Responses to Civic Caucus DRAFT STATEMENT on judicial selection -- number indicates degree of support
on a scale of (0), least, to (10), most support

John Finnegan (10)
Judges should be appointed on the basis of their skills and experience. Provide that all judges report contributions and party affiliations.

Ed Oliver (10)
I support the statement on how we should elect or un-elect state judges.

Rod Tietz
Well written plan. I like it

Kevin Dahle (10)
We have to do whatever we can to keep politics out of our judiciary.

Bob Whereatt (10)
I fully support the Quie Commission recommendations and the additions proposed by Civic Caucus.

Royce Sanner (10)
I strongly support this statement.

Al Quie
Great job.

Bob White (10)

Bob Brown
Well done.

Dave Durenberger (10)
Having spent 20 years at the state or federal level picking judges I believe the merit selection/retention approach is good. However, before installing qualification committees, I'd like to see criteria for both committee membership and for committee evaluation of sitting judges.

Bright Dornblaser (10)
The more I read and think about it the more I fully support it.

Paul Hauge (9)
Policing the contributions of attorneys who appear before judges may be quite difficult for lawyers who float around the state. It may mean that all attorneys who appear in court will be required to file affidavits in many counties or with the clerk of Supreme Court listing the judges whom they have supported.

Lyall Schwarzkopf 9)
The summary of statement and the first five paragraphs of the statement are preachy. I do not think we should preach to people, but we should inform and recommend. This will be better accepted by the public and the legislators. From then on the statement is very good.

Delete the summary of statement and the first five paragraphs of the statement. I think I saw a place where a period was missing, but going over the item, I could not find it.

Gary Clements (10)
This is a hugely important issue in the era of polarized politics. We cannot let the Judicial Branch begin to mimic the worst characteristics of the Legislative Branch.

George Pillsbury (10)

Clarence Shallbetter (9)

Marina Lyon (10)
I completely agree with the Quie and Caucus recommendations in the statement.

What improvements would you suggest? If there is any evidence that the selection of U of M Regents via a merit panel have produced better results, perhaps a comparison could strengthen the recommendations (and make them more understandable/radical to members of the public.

Also, what compromises, if any, is the caucus willing to accept? Should there be limits on individual contributions to judge campaigns, as there are for other campaigns? That would prevent the situation that occurred in West Virginia (absent a huge amount of work.)

Tim McDonald (9)
Good structure of arguments with adequate historical context.

Judge Tom Neuville
I do not support the Quie commission recommendations. This was an issue that I worked on for many years as a former State Senator.

In 2007, I introduced SF 324 https://www.revisor.leg.state.mn.us/revisor/pages/search_status/status_detail.php?b=Senate&f=SF0324&ssn=0&y=2007
which would amend the constitution to establish a "modified" federal system for selecting judges. The primary differences with the Federal method of selecting judges and SF 324 are:

1. Limited terms for judges, not lifetime appointments, and requirement for re-confirmation at the end of each term. The legislature retains the authority to determine the length of the judge's term, but SF 324 sets the term at 10 years to allow for greater independence.

2. Anti-filibuster provisions which automatically confirm a Governor's nominee if the appointee isn't rejected by the Senate within a certain period.

3. Confirmation or re-confirmation by the Senate can be accomplished during special sessions of the Senate only, called solely for judicial confirmations during the interim.

My proposal would retain the Judicial merit selection committee, but not make it mandatory upon the Governor. Senate confirmation and public scrutiny would check the Governor's appointment.

Retention elections have the following flaws:

1. It doesn't eliminate the need for fundraising or political endorsements from the process. Judges, especially for the appellate courts would raise money as a precaution against last month negative campaigns against them. It is the concern about fundraising which jeopardizes judicial impartiality.

2. It is harder to remove a poor judge thru the retention election method than by the re-confirmation process. Citizens would have a greater voice at a public hearing called for re-confirmation when a judge is :

a. losing his legal skills
b. chronically rude or lacking in temperament
c. guilty of chronic non-feasance

3. Confirmation and re-confirmation of a judge provide for greater accountability of the judicial branch, especially against violations of the separation of powers, which is not the case with retention elections. Impartiality is also very important, but we cannot forget the need for effective accountability.

