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Summary of Meeting with Al Quie and Mary Vasaly
Civic Caucus, 8301 Creekside Circle, Bloomington, MN 55437
Thursday, January 17, 2008
Guest Speakers: Al
Quie and Mary Vasaly, spokespersons for commission recommending
changes in the method of selecting judges in Minnesota
Present: Verne C. Johnson, chair;
Charles Clay, Bill Frenzel (by phone), Paul Gilje, Jim Hetland, John Mooty
(by phone), and Wayne Popham (by phone)
A. Context of the meeting—A
significant change in the method by which judges are selected in Minnesota
will be recommended to the 2008 Minnesota Legislature. The Civic Caucus
has received background on these recommendations in previous meetings. For
comments on judicial selection at previous Civic Caucus meetings, go to
“Elections” under “Issues Pages”. Select “Judiciary” under “Elections”.
B. Introductions—Verne and Paul
welcomed and introduced Al Quie and Mary Vasaly. Quie, former Governor of
Minnesota, chaired a Citizens Commission for the Preservation of an
Impartial Judiciary. Vasaly, a lawyer and co-chair of the Minnesota State
Bar Association’s Judiciary Committee, served on the commission.
C. Background on judicial selection—
1.--Court decision impacts
current system in Minnesota—The Citizens Commission was formed
after a 2002 U. S. Supreme Court decision in Republican Party of Minnesota
v. White and a related decision in 2005 by the Eighth Circuit U.S. Court
of Appeals. These decisions overruled provisions in Minnesota that had
prohibited judicial candidates from announcing their views on disputed
legal or political issues and had prohibited candidates from identifying
themselves as members of a political party, attending political
gatherings, and seeking, accepting and using political party endorsements.
“In sum, in the post-White era, judicial campaigns may be conducted in a
manner that increases both the perception and reality that justice is for
sale,” the Quie-Vasaly commission report said. “Partisan campaign
activities and fundraising activities threaten the neutrality of courts
and endanger a litigant’s fair day in court. They also impair the core
functions of courts to protect individual rights and liberties…In short,
post-White judicial campaigns have the potential to threaten the very
foundation of our constitutional democracy and the rule of law.”
2. How judges are selected in
Minnesota now—Judges of the Minnesota district courts, state
court of appeals, and Minnesota Supreme Court currently are selected by
direct election and, where vacancies occur between elections, by
appointment by the Governor. Because the vast majority of judges choose to
retire before the end of a term, to avoid an open contest in an election
and to give the Governor an opportunity to appoint a replacement, almost
all judges initially reach the bench by appointment. They then stand for
election when terms expire with the word “incumbent” by their names.
For appointments to the district courts, a statutory body, the Minnesota
Commission on Judicial Selection seeks applicants and makes three to five
recommendations to the Governor. For any given district court appointment,
the Commission has 13 members, seven appointed by the Governor (five
attorneys and two non-attorneys); two appointed by the Minnesota Supreme
Court (one attorney and one non-attorney), and four from the judicial
district in which the vacancy occurs, two by the Governor and two by the
Supreme Court, each naming one attorney and one non-attorney. Eric
Magnuson, an at-large attorney appointed by the Governor, is chair.
Minnesota is one of 24 states using direct election, according to David
Schultz, in an article for Bench and Bar in November 2005. Another 15
states use retention elections to determine whether judges, having been
initially appointed, should serve additional terms, Schultz reported. The
other 11 states use other systems of selection by the Governor and the
Legislature, he said.
3. Recommendations for a new
system--The above-named Citizens Commission for the
Preservation of an Impartial Judiciary, which Quie chaired and of which
Vasaly was a member, is recommending that the 2008 Legislature propose
changes in the state constitution and in legislation to offset the impact
of the White decision:
a. Provide that all
judges reach the bench by appointment—Existing provisions
allowing judges to run for office in an open election would be amended.
This would require a constitutional amendment.
b. Appointment based on
merit—All judges, District Court, Court of Appeals, and Supreme
Court, would initially reach the bench by appointment by the Governor. The
Governor would select from a list of approved candidates submitted by a
merit commission. In the case of district court judges, the existing
Minnesota Commission on Judicial Selection would continue to recommend a
list of approved candidates based on merit. Currently, the Governor may
appoint someone who is not on the list; under the changed system, the
Governor would not have that option. For appointments to the Minnesota
Court of Appeals and the Minnesota Supreme Court a separate Appellate
Court Merit Selection Commission would be established, four of whom would
be non-lawyers. The Governor and the Chief Justice would each appoint four
and the Governor would appoint the Chair.
According to the Quie-Vasaly report, the following criteria would be used
in selecting candidates: “integrity, legal knowledge, communication
skills, judicial temperament, ability to promote trust and confidence in
the judiciary, common sense, experience, and diversity…without regard for
the political affiliation of the nominee or the Governor.”
c. New proposal for
evaluating performance of judges—The report recommends that new
procedures be established to evaluate the performance of judges. The
evaluation would be carried out by a 30-member Judicial Performance
Evaluation Commission, with the Governor and Chief Justice each appointing
one-half. A majority would be required to be non-lawyers.
