Commentary

Protecting the third branch

Ensuring justice for United States citizens is absolutely essential. At present, justice is being threatened. Changes need to be made in order to maintain a fair, impartial, accountable, and qualified judiciary. Judges should be selected based on merit and retained based on performance.

Al Quie

Al Quie

Minnesota voters are continually frustrated since they receive little information in contested judicial elections and their vote has no effect in the uncontested elections. Secondly, contested judicial elections are increasingly divisive and expensive in many states, denying fair and impartial justice. It is only a matter of time before it occurs here. The best solution is a constitutional amendment requiring that voters be informed through judicial performance evaluation and be able to vote yes or no in “retention elections.”

The Coalition for Impartial Justice, a group established to look at ways to ensure that judicial elections do not become politicized, has proposed that the Minnesota Constitution be amended to provide for public performance evaluations and judicial retention elections.

There are two ways in which the nation’s state judges and justices are selected:

1. Contested elections (with or without party designation), or

2. Appointment.

A plus for Minnesota is that judges may retire early and their successor be appointed. All but one of the present Minnesota Supreme Court justices were appointed originally. All the Court of Appeals judges were appointed; 92 percent of the District Court judges were selected by appointment; and, in 1990, a Judicial Selection Commission was established to evaluate judicial candidates based on merit and make nominations for the governor’s appointment.

There are three ways in which the nation’s state judges and justices may retain their office:

1. Re-election is used in 29 states for some or all of their judges.

2. Retention elections are used in 20 states for some or all of their judges.

3. Reappointment is used in eight states.

Minnesota retains its judges by re-election. In the 2008 election, both Supreme Court justices whose terms expired drew opponents; both justices were re-elected. The terms of six Court of Appeals judges expired and they sought re-election; one drew an opponent and was re-elected. One-hundred-and-nineteen District Court judges whose terms expired sought re-election; seven drew opponents and all were re-elected.

Some Minnesota judicial districts use performance evaluations of judges, but do not inform the public of the results. Seven states use public performance evaluation, which can only be used in retention elections.

The Coalition for Impartial Justice, a group established to look at ways to ensure that judicial elections do not become politicized, has proposed that the Minnesota Constitution be amended to provide for public performance evaluations and judicial retention elections.

Keeping the judiciary impartial

Senate File 70 and House File 224, which address the issues facing judicial elections in Minnesota, are before the Minnesota state legislature. These bills provide for a public performance evaluation of judges, followed by retention elections.

The performance review process is designed to assist voters in evaluating judges who have filed for another term. It both informs the public and facilitates the self-improvement of all judges. Judges will be evaluated on their knowledge of the law, procdure, integrity, impartiality, temperament, respect for litigants, and administrative skill, punctuality, and communication skills. The evaluation will be made mid-term as feedback to the judge, and will be be used to inform the public at least nine months prior to the election.

A Judicial Performance Commission will be established to re-evaluate the standards and procedures. Commission members will perform their duties in an impartial and objective manner and can be removed for cause.

The term of an appointed judge will expire at the next general election held three years after appointment. Subsequent terms will be eight years. If a majority of those voting on the retention of a judge vote “yes,” the judge will remain in office. If a majority of those voting on the question vote “no,” a vacancy shall exist at the end of the judge’s term. The governor will then appoint a successor from a list provided by the Judicial Selection Committee.

Some people are concerned that the amendment takes away right of citizens to vote for judges. The amendment actually enhances the citizen’s opportunity to vote, since they will have a real voice in the retention of every judge seeking to continue.

Another concern for voters is that this prevents people from running against a sitting judge. This is correct. Citizens will be able to vote on the retention of every judge, but a judge chosen on merit will succeed any judge who is defeated.

Opponents sometimes state that citizens will not read the public evaluations before the retention election. In states with public performance evaluation, the knowledge and interest of the citizens in the judicial system is enhanced.

Minnesotans can be trusted to do likewise.

Al Quie, a member at Minnetonka Lutheran Church (ELCA), Minnetonka, Minnesota, is a former governor of Minnesota. He chaired the Minnesota Citizens Commission for the preservation of an impartial judiciary in 2006.

Tags: , , , , , , ,