Vol. 64, No. 7 | August 2007
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Fixing the Roof While the Sun Shines
By Brian Melendez

“The time to repair the roof is when the sun is shining.”
Chief Justice R. Anderson,
State of the Judiciary Address,
29 June 2007


The MSBA Convention heard those words from Chief Justice Anderson as he devoted his annual address to the issue of judicial selection. Just a few hours later, the MSBA Assembly sorted out the various proposals for reform that have emerged in response to the White decisions,1 and recommended that Minnesota adopt an appointive judiciary with merit retention as the best way of preserving judicial independence in the post-White era.

The Association traveled a long and thoughtful road in reaching that recommendation. But an even longer road lies ahead, since any change will take a constitutional amendment. I am writing to set out the view that the Association has adopted, starting in this column with the path that we traveled in reaching that view, and wrapping up in next month’s column with the stand that we have taken and the path that lies ahead.

Of course, any story about judicial selection can begin as long ago as Minnesota became a territory, when the Organic Act of 1849 established territorial courts with judges appointed in the same manner as federal judges.2 Minnesotans have seen numerous studies, and proposals for change, in the 158 years since — including many studies by the Minnesota State Bar Association, mostly recently in efforts led by Mark Gehan and George Soule. But for present purposes, let’s start with the White decisions and the efforts that they kindled.

The Quie Commission

The Citizens Commission for the Preservation of an Impartial Judiciary assembled in early 2006 under the leadership of former Governor Al Quie, who had as governor pioneered merit-based judicial appointments. The commission included the Association’s then-officers, as well as the cochairs of the Judicial Elections Committee, two trial judges, and three appellate judges. But the 30 commissioners came not only from the bar and the bench, but from academia, business, organized labor, and politics. They were culturally, geographically, and ideologically diverse, as was evident throughout the commission’s proceedings. And they came to the table with few preconceived notions, indeed with no consensus about whether any change was necessary at all.

The Quie Commission held half-day meetings monthly, sometimes more often, for 15 months. It heard from jurists, scholars, legislators, and advocates, including the attorneys who litigated the White cases. It held public hearings around the state, in Brainerd, Mankato, and St. Paul, where about a hundred citizens testified. The commission sat for more than 60 hours, during most of which it was merely listening and studying, not framing proposals. A frequent question throughout those deliberations was whether the system was broken, and whether any change was necessary at all.

By late 2005, the Quie Commission was wrapping up its listening and studying, and began framing proposed reforms. The commissioners were divided in their support of several such proposals, including the “Missouri Plan” of retention elections, merit retention by a performance-review commission, lifetime appointments, legislative confirmation, and others (including some proposals that treated trial judges and appellate judges differently). But one thing was starkly clear: after months of study, not a single commissioner favored the status quo. Every commissioner in this diverse and opinionated bunch saw a train wreck ahead if nothing changed.

The commissioners’ support eventually coalesced around two proposals: the majority report, modeled after the Missouri Plan; and a minority report, which supported an appointive system based on merit selection, with merit retention by a performance-review commission.3 The Quie Commission issued its report, and dissolved, in March 2007.

The MSBA’s Process

The Quie report was referred to the MSBA Judicial Elections Committee, which had been studying the issue for years and had closely followed the commission’s work. (The committee’s cochairs, Steve Besser and Mary Vasaly, had themselves served as commissioners.) Then-President Patrick J. Kelly wrote to all Association members in April 2007, forwarding the Quie report, and inviting input about the important issue of judicial selection.

Dozens of members responded, many at length. The Judicial Elections Committee considered their input in lengthy discussions at its May and June meetings and recommended, by a vote of nine to two, that the Association adopt the Quie minority view in favor of an appointive judiciary, over the Missouri Plan that the Quie majority had favored. The recommendation went before the MSBA Assembly at the June convention.

Next month, I’ll write about the stand that the Bar Association has taken, and how we will advance that stand in the bar year ahead.

1 Republican Party v. White, 536 U.S. 765 (2002); Republican Party v. White, 416 F.3d 738 (8th Cir. 2005) (en banc), cert denied sub nom. Dimick v. Republican Party, ___ U.S. ___, 126 S. Ct. 1155 (2006).

2 An Act to Establish the Territorial Government of Minnesota, §11 (Mar. 3, 1849).

3 These two proposals split the commissioners almost evenly: 14 commissioners favored a retention system, while 11 favored an appointive process.

BRIAN MELENDEZ is president of the Minnesota State Bar Association and a partner in the law firm of Faegre & Benson LLP. He received his undergraduate and law degrees cum laude, as well as a master’s degree in theology, from Harvard University. He is active in numerous professional, civic, and alumni organizations both locally and nationally.