Well,
the clouds are gathering and the sun is not going to shine on us much
longer. Some argue that it will not happen here. But are we willing to take that risk where the
potential consequences are so catastrophic? Preserving
Our Strengths Under
the leadership of former Governor Al Quie and the Citizens Commission
for the Preservation of an Impartial Judiciary, the debate about how
best to preserve judicial impartiality has already begun. I
want to take a moment to pay tribute to the commission and each of
its members for their work. This
group of 30, only five of whom were judges, spent months examining
judicial selection in Minnesota and around the country to determine
what we can do to minimize the negative forces rampant in judicial
elections elsewhere. The
majority of the commission recommended a new four-step process to
choose judges. First, a merit-based
selection process similar to what is used now for judicial vacancies.
Second,
gubernatorial appointment. Under
the system the commission proposed, a merit-selection committee would
forward three well-qualified candidates for judge to the governor. The governor would have to appoint a nominee
of the selection committee. The
third recommendation calls for creation of a comprehensive performance-evaluation
system for all judges. A separate
commission would evaluate judges mid-term — to help them continue
to improve their skills — and near the end of their terms — to provide
better information to the public about judges facing election. The
final recommendation calls for the renewal of judges’ terms through
retention elections similar to those used in many states.
This allows Minnesotans to vote “yes” or “no” for a judge when
his or her term is up for renewal.
A “no” vote would mean that a vacancy occurs, and the judicial
selection commission would begin its work again. The
Quie Commission Report also included a minority report that called
for an appointed commission, rather than the voters, to make the decision
on whether to retain a judge. I
am not here today to advocate for a particular solution. Instead, I want to remind each of us to remember
the end goal as we take this journey together. The
bench must not be for sale. The
courts are not intended to be popular, or representative of majority
opinions, but rather to protect the rule of law, including the protection
of individual rights as guaranteed by our Constitution.
So how do we protect the rule of law and judicial impartiality? We
have already taken the first steps by recognizing that there is a
problem and initiating this discussion. No matter what constitutional solution is proposed,
it will need the blessing of the Minnesota Legislature and, ultimately,
the citizens. I expect a robust
debate of the pros and cons before a proposal is put in front of the
voters. As members of the bar, we have a special responsibility
to preserve our high-quality judicial system. Lawyers are called to seek improvement of the
law and the administration of justice.
We are called to be mindful of its failings, and to devote
time and civic influence towards improving our justice system. If, as a state bench and bar, we do not confront this
issue, help educate the public about this threat, and actively address
it, we are not being true to our mission.
In my view, if we do not act, we will be shirking our responsibility
as leaders. People around the country are looking to Minnesota
right now. Minnesotans are
also calling us to step forward. They
expect us to continue our judiciary’s tradition of innovation, efficiency,
effectiveness, and above all, impartiality and fairness. When we approach the Legislature with a proposal for
constitutional and statutory changes, our journey will have just begun. A divided legal community will ensure only one
thing — failure. This journey
will only be successful if we take it together — united. So how do we come together and resolve differences
in the solution we choose to support?
I suggest we focus on three guiding principles. 1) Will it promote a fair and impartial judiciary? Minnesotans expect a fair and impartial judiciary.
Like voters across the country, they recognize that judicial
candidates making promises, asking for campaign money, and attacking
each other undermines the claim that the court system treats all Minnesotans
fairly and protects the rule of law. As
Michael Mullane, an Arkansas law professor, points out, “… the rule
of law …, is probably the single greatest achievement of our society. It is our bulwark against both mob rule and
the overwhelming power of the modern state.
It is the rule of law that governs us, but protects each one
of us when we stand alone against those who disagree with us, or fear
us, or do not like us because we are different.
It is the strongbox that keeps all our other values safe.” Professor
Mullane is right. Protecting
the rule of law and abiding by the Constitution are the foundations
of our justice system. 2) Will the solution provide meaningful accountability? Citizens are concerned that judges be accountable.
They expect court decisions to be timely, well-reasoned, and
issued only after judges have had an opportunity to hear all parties
in the case. Minnesotans
do not want judges to be beholden to the agendas of special interest
groups. Instead, they expect
us to be accountable to the Constitution and the law.
But how can that be assured? The
Quie Commission, both majority and minority reports, strongly endorsed
judicial performance evaluation as a key component to assure strong
accountability and an appropriate trade-off in eliminating contested
elections. 3) Will the solution maintain the public’s trust
and confidence in the judiciary? Our nation’s
founders created the judiciary as a check on the executive and legislative
branches of government. The
other branches have the power of the sword and the purse. The judiciary’s power comes only from the trust
of the people. The rule of
law is sacrificed if the public does not have confidence in the fairness
of judicial decisions. As
we focus on these principles, let’s be careful not to become so enamored
with the debate that we forget that, ultimately, it is the people
who must approve the constitutional amendment needed to change our
system of selecting judges. Practical
considerations must therefore play a role in determining the final
proposal. Whatever
the proposed solution, it must be one which the public supports as
best providing the appropriate balance between judicial impartiality
and accountability. So
as we continue our discussions, we must consider the options with
an open mind. Let us debate
them honestly, fully, and with collegiality.
And then let us come together and speak with one voice. Together,
we have built one of the best court systems in the world here in Minnesota,
one of the most efficient, most professional, and most innovative. Minnesota has a lot to lose. Let it not be said that it was lost on our watch. Thank
you. RUSSELL A. ANDERSON is Chief Justice of the Minnesota Supreme Court. He delivered these remarks before the annual meeting of the Minnesota State Bar Association, June 29, 2007, at River Centre in St. Paul. |
