Minnesota State Bar Association

Judicial Elections Committee
Report and Recommendations to the Board of Governors
December 5, 2003

A. Background

The Judicial Elections Committee was established by then MSBA President Jon Duckstad after the US Supreme Court issued its June 2002 decision in Republican Party of Minnesota v. White 122 S.Ct. 2528 (2002), invalidating the provision in the Minnesota Code of Judicial Conduct prohibiting judicial candidates from announcing their views on disputed legal or political issues.  Former MSBA President Mark Gehan agreed to serve as chair of the committee. The charge to the committee included the following:

To review the report of the 1997 MSBA Judicial Elections Task Force; review ABA recommendations on judicial elections including ABA material on rating judicial candidates and bar associations serving as independent reviewers of candidates’ conduct in judicial campaigns; review the RPM v. White opinion; evaluate the MSBA plebiscite process; consider a program of public education on judicial elections; and develop a report on judicial elections in Minnesota including any recommendations for change for submission to the MSBA Board of Governors and/or House of Delegates.

The committee, originally composed entirely of MSBA members, met twice in early 2003.  At these meetings the committee agreed to broaden its membership to include representatives from citizens groups and the Minnesota legislature, and to adjourn until after the end of the 2003 legislative session in order to facilitate participation by the legislative members of the committee.  The committee also agreed that in addition to reporting to the MSBA Board of Governors, it would submit its report to the legislature.

When it reconvened in the summer of 2003 the committee divided into three subcommittees. One, chaired by former Minnesota Supreme Court Justice Edward Stringer, was charged with recommending to the committee a “model system” for judicial appointment and retention, to be considered without regard to implementation of the system under current state law.  The second subcommittee, chaired by district court Judge Jon Stafsholt, studied possible statutory or regulatory changes to the current judicial selection system in Minnesota, and the third subcommittee, chaired by Steve Besser, a lawyer in private practice in Litchfield, focused on the appropriate bar response in the post-White environment. The subcommittees each produced reports that were acted on by the entire committee, and which form the basis for this report.  The subcommittee reports, as well as minutes of committee meetings and the resource materials that were collected by the committee, are available on the committee web site.

 

From the beginning, the committee was unanimous in its conviction that the judiciary in Minnesota possesses a well-deserved national reputation for competence, impartiality and independence, and that the primary goal of the committee would be to develop recommendations designed to preserve a well qualified and well respected judiciary in the state.

B. Proposal for a Model System

The committee agreed that there is no ideal system for the selection of judges.  The committee also agreed that the Supreme Court decision in White could potentially have a profoundly negative effect on Minnesota judicial elections. The committee believes that a well designed appointment system that does not include judicial elections possesses many features conducive to preservation of an independent judiciary.  The committee has identified what it believes are the primary components of such a system.  The committee is not asking the Board of Governors to work towards implementation of these recommendations in the near future; the committee’s report in this area is advisory.

The committee recognizes that adoption of a purely appointive system of judicial selection in Minnesota would require amendment of the state constitution and should not be undertaken lightly.  In the event, however, that there is evidence that the electoral system in Minnesota has begun to function in a way that effectively undermines the independence and impartiality of the judiciary, the committee believes that the MSBA should consider implementing the recommendations contained in this section of the report.

The model system for judicial selection would contain these features:


C. Statutory and Regulatory Changes to the Current System

The committee asks that the recommendations in this section of the report be adopted by the Board of Governors and implemented by the Association.

1. Minn.Stat. 490.121 should be amended to permit judges to serve out their term of office regardless of reaching the current mandatory retirement age of 70. 

Implementation of this recommendation would require that Subd. 12 of the statute read:  “Mandatory retirement date means the last day of the term of office in which a judge reaches the age of 70 years.”  This recommendation would permit a judge who is, for example, elected or re-elected at age 69 to serve until his or her term ends at age 75.  It would remove a potential election issue for a judge or judicial candidate in his or her late 60s.   It would also provide an opportunity for judges who wish to serve longer than age 70 to do so, thereby keeping experienced jurists on the bench, and it would give lawyers who choose to become judges late in their careers the opportunity to serve.

2. Court of Appeals and Supreme Court judges should be included in the merit selection process.

Implementation of this recommendation would involve adding these courts under Minn. Stat. 480B.01.  The Merit Selection Commission, consisting of seven members appointed by the Governor and two members appointed by the Supreme Court, would then recommend names of judicial candidates to the Governor for appointment to the Court of Appeals and Supreme Court.  The Governor would not be statutorily required to appoint a nominee of the Commission.   The rationale for including appellate judges in the merit selection process would be the same as for district judges: to reduce political considerations in the appointment process and to help create a more competent and independent judiciary. 

