Vol. 64, No. 7 | August 2007
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The State of the Judiciary
By The Hon. Russell A. Anderson

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:

  • Improving access to justice;
  • Improving timeliness;
  • Ensuring integrity and accountability in our record keeping;
  • Ensuring excellence — by being accurate, fair, and clearly communicating our decisions;
  • Ensuring fairness and equity;
  • And finally, providing a high-quality workplace for judicial officers, court personnel, and jurors so they can excel at the important work they have been called to do.

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.

[At this point in Chief Justice Anderson’s remarks a selection of televised judicial campaign ads from around the United States, captioned “Justice at Stake,” was shown.  Ed.]

In 2006, TV ads like these ran in all but one state with contested Supreme Court elections, compared to about 20 percent of comparable states six years earlier.

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.