4. Mandatory use of the judicial evaluation commission has the potential of being just as "political" as the current election method or a confirmation process. At least the confirmation process avoids the corrosive effect of money, endorsement and conflict of interest. Many states with retention elections still have costly and political elections, mostly at the appellate level.

As you know, I am a Judge now and this email represents my personal view. I haven't changed my opinion since leaving the Senate.

Leslie Davis (0)
I oppose the Quie Commission proposal. Implementing the Quie Commission proposal would do a disservice to the People of Minnesota by allowing the judiciary to continue to victimize us.

For over 30 years our judges and governors have been running a scam on us. When it appears that a judge might be challenged in an election, the judge "retires" less than a year before the next election. The governor then appoints a new judge, and there is no election for that seat for another 6+ years. This is why 90% of the judges are appointed their first term, and not elected.

The Supreme Court wrote specific rules concerning judicial elections, restricting what the judicial candidates could say, not allowing the candidates to tell the people why they should be elected, and why the incumbent judge should not be elected.

The White case changed this. Now the People will know what is happening in the courts, and how and what the judges are doing. The People will finally be informed about their judges when they go to vote.

The judges in our courts should not be chosen by a group of special interest people such as lawyers and other judges. And the governor should not decide who our judges should be. The governor and the legislature are elected and not appointed and the judges should also be elected and not appointed. I want to have my right back to elect judges and I want to have complete information about each person seeking to be a judge so I can make an intelligent voting decision. All that should be required of a person desiring to be a judge is that they pass a test that they are versed in the law. You DON"T have to be a lawyer to be versed in the law.

The Rep. Severson, Sen. Fischbach bills, House File 1261, and Senate File 2079 respectively, will go a long way to requiring the Minnesota legislature to comply with the
Minnesota constitution. And the legislature should be the one disciplining judges, NOT the judges disciplining themselves. I want the legislature to pass House File 1261 and Senate File 2079 and get Minnesota back on the constitutional track, to the benefit of us all.

State Rep. Bernie Lieder (10)

Steve Marquardt (8)
The improvement that I suggest is to give some elaboration of the criteria and process to be employed by the evaluation panels of the ten judicial districts.

Dan Loritz (8)
Having been close to many, many judicial appointments, we do need to find a better way.

Malcolm McDonald (7)
What do we really want in our judges? Shouldn't that precede the process? When we do discuss process, how do we tie what we want to the process? Not what we don't want but what we do want!

Ray Ayotte (10)

Charles Lutz (9)

Tom H. Swain (10)
I don't like term "non-lawyer". I don't like being a non-anything. Why not instead "citizens who are not lawyers"?

Pam Ellison

Unfortunately, I am generally on the side of Constitutional Law. I think that we further remove the obligation of the public to vote on issues of this nature by selecting a "panel of impartial non-partisan non-lawyer citizens" to recommend to the Governor a list of those that should be selected from.

I see much more danger of partisan choices if the process works in this way. When Governor Ventura was elected, by and large there were good judges selected because Governor Ventura was about selecting the best candidates for the positions whether Democrat or Republican or Independent.

The problem is that even though the Constitution states judges should be elected, unfortunately, most have been selected by the Governor, and the last two terms a very partisan Governor. You cannot take that out of the mix. Partisanship will occur. Because of the timing of many of these selections, there is never an election cycle in play for the public to vote on judicial selections and generally this also causes more of the positions to be appointed.

I think if you have a Republican or a Democrat in the seat of the Governor, there will always be partisan choices made. I think there is a way to keep the Constitution intact here and add some restraints to how judicial elections can be maintained:

1. Publicly fund all Judicial Races and cap the amount they can spend.

2. Run it like a municipal race which means that all candidates cannot disclose their political leanings.

3. Have them all create a brochure that indicates what their positions are on typical issues that they will have sway over, so voters can be informed BEFORE they go and vote.

4. Include these write ups in the voters guide in a special section listed as Judicial Candidates.

5. Keep Judicial appointments to a minimum by selecting years for elections of judges that do not conflict with the length of their appointment.

Example: If a Governor appoints someone in the middle of an election cycle, they would be able to serve on an interim basis until the date of the next election, then they will need to be elected by the public if they decide they care to keep the appointment intact.

There are too many back room deals now with Judicial appointments and if you take the right of the public away to make these decisions the backroom deals will only continue to flourish.