3. The Minnesota Code of Judicial Conduct should be amended to require disqualification of a judge who makes a statement during a judicial campaign that raises questions about the judge’s impartiality, and to eliminate the provision found to be unconstitutional in RPM v. White.  

Implementation of this recommendation would require that Canons 3 and 5 and the corresponding Comments of the Minnesota Code of Judicial Conduct be amended as follows:

Additions underlined; deletions struck through

CANON 3

A Judge Should Perform the Duties of the Office Impartially and Diligently

  1.  Disqualification.

    (1)        A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

(e)               the judge, while a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to

(i)                  an issue in the proceeding; or

(ii)                the controversy in the proceeding.

CANON 5

A Judge or Judicial Candidate Shall Refrain From Political Activity Inappropriate to Judicial Office

A.   All Judges and Candidates

(3)               A candidate for a judicial office, including an incumbent judge:

(a)               shall maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary, and shall encourage family members to adhere to the same standards of political conduct in support of the candidate as apply to candidate;

(d)               shall not:

(i)                  with respect to cases, controversies, or issues that are likely to come before the court, make pledges, or promises or commitments of conduct in office other than that are inconsistent with the faithful and impartial performance of the adjudicative duties of the office; announce his or her views on disputed legal or political issues; or knowingly misrepresent his or her identity, qualifications, present position or other fact, or those of an opponent; and

(ii)                by words or conduct manifest bias or prejudice inappropriate to judicial office.

COMMENTS—CANON 3

. . .

Terminology: “Impartiality” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.


COMMENTS—CANON 5

. . .

Terminology: “Impartiality” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.

Section 5A(3)(d).  Section 5A(3)(d) prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court.  As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of his or her personal views.  See also Section 3A(8), the general rule on public comment by judges.  Section 5A(3)(d) does not prohibit a candidate from making pledges or promises respecting improvements in court administration.  Nor does this Section prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties. 

These changes are based on proposed changes to the ABA model canons, but unlike the ABA proposals, limit statements strictly to the campaign period between filing for office and the election.

4. Candidates in contested judicial races should be at the top of the judicial ballot.

Judicial ballots are often lengthy, and many voters, seeing numerous uncontested races, do not complete their ballots.  If contested races are near the bottom of the ballot, candidates in those races receive fewer votes than those at the top of the ballot.  A bill was introduced in the legislature last session on this topic and was favorably received by both houses.  However, it was not enacted into law because the bill was attached to a bill involving more controversial issues.  The Minnesota District Judges Association is in favor of this bill.

5. The MSBA should oppose any effort to remove the incumbency designation from the judicial ballot. 

The committee believes that including the incumbency designation on the ballot provides relevant information to voters in contested judicial races.  The League of Women Voters Minnesota and the Minnesota District Judges Association also support retaining the incumbency designation.

6. The Minnesota Code of Judicial Conduct should be amended to require an education course for all judicial candidates on ethical issues involved in campaigns for judicial office.

Implementation of this recommendation would require amendment of Canon 5 of the Code of Judicial Conduct as follows:


Additions underlined

Canon 5

A Judge or Judicial Candidate Shall Refrain From Political Activity Inappropriate to Judicial Office

A.  In General

(4)     No earlier than one year prior to and no later than thirty days after filing an affidavit of candidacy with the election authority, a candidate for election to judicial office, including an incumbent judge, shall complete a two-hour course in campaign practices, finance, and ethics approved by the Minnesota Board on Judicial Standards.  Within five days of completing the course, the candidate for election to judicial office, including an incumbent judge, shall certify to the Minnesota Board on Judicial Standards his or her completion of the course and understanding of the requirements of the Code of Judicial Conduct.

A course on this topic has been offered in August of even-numbered years, but attendance is presently voluntary.   The committee believes that mandatory attendance is preferable.

D. MSBA Action in the Post-White Environment

The committee asks that the recommendations in this section of the report be adopted by the Board of Governors and implemented by the Association.  The committee recognizes that it is likely that a number of these recommendations would need to be implemented by an independently funded Political Action Committee.

1. The Minnesota State Bar Association should draft and publish a “position statement,” setting forth the organization’s views relative to both free speech and expectations regarding restricting such speech with respect to judicial candidates.

The position statement should be limited to one page or less, and provide a framework for acceptable speech and conduct. The statement should take a strong stand against a candidate’s “announcing” personal views or opinions regarding controversial issues.  The statement should also urge citizens to hold candidates accountable to the standards enunciated by the MSBA and set forth in Canon 5 of the Code of Judicial Conduct. See recommendation C. 3, above.  This recommendation is in line with Recommendation No. 4 of the 1997 MSBA Judicial Elections Task Force Report, which states, “The MSBA should cooperate with the State Board of Judicial Standards, the Office of Lawyers Professional Responsibility, and community organizations to educate candidates and the public about the permissible range of candidate speech in judicial elections.”

