MINNESOTA CITIZENS COMMISSION

FOR THE PRESERVATION OF AN IMPARTIAL JUDICIARY

SUMMARIES OF THE POSITIONS OF THE COMMISSION MEMBERS ON WHICH METHOD OF JUDICIAL SELECITON BEST PRESERVES AN IMPARTIAL JUDICIARY

September 19, 2006

Minneapolis

Present: Gov. Al Quie—chair, Justice G. Barry Anderson, Steven Besser, Professor John Brandl, Wil Fluegal, Michael Ford, Susan Holden, Judge James Hoolihan, Judge Thomas Kalitowski, Patrick Kelly, Dr. Reatha Clark King, Eric Lipman, Annette Meeks, Brian Melendez, Thomas Mengler, Dan Mikel, Rick Morgan, Jann Olsten, Vance Opperman, Justice Alan Page, Helen Palmer, George Soule, John Stanoch, Mary Vasaly, Robin Wolpert.

Staff: Nancy Mischel.

Introduction: Governor Quie opened the meeting by stating that the purpose of today’s meeting is for Commission members to identify which method of judicial selection best promotes an impartial judiciary and why. He informed the Commission that MPR would like to record the meeting, stated that he had no objections to recording the meeting, and asked Commission members for their positions on the issue. There was general agreement that the meeting was public and that MPR could record the meeting. Commission members next discussed whether the feasibility of various methods of judicial selection should be discussed as the individual members identify which selection method they prefer. Governor Quie responded that the Commission members should first identify the best system for promoting judicial impartiality. Then, the Commission could focus on the feasibility of the leading options. Michael Ford raised the issue of whether the Commission should first agree, as a matter of procedure, on the goals of the Commission before addressing what method of judicial selection will achieve those goals. The consensus of the Commission was that the individual Commission members should fully discuss all possible goals to be achieved when they identify which method of judicial selection they prefer.

James Hoolihan: Judge Hoolihan stated that the overall goal of an impartial judiciary can be broken down into several subsidiary goals, including (1) attracting and maintaining quality judicial candidates and designing a selection method that works with our present merit selection system, (2) designing a selection system where judges can serve “without fear or favor,” (3) keeping partisanship and big money out of judicial races, (4) providing assurance to judges of stability in the position so that we not only attract good candidates, but we also alleviate the stress associated with campaigning for office while maintaining a full workload, (5) providing a removal mechanism so that judges may be removed for appropriate reasons, including substandard performance, and (6) giving the public some say in the judicial selection process. Judge Hoolihan recommended that a retention commission conduct performance evaluations of sitting judges and that the commission’s evaluation be made public so that the voters have information they can use to make their choice at the polls. He recognized, however, that a problem with retention elections is that the voters cannot become educated and informed through the campaign process.

Jann Olsten: Mr. Olsten stated that he did not want a system of judicial selection that provided job security for judges. Mr. Olsten recommends that judges be appointed by the governor with the assistance of the Merit Selection Commission. Judges should run for retention every six years. Such an election will keep the voters involved in the selection process. An independent retention commission should evaluate the performance of sitting judges and that evaluation could constitute an “endorsement” of the judge. This endorsement will provide the electorate with information that can be used to make an informed decision at the polls. Helen Palmer pointed out that Arizona has institutionalized a process by which information on sitting judges is sent to the voters. John Brandl observed that this new retention commission would have a lot of power and raised questions related to its legitimacy, including the issue of who is going to have the power to pick the members of the commission. 

Steven Besser: Mr. Besser stated that the appointive system was the best method for achieving an impartial judiciary. The problem with the retention system is that interest groups and political parties can target judges for removal for partisan reasons. Mr. Besser proposed a 54 member nonpartisan commission. The function of the commission would be to make recommendations on appointment and retention. One third of the commission would be composed of lay persons. The commission would function in six working groups, each composed of nine members. Some of the working groups would evaluate judicial candidates and provide three recommended candidates to the governor for appointment. The governor would have to make the appointment from the pool of three. Other working groups would evaluate judicial performance. No one would review performance of a judge if they had participated in the decision to recommend that individual for appointment. The performance groups would give the sitting judge a rating—qualified, not qualified, well qualified. If the judge received a not qualified rating, that judge would automatically be removed at the end of his or her term. If the judge received a qualified rating, the judge would be reappointed by the governor. If the judge received a well qualified rating, the judge would automatically remain in his position without the need for reappointment. Mr. Besser believes this selection system would achieve the twin goals of independence and quality. Justice Anderson observed that if the commission is appointed by the senate, the majority party in the senate would obtain control over the commission. Mr. Besser responded that the staggered terms of the commission, coupled with a prohibition on communication between the senate, the governor, and the commission would address that issue.

Mary Vasaly: Ms. Vasaly stated that she supports an appointive system of judicial selection and opposes retention elections because they still invite partisanship. The Merit Selection Commission should recommend to the governor three qualified candidates from which the governor must make an appointment. The merit selection process should be extended to cover all district court and appellate positions. Ms. Vasaly recommended that the term of a judge be lengthened to 10 years. When the term of a judge is close to expiring, a retention commission should evaluate whether the sitting judge is qualified or not qualified. The rating system should be qualified or not qualified—we should not have a well qualified category. Ms. Vasaly is concerned about the extent to which the retention commission’s evaluation is public—she believes that some safeguards are necessary to protect the privacy interests of the sitting judge.