Attorneys, litigants, other judges, and other persons who have been in
direct contact with each judge would be periodically surveyed,
confidentially, about each judge’s performance.
Before a judge’s term expires the Judicial Performance Evaluation
Commission would decide by a vote in a public meeting whether a judge
meets or does not meet judicial performance standards.
d. Differing views on
steps to take when a judge’s term expires—A majority of
participants in the Quie-Vasaly report recommended a retention election,
in which the only question is whether a judge should be allowed to remain
in office. No candidate would be running against the judge. The ballot
would indicate whether, in the opinion of the Evaluation Commission the
judge is “qualified” or “not qualified”. Quie stood with the majority.
Vasaly and others in the minority recommended against a retention
election. The minority recommended that the Evaluation Commission make the
final decision on whether a judge should serve another term.
The majority felt some involvement by voters is desirable. The minority
felt that a retention election would be subject to the same campaigning
abuses that the new system is designed to correct.
In a close vote in a separate inquiry by the Minnesota State Bar
Association, a majority—including Vasaly-- recommended that the Evaluation
Commission make the final decision, without a retention election.
D. Discussion—In Quie and Vasaly’s
discussion with the Civic Caucus the following points were raised:
1. Governor can ask for
three more names—Vasaly clarified that under the proposal the
Governor can ask the Merit Selection Commission for three more names if
the Governor chooses not to make an appointment from the first three. But
the Governor would be required to select from either the first or the
second set of three names.
2. Judges likely to
fulfill their terms—Quie noted that under the proposal sitting
judges won’t have an extra incentive to retire before the expiration of
their terms, because the Governor appoints all replacements. Now most
judges retire before their terms expire so the Governor can make a new
appointment. Under the present system, if no such appointment were made,
the likelihood of a contested election to fill a vacancy caused by
retirement would increase.
3. Independence of the
judiciary at risk—Unless changes are made as their report
recommends, Quie and Vasaly said judges will become beholden to those who
provide financing for their election campaigns. Judges must be impartial
and accountable to the law, not to interest groups who helped elect them,
Quie and Vasaly said.
4. Special interests
still could try to affect a retention election—Quie
acknowledged that in retention elections it still would be possible for
judges to accept campaign gifts and state their views on pending cases and
it would be possible for special interest to try to unseat a judge.
However, he reminded the Civic Caucus that the words “qualified” or “not
qualified” as determined by the Evaluation Commission would be next to
each judge’s name in the retention election. Thus, it would be very
difficult for a special interest group to surmount a successful negative
campaign against a judge determined to be “qualified”. In another state,
he said, a “qualified” sitting judge spent no money campaigning but was
retained despite a special interest campaign against the judge.
5. No confirmation by
the State Senate—It was noted that federal judges appointed by
the President for life are subject to confirmation by the U. S. Senate. No
such confirmation process would occur in Minnesota under the Quie-Vasaly
6. Possibility of a “not
qualified” judge winning a retention election—A member of the
Civic Caucus wondered whether a judge determined to be “not qualified” by
the Evaluation Commission still could survive a retention election. Quie
replied that judges in Minnesota no longer rely upon strong local
followings for ballot support as, for example, county judges might have
had in years past. Such a local following in those days might have been
strong enough to offset a negative recommendation from an Evaluation
It is most likely, Quie said, that a judge ruled “not qualified” would
retire voluntarily, without risking defeat in a retention election.
7. Importance of
Evaluation Commission—Quie and Vasaly emphasized that the
proposed system, with its Evaluation Commission, offers advantages that
aren’t present today. Sitting judges will be much more careful to be fair
and impartial, knowing that they’ll all be routinely evaluated for their
8. Difference over
retention election not “fundamental”—Quie and Vasaly agreed
that while they disagree over the need for a retention election, they
remain unified on the other parts of the proposal. Quie restated his view
that some semblance of an election should be retained because of the long
history in Minnesota of directly involving voters in selection of judges.
Vasaly restated her position that many of the problems associated with
elections of judges—including the possibility of large campaign
expenditures, of judges stating their views on pending issues and of
special interests trying to influence the election, thereby compromising
the independence of the judiciary—still will be present.
Supporters contend that the retention model will be much easier to "sell"
to the Legislature and the people politically because it ensures that the
people continue to have the right to vote in connection with retention of
judges. They contend that the pure appointive system, which eliminates the
right to vote entirely, will be a much harder sell.
9. Commentary on
redistricting—During the meeting brief discussion occurred over
another matter, redistricting of legislative and congressional seats. Quie
supports relying upon retired judges as proposed by the Mondale-Carlson
group at the Humphrey Institute. But Quie believes that retaining
geographical unity in districts is more important than encouraging
competition. He said Northfield, MN, for example, shouldn’t be split into
two districts, even though such an action might make districts more
competitive (by splitting liberal-oriented students at Carleton and St.
Olaf Colleges into two different districts). He’d preserve the unity of
the entire Northfield community, even though such action might concentrate
more liberal voters in the same district.
E. Thanks—On behalf of the Civic
Caucus, Verne thanked Quie and Vasaly for meeting with us today.