by Tom West
Editor/General Manager
Morrison County Record

The Minnesota Legislature may consider a proposal this year to change the way Minnesota judges are chosen and retained. Former Gov. Al Quie has led a group proposing to change the judicial selection process out of concern that recent U.S. Supreme Court decisions and other developments threaten to politicize the judiciary.

While not endorsing the proposal, the Minnesota District Judges Association is giving it qualified support.

The existing system simply calls for the election of judges to six-year terms. In reality, however, more than 90 percent of Minnesota judges are appointed by the governor after an incumbent judge resigns in mid-term. Applicants go through a screening process before the governor appoints. Once in office, judges are rarely removed or even challenged.

Quie, heading a group called "Minnesotans for Impartial Courts," proposed in 2008 that the Constitution be changed to allow for merit selection of judges appointed by the governor, much as they are now. However, instead of being up for re-election against any lawyer who cares to run, all judges would go through an evaluation conducted by an independent commission. The results of the evaluation would be made public shortly before a so-called "retention election" is held.

In a retention election, the judge would be the only candidate on the ballot, and citizens would vote only "yes" or "no" to allow the incumbent to serve another term.

The Quie proposal came about because other states have seen increased pressure on judicial candidates to speak out on issues. In 2002, the

U.S. Supreme Court ruled 5-4 that a Minnesota law, preventing judicial candidates from commenting on issues that may come before them if elected, was unconstitutional. In 2007, the two candidates for a Wisconsin Supreme Court seat spent $1.2 million between them, but an additional $4.8 million was spent by special interest groups trying to influence the election. In 2008, another case came before the U.S.

Supreme Court because a judge did not recuse himself even though one of the parties in the case had given $3 million to the judge's recent election campaign.

Judge Susan Miles of Scandia, president of the Minnesota District Judges Association, said that while the state's judges had long preferred the current system, they have become increasingly worried that the independence and impartiality of the judicial system is being threatened by these developments. She said, "We have concerns about ugly campaigns and big money coming into Minnesota."

Speaking to the Editorial Board of ECM Publishers, Inc., on Friday, Miles said that the association can give support to a judicial reform proposal only if several conditions are met. (Photo by Howard Lestrud, ECM Online)

She said the Association has vocal factions both for maintaining the current system and for moving to a retention election system. However, the group as a whole has endorsed no proposal.

The Association's Judicial Elections Committee prepared a set of principles last August that would need to be met to gain the judges' support for any change. Those principles include:

* A mandatory merit selection system for all judges.

* Any system that includes popular elections between multiple candidates must not include public performance evaluations, since only the incumbent would be evaluated, not the challenger.

* Any system that includes retention elections must also include a mechanism to notify judges that their retention will be challenged; the creation of an independent performance evaluation commission for judges not controlled by any branch of government and sufficiently funded; and that any election system should be uniform for both trial court and appellate court judges.

Miles also called for the Legislature to adequately fund the court system. "We're operating barebones now, and if we have to cut anymore, ... that respect that we enjoy will start to wane."