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Magnuson, Former Chief Justice, Minnesota Supreme Court
Civic Caucus, 8301
Creekside Circle #920, Bloomington, MN 55437
of the discussion
Verne Johnson (chair), David Broden, Janis Clay, Paul Gilje, Jim Hetland,
Dan Loritz, Tim McDonald, Brenna Murphy, Al Quie, Clarence Shallbetter
Summary of discussion:
Lawyer and former Chief Justice of the Minnesota Supreme Court Eric
Magnuson argues that
judicial system is at risk of becoming weakened through the influence of
money and political campaigns to elect judges. He presents an alternative
proposal advocated by the Coalition for Impartial Justice calling for a
constitutional amendment regulating the process of judicial appointment,
review and retention.
Welcome and introductions
Magnuson is a partner with Briggs and Morgan. After serving as Chief
Justice of the Minnesota Supreme Court from 2008 to 2010, he rejoined
Briggs' Business Litigation Section, and is a member of the firm's
Appellate Practice Group.
earned his B.A. degree in history from the University of Minnesota. After
graduating cum laude from William Mitchell College of Law in 1976,
Magnuson clerked for the Chief Justice of the Minnesota Supreme Court,
Robert Sheran. A year later, Magnuson joined the
law firm of Rider Bennett where he practiced for the next thirty years.
Governor Tim Pawlenty appointed him chair of the state Commission on
Judicial Selection from 2003 to 2008. After Rider Bennett dissolved in
2007, he joined Briggs & Morgan. Governor Pawlenty named him the 21st
Chief Justice of the Minnesota Supreme Court in June 2008.
- In the past, the Civic Caucus has dealt with the issue of judicial
selection at some length. A 2008 Civic Caucus position statement on the
topic of judicial selection argued that public confidence in the
impartiality of the courts is essential to democratic governance and that
such confidence is at risk of erosion if money and political influence
enter into judicial selection.
Minnesota Supreme Court has power to regulate judicial conduct through
such means as limiting the political nature of judicial campaigns. The
court's constitutional parameters have become defined more narrowly in
recent years through United States Supreme Court decisions. Consequently
the Caucus has publicly advocated that the legislature should enact the
recommendations from a citizen commission headed by former Gov. Al Quie to
change the method for selecting judges.
Caucus's statement on this issue, with signatures of support, may be found
on the Civic Caucus website:
Caucus's position is reflective of the view of former Chief Justice
Magnuson in his role as a member of the Coalition for Impartial Justice.
The coalition is a broad-based, non-partisan organization advocating for a
constitutional ballot question calling for a merit selection process for
judges, public performance evaluations and retention elections. The
coalition includes member organizations that represent business, labor,
religious and other non-profit organizations.
- During the course of the discussion the following points were raised:
interested to see your approach to these issues," Magnuson said,
commenting on the format of the day's meeting. "It's not often that you
have discussions of this topic that can progress in a rational and ordered
way." Often when he engages in debates about this topic the smoke can
cover the battlefield, he said.
the process: What is the problem, what are the goals, and what are the
strategies to address the specific goals. It's much like making a legal
is the problem?
The concept of judicial elections is deeply flawed in today's political
Judgeships are at risk of becoming overly political.
the United States Supreme Court found in its White decision that
Minnesota judicial elections rules preventing the candidates' soliciting
donations and making promises were unconstitutional.
are now exposed to the campaign tactics of elections for political office,
Magnuson said. Once high-priced negative campaigning commences it will be
difficult to reverse.
recent Citizens United decision has exacerbated the problem,
Magnuson added, and increases the likelihood that money will begin to
distort judicial selection and erode public confidence in the courts.
Spending on judicial races grows; confidence wanes.
years ago contested races across the country spent $85 million, Magnuson
cited. The past ten years it has increased to $206 million.
don't think a big infusion of money into a race could happen here look to
Wisconsin. The only African American judge on the state supreme court got
knocked out of office by ads calling him liberal, citing a decision that
was technically correct and legally right."
argue that everyone has a bias, and if it's known publicly where
contributions are coming from then the bias is in the open. Magnuson
called that view deeply cynical, and not reflective of reality.
saying that the alternative to judicial selection is that you have to know
who bought your judge."
large sums of money are involved in the election of judges, public
"Involving big money and politics in judicial elections just looks so bad
that we can't let it stand, because the public won't have confidence that
the courts will be impartial." The argument against is not an indictment
of free elections, he said. It's about assuring that citizens retain their
confidence in the judicial system.