Thomas Mengler: Mr. Mengler stated that he supports either a purely appointive system or an appointive system with retention elections. The problem with a purely appointive system is that it will be difficult to obtain a constitutional amendment to change the system. So the feasibility problems associated with the appointive system leads Mr. Mengler to support a hybrid system—initial appointment followed by retention elections.

Patrick Kelly: Mr. Kelly supports the idea of having performance evaluations of sitting judges as part of the retention process. He also supports some features of Connecticut’s selection system, particularly the idea that the governor renominates a judge after that judge has successfully passed a performance review and then the senate reconfirms the judge. This is a method by which the public can participate in the judicial selection process.

Brian Melendez: Mr. Melendez expressed support for Steven Besser’s ideas on judicial selection. He believes that voters like the right to vote in the abstract, but that they do not care about the right to vote for judges and do not have the information to make informed choices at the polls. Mr. Melendez opposes creating a new institution for judicial selection. He believes that we should use existing institutions—the Merit Selection Commission and the legislature to accomplish our objectives. Mr. Melendez recommends that the governor nominate a judicial candidate based on a pool of qualified candidates screened by the Merit Selection Commission and that a joint committee of the House and Senate have the power of confirmation. Because the House and Senate would be exercising their authority through a joint committee, partisanship would drive the committee only if the same party controlled both houses of the legislature. When a judge’s six year term expires, the judge would be eligible for reappointment by the governor, based on the recommendation of the Merit Selection Commission.

Eric Lipman: Judge Lipman believes that if the Commission is to recommend that the Minnesota Constitution be changed, the Commissions Final Report should clearly explain two things: (a) Why the recommended changes are needed, and (b) How the new system will provide more information to the public about the performance of judicial candidates. Answering these questions, Judge Lipman argued that the principal object of the Commissions work and recommendations should be to eliminate the corrosive effects of fundraising by judicial candidates. He stated his belief that eliminating fundraising by judicial candidates is an idea that has broad popular support and could be the theme of a winning initiative campaign to amend the state constitution.

Judge Lipman was also critical of proposals that recommended expansion of the role of the Commission on Judicial Selection. He asserted that these proposals would reduce, rather than increase, the amount of information that would be available to the public about the performance of judicial candidates. In what he termed a cautionary tale about these proposals, Judge Lipman listed a number of features of the current merit selection process that occur outside of public view. He expressed doubt that Minnesota voters would, in the context of a proposed amendment to the state constitution, trade their own votes for procedures that are like those of the current Commission on Judicial Selection.

Dr. Reatha Clark King: Dr. King supports the appointment of judges by the governor from a list of recommended candidates provided by the Merit Selection Commission. She believes that judges should have a longer term—10 years—and that there must be a performance review process. With respect to performance review, Dr. King supports Judge Hoolihan’s proposal. She cautioned, however, that the retention commission’s work needs to be rigorous, its membership must be prestigious so that its credentials are beyond reproach, it must be diverse, and, most importantly, it must serve as a proxy for the public in the judicial retention process and must be responsive to the public. Dr. King believes that these changes to the selection system will stop big money from distorting and tainting the judicial system. Eric Lipman then raised the question of what happens when judges do not follow the law. He believes that we need an institutional mechanism for holding judges accountable for straying from the law—a mechanism that has the confidence of both elites and the public. Mary Vasaly responded that the process of appellate review addresses judicial policy-making behavior and it is dangerous to have a retention commission reviewing judicial opinions to determine if the judge is following the law.

Annette Meeks: Ms. Meeks is opposed to making the merit selection process public because that would have a chilling effect and would decrease the quality of judicial candidates. She is also opposed to the 54 member commission. Ms. Meeks proposes a selection system through which a candidate obtains the endorsement of a citizens’ commission. That commission would have a generous budget and it would serve as a link between the voters and the selection process. Although the public would not have the vote, it would be able to hold judges accountable through the citizens’ commission.

Dan Mikel: Mr. Mikel proposes that we “tweak” or make modifications to the current system because amending the constitution will be difficult to accomplish. For Mr. Mickel, the purpose of any such changes to the judicial selection process would be to keep money out of judicial campaigns. Mr. Mikel supports having a commission with staggered terms, peer review, and the involvement of the legislature in the selection process.

Helen Palmer: Ms. Palmer favors the appointive system, with a significant role for the Merit Selection Commission (enhanced by diversity). Voting should play no role in the selection of judges—the judiciary is different from the legislature and the executive. Retention elections will not solve the problem of big money in judicial campaigns. Ms. Palmer believes it will be hard to sell an appointive system to the public.

John Stanoch: Mr. Stanoch believes that we need to keep partisanship out of elections to maintain an independent judiciary and that an appointive system secures independence so that judges can make decisions without fear or favor. Mr. Stanoch is not convinced, however, that there is a need to change our current system because there is no sign that it is broken. Mr. Stanock does not support retention elections because parties or interest groups could target a sitting judge based on a single issue campaign.

