Fixing the Roof While the Sun Shines - II
By Brian Melendez
Association has recommended that Minnesota adopt an appointive judiciary
as the best way of preserving judicial independence in the post-White
era. Last month, I wrote about the path that the Association traveled
in reaching that view. This month, I write about the stand that the
Association has taken, and the path that lies ahead.
Merit Selection, Merit Retention
In formulating the Association’s stand, the Assembly
heard not only the Judicial Elections Committee’s report, but also
from advocates for the Missouri Plan of retention elections, as well
as defenders of the status quo (including several judges) who see
no need for change. After two hours (!) of debate, the Assembly decisively
favored an appointive judiciary, with 33 votes for an appointive system
with merit retention, and 31 votes split among the other alternatives.
The Assembly ultimately resolved that the “Association supports and
prefers” the appointive model, but “also finds acceptable, and does
not oppose” the Missouri Plan.
Several key features define the appointive system that
the Association prefers:
A merit-selection commission nominates qualified citizens for judgeships.
The governor appoints judges from qualified citizens that the commission
nominates (unlike the federal system, in which the president can
nominate anyone that he or she wants). The governor cannot appoint
a judge that the commission has not nominated (unlike the current
state system, in which the governor can bypass the commission’s
recommendations), but the governor may request up to three additional
nominees for a vacancy.
The Legislature is not involved (unlike the federal system, which
requires senatorial confirmation).
Judges serve a three- to four-year initial term (not unlike the
current state system, in which an appointed judge must stand for
election between one and three years after appointment; but unlike
the federal system, in which the judge holds office “during good
A judicial-evaluation commission can reappoint a judge for a nine-year
term. A reappointed judge can be reappointed again. The governor
and Legislature are not involved in reappointment.
Assembly also outlined the features that a performance-evaluation
The commission must focus strictly on public and professional considerations
without regard to partisan or other political concerns.
It must not second-guess or otherwise evaluate the correctness of
a judge’s rulings, which is the proper province of appellate review.
But the commission may take into account a judge’s abuse of discretion
or improper conduct that an appellate court or a disciplinary body
It will evaluate each judge eligible for reappointment according
to criteria that the commission develops and publishes, and such
other criteria as may be established by law. These criteria should
include factors like the ones that the merit-selection commission
now considers: “integrity, maturity, health if job related, judicial
temperament, diligence, legal knowledge, ability and experience,
and community service.”
It may gather information from lawyers who practice before a judge
being evaluated, from litigants over whose cases the judge has presided,
from direct observation, by public hearings, and in any other appropriate
way. The judge being evaluated should have the chance to review
and respond to any such information that the commission considers.
It should be subject to the open-meeting law. Any information that
the commission receives or considers should be a matter of public
It should consist of members chosen in a diverse manner, by multiple
appointing authorities that check and balance each other (such as
the executive and legislative branches, the bench, and the bar),
so that no single appointing authority controls a majority or nearly
a majority of the commissioners.
It should include lawyers and judges along with other citizens,
so that the commission as a whole more fully appreciates the judicial
office whose tenants it evaluates.
This year, the Quie Commission, the Minnesota State
Bar Association, the Minnesota District Judges Association, and other
interested civic organizations are weighing in on judicial selection.
Next year, the debate moves to the Legislature, which alone can propose
the constitutional amendment that significant reform of any kind will
require. The Association will be meeting with legislators about this
issue in the coming months, as will other interested groups and individuals.
There are at least two proposed reforms that have already
garnered significant support: the appointive merit-retention system
that the Association supports, and the Missouri Plan of retention
elections that the Quie Commission recommended. Other proposals may
emerge. And while we would-be reformers can focus on which system
is better than another, such an approach will only divide us and stymie
change. We will be far more effective if we start with the points
that we agree on, and focus instead on making the case for change,
before turning to what particular change is best.
Chief Justice Anderson, commenting on the task before us, perhaps said it best:
“A divided legal community will ensure only one thing — failure. This
journey will only be successful if we take it together — united.”
The retention-election system also called for a performance-evaluation
commission, whose evaluation of a judge as “qualified” or “unqualified”
would go on the ballot when the judge faces a retention election.
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.