Kevin Quigley
What a bunch of elitist drivel. These recommendations by the so called “Quie commission” (self-selected and funded by its own special interest money they so piously claim to worry about) are nothing more than a power grab away from the everyday people these self appointed “do-gooders” look upon so condescendingly.

These recommendations should be rejected not only as a bad idea, but as a very bad idea both substantively and politically. Uprooting the judicial branch from the public and placing it under the executive branch will result in the long run with a judiciary strongly favoring the state and its executive powers. This is a much greater threat to our liberties than the canard that down the road judicial elections “might” get “messy” in the eyes of the blue blood types who have self-appointed themselves to “protect” the people from becoming involved in matters too “complicated’ for the voters to figure out.

Shame on you for promoting such an anti-democratic idea in the guise of “reform”.

Joe Mansky
I agree with Gov Quie's goals and think he has properly identified the problem. I am not in favor of the retention election system. I also am of the view that the Legislature must have some part in this process. As such, my preference would be a system that would
require legislative approval of all judicial appointments and that the judges serve relatively long terms, with the opportunity for reappointment. I think this would work well with Gov Quie's proposal to have an evaluation of the judges' performance in office.

Scott Halstead (7)
I concur with the appointment by merit and the review process. I suggest that judges be eligible to be reappointed for fixed terms following a successful performance review with a limit of 2 reappointments.

Ray Schmitz (1)
a. The blending of district judges with appeals and supreme court makes little sense, that is, the examples relate to at least appeals and normally the court of final jurisdiction in a state, this is true because it makes little sense to expend great effort on a trial judge who can be easily reversed. Also the ability of a party to remove a trial judge at will makes a bias less important. It does however mean that removal of one by election would be extremely difficult since they now run on a district basis, so there is protection. Current system is working why change, gives the governor far greater powers without the election in the picture.

b. The safe guards talked about with 1/2 selected by chief judge etc, are meaningless since the governor appoints chief judge, obviously we have had a good process, but the issues that lead to election concerns are the same that will produce governors with agenda. Current change to supreme court federal, points out that if there is an issue the president will campaign on it, why wouldn't a governor. Thus the possibility of narrow agenda appointments is there if there is an issue and the proposed process makes it worse.

c. Appeals court and supreme court, this system will as noted give the governor the absolute ability to change the makeup of the court within one or a max two terms. The governor will control appointments and also the evaluation system, I don't think that, if again the issue is a major part of a gubernatorial campaign, that the system will not be bent to the will of the governor. It is true that we have had governors willing to listen to the appointments system but also the fact is that being of the opposing party, especially a visible part, did not lead to appointments in any recent governors. Again do we really want to prevent an Alan Page from funding a campaign, I appreciate that Gov Quie says he, Page, favors this system. which I suggest proves nothing, look at the gender balance on the court, what if there were an interested woman willing to run, with the new proposal she would be blocked. There is an age restriction, perhaps good retirement planning but rotten policy. Kevin Burke noted good points.

As to alternative, leave trial bench alone, actually move election to where seat is rather than district wide. I think this would add to public confidence.

Appeals and Supreme Court, as the author of the Louisiana study said, the easy fix is full disclosure of all campaign contributions, and mandatory recusal from cases where contributor is party or has interest. This should be part of a retention system also, the idea that donors would have to disclose will not stand up to constitution, see federal problems. But candidate can be required to disclose. As Burke noted, a retention system would put the judge in the position of defending against the unknown if the governor rugged the recommendation or a well funded vote no movement were in place. I an election there is a face on the other side not just anonymous vote no.

Karen Cole (10)
This issue is of great concern to me and I am very glad that the Civic Caucus is focusing on it.
• I have done a good amount of speaking to groups like Rotary Clubs, League of Women Voter Chapters and AAUW chapters on this issue for Minnesota Women Lawyers and the League. At virtually every talk, someone asks who appoints the merit selection commission. The public understands that the integrity of that commission is key to the integrity of the judiciary. It may be easy for the membership of the commissions to get lost in the shuffle in legislative discussions of the retention election. But it is a key issue. The Civic Caucus should help focus legislative and public attention on the need for the commissions to be broad-based and nonpartisan. (The League has made this recommendation.) I agree with the recommendation that the majority of the commission be non-lawyers. I think this is essential to public acceptance of the process.
•
• As I said, the public immediately focuses on who appoints the merit selection commission. A commission that is appointed only by the Governor and by the Supreme Court (whose members may have been appointed by the Governor) is a bit suspect. Even though I don't personally concur in the MSBA's recommendations on appointment of judges (rather than retention elections), the MSBA did make a very good recommendation on the membership of the performace evaluation commission. Specifically, they recommended:
o . . . . that any commission that evaluates judges with respect to their qualifications, performance, reappointment, or retention 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.
Maybe a similar approach should be taken to membership of the selection commission.