George Soule: Mr. Soule supports an appointive system with periodic retention review by a qualified group. He favors the current merit selection system and opposes involving the legislature in the selection process because of the possibility of gridlock in the confirmation process. Mr. Soule believes that it will be difficult to move to an appointive system because it will be hard to sell the idea to the public.

Rick Morgan: Mr. Morgan believes that we cannot totally separate politics from the selection process, but we can remove the pressure associated with raising money in judicial campaigns. The problem of money in judicial campaigns is inherent in our current system and in retention elections. Mr. Morgan likes the merit selection process and favors extending it to all appellate courts. Mr. Morgan believes that if we eliminate judicial elections, we need to provide avenues by which the public can participate in the appointment process, even if that turns qualified candidates away. Mr. Morgan supports caps on campaign expenditures and longer terms for judges. He is uncertain how to structure the retention process. He believes that who has the authority of ratification or retention is a key issue.

Thomas Kalitowski: Judge Kalitowski agrees that our current system is not broken yet. The experience of our sister states, however, indicates that the system eventually will break and that once judicial elections are politicized, we cannot fix the system. Judge Kalitowski believes that appellate review provides a means of insuring that judges are accountable and have fidelity to the rule of law and the constitution.

G. Barry Anderson: Justice Anderson believes that once we start the descent into politicized judicial campaigns, we cannot reverse course. The public becomes comfortable with big money and partisan judicial campaigns. The work of this Commission represents our last best opportunity to change the system before partisanship consumes the system. Justice Anderson supports an appointive system. He recognizes, however, the public sentiment in favor of being able to fire a judge. To give effect to that sentiment, Justice Anderson proposes an appointive system with a recall election provision (containing a lower threshold than currently available) that gives the public the power to put a judge’s name on the ballot and “fire” that judge. Justice Anderson is concerned about selling an appointive system to the public.

Susan Holden: Ms. Holden believes that we should not wait until elections have become partisan and expensive to try to fix the system. Ms. Holden supports an appointive system coupled with the merit selection process, but also recognizes the problem of selling this idea to the public. She believes that there should be review at the end of a judge’s term, but is concerned that the retention or reconfirmation process would be very political. Ms. Holden would like to eliminate politics from the retention process by somehow institutionalizing a presumption of retention or reelection (provided that the judge’s performance was appropriate).

Michael Ford: Mr. Ford supports nomination of judges by the governor based on a pool of recommended candidates from the Merit Selection Commission. The Senate would then have to confirm the nominee. Judges would have a ten year term and would be subject to retention elections. Mr. Ford supports public financing of judicial campaigns.

John Brandl: Mr. Brandl is concerned that if the Commission recommended a constitutional amendment, the campaign for that amendment would be taken over by special interest groups and we would lose. Mr. Brandl proposes that we retain most aspects of our current system with longer terms for judges. A new commission should be created to screen judicial candidates and to review the performance of sitting judges. The members of the commission would be chosen by the governor, the legislature, and retired judges so that it is not dominated by any political party.

Wil Fluegel: Ideally, Mr. Fluegel supports an appointive system and the expansion of the merit selection process to all appellate judges. Practically, however, we should adopt a modified retention election system. Although retention elections will not remove money from judicial campaigns, it will reduce the incentive for pouring money into judicial campaigns to unseat incumbents because that person will be replaced by a candidate who was reviewed and recommended by the Merit Selection Commission.

Al Quie: Governor Quie believes the Commission cannot wait and must act now. He supports an appointive system coupled with a merit selection process. The judge would face his or her first election at the end of the term, instead of within three years of appointment. Governor Quie also supports the use of a commission to conduct performance reviews so that the voters have information they can use to get rid of a bad judge. Governor Quie then introduced former Chief Justice Kathleen Blatz.

Kathleen Blatz: Former Chief Justice Blatz testified that elections ruled by partisanship and position-platforms are the antithesis of what the framers of the constitution had in mind for the judiciary and its core function—to make fair and impartial decisions. She cautioned the Commission, however, that a campaign for a constitutional amendment to establish an appointive system will fail because the public will not accept the loss of the right to vote and the proposal will not get past the legislature. Justice Blatz is particularly concerned about the effect of such a campaign on the public support and trust of the judiciary. She believes that the campaign for a constitutional amendment will demonize judges and public respect for the judiciary. For these reasons, Justice Blatz supports retention elections. Retention elections will reduce the incentive for big money to enter into judicial races because the people spending such money will not be able to pick a replacement for a sitting judge—the replacement will be chosen through the merit selection process. Accordingly, even if the incumbent is defeated unfairly based on, say, disagreement with decisions or other political issues, the entire judicial system is not defeated because the replacement is someone who will be screened by the merit selection system and will make decisions based on the law rather than the preferences of political parties and interest groups.

Following Justice Blatz’ testimony, and further discussion of the Commission members, Governor Quie established three groups to examine the composition and powers of a retention commission.