Excerpt from judicial candidate Scott Newman’s speech to the Dakota County Bar Association Sept 21, 2006

I do want to talk about the issue involved in this election, but before I do please understand that the question of whether we as a state should embrace the election of judges or an appointment system is not the question in this election, that controversy was resolved in 1857 with the adoption of an election system as provided in our constitution. The legal issue of whether we as a state are complying with and following the constitution in the selection of our judges is the subject of this campaign and the topic to which I would like to direct the majority of my remarks. In doing so, it is necessary for me to briefly outline for you the journey that I have taken in deciding to challenge an incumbent judge in a contested election. In doing so, I simply ask that you keep an open mind and reserve judgment on whether you believe, as I do, that this is a critically important election in which all of us will be participating.

In the summer of 2005, in my capacity as a state representative, I became involved in a lawsuit challenging the authority of the judicial branch to make appropriations out of the state treasury in direct contravention of our constitution which gives that authority exclusively to the legislative branch of our government. As a result of this involvement, I became aware of the White Case and the controversy swirling around Canon 5. After reading that case, I felt the holding in White was truly a remarkable in that the very entity that is charged with the responsibility of preserving and protecting our constitution, was guilty of enacting and enforcing a rule that was in violation of it. Consequently, I decided to study the question of judicial elections a little closer. This is what I found.

First I read Art 6 sec 7 and 8 of the Minnesota Constitution. It states plainly, that the voters shall elect the judges. Whenever there is a vacancy the governor shall appoint someone to fill the vacancy until a successor is elected and qualified. To make sure what the word elect didn’t mean something other than its ordinary meaning such as a retention election, I read the debates on this topic from the 1857 constitutional convention. I will represent to you that the delegates thoroughly debated an election versus appointment system and when they adopted an election system in the selection of our judges, they were referring to open elections by the people and not some type of an appointment system.

I reviewed the amendments to the constitution to make sure that the original intent had not been modified by subsequent amendment. I found that 6 out of the 42 amendments approved since the adoption of our constitution involve the judiciary but none addressed the topic of election versus appointment of our judges.

My next stop was a review of the 1972 Minnesota Constitutional Study Commission. That commission recommended four changes to the constitution as it applied to the judicial branch: a unified court system, adopted in 1972. Authorization for the Supreme Court to adopt judicial rules of conduct, adopted in 1972 with the court actually writing and implementing the cannon 5 rules in 1974. Third was the establishment of the court of appeals which was adopted in 1982. The final recommendation was to amend the constitution to provide for an appointment retention election system, very similar to the type of system that is today being discussed by the Quie Commission. I felt this recommendation was particularly interesting because it reaffirmed the conclusion I had earlier made that the elections described in Article 6 were open elections, not some type of retention election and that if an appointment or retention system was to be implemented, it would take a constitutional amendment to do so. I therefore went on a hunt for that very constitutional amendment. I found it in House File 686, co-authored by then State Representative Terrence Dempsey, read for the first time on March 5 1981 where it was referred to the Committee on Judiciary and died without a hearing. With this information, I am left with no alternative but to be of the opinion that the State of Minnesota has always had open judicial elections and never has had an appointment or retention system.

I next looked at the reason why judges have an incumbent designation after their name on the ballot. I discovered that the legislature passed the judicial incumbent statute in 1981 and that no other elected official in this state is blessed with such an advantage.

The final investigation that I completed involved certain statistical information I thought to be relevant. I found that 95-98% of all judges retire or resign before their elected term expires thereby creating a vacancy for the governor to fill. I know of no other group of elected officials, at the federal, state or local level who with such overwhelming regularity fail to serve out the term to which they were elected by the voters.

I then counted the number of votes in the First Judicial District cast for state senators and representatives in the 2004 general election and found there were approximately 424 thousand votes. I also found the dismal statistic that over 40% or approximately 184 thousand voters standing in the voting booth did not fill out the judicial portion of the ballot.

From the information that I have been able to gather, these are my conclusions and opinions:

The Judiciary is not fulfilling its obligation to the voters to complete their six year term of office thereby creating a vacancy to be filled by gubernatorial appointment. I believe there is a direct correlation between this statistic and the reason why judicial elections rarely involve an open seat and almost always involve running against a sitting appointed judge.

The incumbent designation on the ballot is unique to judicial elections and serves no purpose other than a job retention tool for sitting judges.

The cannon five rules, adopted, implemented and enforced by the Minnesota Supreme Court are and have been for years in direct contravention of our constitution resulting in an informational blackout in judicial elections. In the words of the 8th Circuit Court of Appeals, “it is apparent that advancing judicial openmindedness is not the purpose that lies behind the prohibition at issue here. Rather, the fruits of Canon 5 appear to bear witness to its remarkably pro-incumbent character.”

Working in concert, these three factors have created a de-facto appointment retention system in direct contravention of the plain meaning of our constitution which has effectively disenfranchised the voters of this state.

I come full circle now to the reason why I have decided to run against a sitting judge, a decision I know is not popular with some. Laws are to be applied equally to all, and it is not up to individuals or small groups to deviate from that law, no matter how well intentioned or passionate in their belief that their cause is just. In this case, it seems that the fear of what might happen if elections occur has overridden the obligation to follow the oath to interpret the law in accordance with our constitution. There is a remedy of course if in fact judicial elections are such a bad idea and that is to amend the constitution. But, to permit the constitution to be circumvented, to refuse to follow its plain meaning is wrong, a violation of the oath of office of those, including myself, who have sworn to uphold the constitution of this state and a dangerous threat to our democracy. Therefore I am running to bring this issue out into the light. I intend to remove the issue of judicial elections from a purely academic exercise to a real and ripe controversy in which the voting public can participate. That, I think, is as it should be.