2. The position statement should be supported with an outline of recognizable attributes useful in determining a candidate’s qualifications.

Impartiality and independence should be included in the outline.  Sample questions for use in interviewing judicial candidates should also be provided each election year.  These items should be made available on the MSBA website, and placed in printed pamphlet or news release format.  See also recommendation 5 below on development of a “voters’ guide.”

3. The MSBA should prepare and disseminate a press release in each election year republishing the position statement. 

Further consideration should be given to preparing such a release as a full-page ad for publication in a statewide or several statewide papers.

4. The MSBA should establish, in each election year, a committee charged with monitoring all contested judicial elections and accepting complaints in those elections.

If a candidate’s actions or speech appear in contravention of the MSBA position statement and/or Canon 5 of the Code of Judicial Conduct, the committee shall recommend appropriate sanctions. The MSBA could consider utilizing the Fair Response Committee for this purpose – this may involve rewriting the scope of the Fair Response Committee’s authority and its internal guidelines.

5. The MSBA should retain the plebiscite, but the process should be conducted electronically.

The committee believes that plebiscites in contested judicial races encourage the election and retention of qualified judges by informing voters of the opinions of those most acquainted with the judiciary.   Conducting the plebiscite electronically should reduce costs and cut down on MSBA staff involvement.  The electronic process will also allow district bar association participation, which the MSBA should encourage. Contemporaneous with the revision of the plebiscite, the MSBA should provide educational materials to the public, specifically, publication of a “voter’s guide” to judicial elections and candidates. This publication could be produced jointly with other public interest groups such as The League of Women Voters.

6. The MSBA should reconsider implementation of Recommendations 6, 7, 8 and 9 from the 1997 Judicial Elections Task Force Report.

Recommendation No. 6: The MSBA should continue to conduct plebiscites for contested statewide judicial seats, and should endorse the prevailing candidate in the plebiscite if that candidate receives at least 60% of the votes cast.

Recommendation No. 7: The MSBA should launch a three-stage effort to ensure a more informed electorate in judicial races, the goals of this effort should be 1) engaging the press in a dialogue about its role in the process; 2) education of the electorate about judicial seats and about the qualities of a good judge; and 3) education of the electorate about specific candidates and how they are viewed by the Association.

Recommendation No. 8: The MSBA should appoint a committee in each year in which it conducts a judicial plebiscite, the purpose of which would be to educate the media and the electorate of the plebiscite results and any endorsements.

Recommendation No. 9: The MSBA should encourage each of the state’s district bar associations to adopt similar procedures regarding the conduct of judicial plebiscites, endorsement of prevailing candidates, and education of the electorate.

Respectfully submitted,

MSBA Judicial Elections Committee

Mark Gehan, Chair

Members:
Ronald L Abrams – Minnesota House of Representatives
Thomas W Anderson - Metropolitan Airport Commission
Edward E Beckmann - Murnane Conlin White & Brandt PA
Steven V Besser - Dolan & Besser
Donald R Betzold – Minnesota Senate
Susan N Burke - US Attorneys Office
Carl W Cummins, III – Citizens League
Stacy K Doepner-Hove – The League of Women Voters of Minnesota
Janet H Gendler –The League of Women Voters of Minnesota
Lynn Gitelis – Citizens League
Catharine F Haukedahl - Mid-Minnesota Legal Assistance
David F Herr - Maslon Edelman Borman & Brand LLP
Jean F Holloway - Faegre & Benson LLP
James J McConnell - Minneapolis
Brian R McDaniel - Minnesota Business Partnership
E Anne McKinsey, Judge - Fourth Judicial District
Thomas M Neuville – Minnesota Senate
Judith L Oakes - J Oakes & Associates
Elena L Ostby – Ostby & Associates
Karna M Peters - Peters & Peters PLC
Thomas W Pugh – Minnesota House of Representatives
Peter M Reyes, Jr - Cargill Inc
Lawrence M Rocheford - Jardine Logan & O'Brien PLLP
Barbara J Runchey - Runchey Louwagie & Wellman
Jon Stafsholt, Judge – Eighth Judicial District
Edward C Stringer – Briggs and Morgan
Wayne D Struble - Bowman and Brooke LLP
Donald J Venne, Judge – Tenth Judicial District
Edward T Wahl - Faegre & Benson LLP
Ruth Ann Webster - Gislason & Hunter LLP
Geri Lynn Williams - Cargill Inc
Bruce D Willis, Judge - Minnesota Court of Appeals

MSBA Staff:
Joni Fenner
Mary Grau

This report has not been adopted by the MSBA.  It will not reflect the official position of the Association unless and until it is adopted by the MSBA Board of Governors. 

-Posted 11/25/03-