• Some of those who are opposed to the retention system have been suggesting that this would not eliminate money from judicial campaigns. The evidence from around the country contradicts that -- money in judicial campaigns is far less in states with retention elections. It might be good to point out in the text why this is true: that the retention system reduces the incentive to pour money into campaigns; donors to campaigns may be able to influence the removal of a judge but not the appointment of a replacement.
• It might be helpful to use Wisconsin as an example of a state with expensive judicial elections. Almost 6 million dollars was spent on a race for one seat last April. I think using Wisconsin as an example helps make this threat seem more real to Minnesotans.
• I am intrigued with the idea of requiring litigants and attorneys to disclose contributions to judges to the clerks of court. Presumably that would make the information readily available to opposing parties in litigation, and would put a spotlight on it. But I am a little concerned that that would undermine the rule that insulates judges from knowing who has contributed to them.

Kevin Magnuson (10)
The current system will inevitably go the way of Wisconsin which recently had a $6 million Supreme Court election. When judges take money from groups or announce their views on issues that may come before them, they lose credibility with the public. The time to fix the system is before the problems happen. States that have waited until problems emerge have not been able to reform their system. The Legislature needs to let the public decide if they would rather vote in retention elections with the aid of performance evaluations or if they want to have their judges in head to head knock down drag out campaigns just like politicians.

What improvements would you suggest? 6 year terms instead of 8, no qualified or unqualified designation on the ballot, and have the performance evaluation commission be more of a data gathering, digesting and disseminating organization than a council of wise men and women.

Larry and Ann Schluter (9)

Ina Erickson (9)
I have for a long time been unhappy with elections of judges, whom I know nothing about, and have no way of knowing if they are qualified or not. I really would like to see a "qualified" committee to look over each judge's record.

My question is how is a qualified committee found, who deems them qualified? How can it be determined that it is a non-partisan decision.

Charles Clay
Rather than referring to candidates the committee does not recommend as "not qualified," I believe the qualifications committee should merely state that such candidates are "not recommended for reelection."

Mary Vasaly
I thought your report was excellent. Regarding your questions below:

(a) Yes, we should be concerned about the elections this fall in the post-White world. However, it may take several election cycles before things really get out of hand due simply to the candidates' recognition that they should not engage in the political conduct that will undermine the fairness/impartiality of the judiciary. We have been working really hard to raise consciousness about the issue and candidates are used to the restrictions that were formerly in place.

It may take some time before many candidates abandon voluntary self-restraint and engage in these activities. But if other states are an example, and I see no reason that Minnesota will be different. It will happen. That is why the bar associations have taken other measures to try to encourage appropriate campaign conduct that may keep things under control for a time even if a constitutional amendment does not pass. The bar has formed a Judicial Campaign Conduct Committee. The Committee will ask judicial candidates to voluntarily agree to abide by certain standards of conduct, such as refusing political endorsements and refusing to announce their views on political issues. We hope most of the candidates will sign on to this agreement.

(b) Supreme Court canons might be useful to create disclosure obligations. However, I'm not how that would work. Currently, by having committees, the hope is that judges won't know who gave them money. If this information is required to be disclosed, at the very least it will create the appearance that the judge might favor the contributor. At the moment, all of the law firms contribute money to most of the judges who are running. This is the judges' main source of campaign funds. So I'm not sure how it would play out in terms of judges' recusing themselves from cases. If they recused themselves, it would be difficult to find a judge on many cases who hadn't taken funds. If they didn't recuse themselves, there would certainly be a perception of bias. At the very least, the legislature should impose limits on contributions. As it is now, there are no limits for contributions to judicial campaigns.