Bench & Bar of Minnesota

Fixing the Roof While the Sun Shines - II
By Brian Melendez

The 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 behavior”).
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.

The Assembly also outlined the features that a performance-evaluation commission needs:1

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 identifies.
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 record.
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.

The Path Ahead

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.”

Notes
1 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.

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.