Judging is not a popularity contest.
described a case decision in which he wrote that under current statute the
case must result a certain way - though he disagreed personally with that
result. Similarly with the "unallotment" decision, he said while he had
great respect and personal affection for then Governor Pawlenty he
nonetheless had to rule against his action because it was not within the
bounds of what was allowed by law.
presents a basic marketing problem for would-be campaigns. "If a judge
makes a technically correct ruling that releases an alleged criminal, that
comes out in the media as being soft on crime, not strong on the
current trend of funneling more money into judicial elections does nothing
to increase one's knowledge of candidates; it just points out who has the
most yard signs.
can't run on platforms so people are left making decisions based on name
recognition only. "Every judge's campaign should say 'If you elect me I
will be fair and work hard.' But with more money in the process, negative
campaigns can be particularly effective."
Make the system resistant to political and financial influence
has a strong judiciary now.
surveys find that
decisions fare well when they are tested elsewhere in the country. And
when the judiciary performed a survey to see how they were doing 80
percent of people said they had good experience - despite the
circumstances that brought them to court.
state needs judges that are not just competent but are passionate about
doing the job the right way, Magnuson argued. Do people want the title of
judge, or do they want to do the work of a judge?
recalled that when he chaired the commission on judicial selection
commission members did "tremendous amounts of work" that included
interviews and investigations of potential candidates. They would bring to
the governor three top choices assuring that any he selected would do a
good job, and "have the right heart. I told Governor Pawlenty that my job
is to make sure he didn't screw up."
kind of process is necessary. "It's very difficult for a judge to be
evaluated by the general public," Magnuson said. He argues that the state
should continue to use the judicial selection commission approach, but
that this alone will not sufficiently minimize potential political and
STRATEGY: A constitutional amendment for judicial retention elections
question becomes then, what system can bring in the most highly qualified
judges?Retention elections are a better system than contested elections
for deciding which judges should remain in office, Magnuson argued.
Retention elections would offer citizens the chance to vote on whether a
judge should continue to serve after a given term. By relying on
panel-selection, then gubernatorial appointment followed by formal
evaluation, the public interest is maintained. Then judges stand for
retention elections under the light of a fair, public evaluation conducted
by an appointed judicial performance commission. Twenty states use such a
Legislation proposed for a constitutional amendment
coalition has prepared a bill for the 2012 legislative session proposing
an amendment to the Minnesota Constitution to establish retention
elections for judges and creating a judicial performance commission.
Senate version of the bill may be found on the Minnesota Senate revisor's
retention elections work
for judges would be set at eight years, and at the end of that time a
judge seeking to retain judicial office would file an affidavit of
candidacy with the secretary of state. At the next election if a majority
of people voting on the retention of a judge vote "Yes" the judge would
remain in office; otherwise, the governor would appoint a new judge at the
end of the non-retained judge's term.
Retention elections don't necessarily protect judges, Magnuson observed.
In Iowa three justices were derailed by a high-priced negative campaign.
"Big money got them out, but the saving grace is that the big money wasn't
able to put their preferred candidates in. The three new ones that went in
went through the process for selection and are extremely good; all are
fair and impartial."
Publish report cards on the judges up for retention election.
mitigating the effects of big money in judicial campaigns is a serious
problem, we also have the related problem of voters not having enough
information to make informed decisions about judges' performance.
proposed system there is a private evaluation of new judges when they're
early in the job, then a public evaluation when the judge comes up for
election. These evaluations will provide voters with clear information
about a judge's performance, and a recommendation on whether or not the
judge should remain in office.
judges are worried about is that two weeks before the election they may
have nobody running against them, but then ads from opponents start
running and there is no way to defend against those ads.
be the lesser evil - "When I speak to judges I tell them not to put their
own self-interest ahead of all else. If you're so scared that you may lose
your job for doing the right thing then you shouldn't be a judge."
citizens' commission with lawyers and laypersons on it that evaluates the
evidence and produces a report card on each judge for the retention
election, Magnuson suggested. That would enhance the public's ability to
cast meaningful, informed votes.
things start to happen, that often means that an awful lot of pain and
abuse will eventually occur.
hasn't had the problem of big money swaying judicial elections yet,
Magnuson observed, but we probably will have it unless we get out ahead of
view a large majority of judges support the recommendations, but there is
a small core in the judicial and political leadership that don't,"
Magnuson said. The district judges have not yet come along to support the
position publicly. This proposal has to get through the legislature to be
put on the ballot for the coming election.
convince the public to vote for the necessary amendment, he suggested a
campaign ad that might say something like: "Aren't you sick of politics?
Aren't you sick of politics infesting every aspect of life? Then get
politics out of judicial elections."
closed, "Thank you. This is the most rational discussion I've had so far
on this topic."
chair thanked Magnuson for the discussion of this important issue.