Judges -
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The Minnesota Voters Alliance conducted a random survey of one hundred registered voters regarding the elections of judicial candidates. (see Judicial Ballot)
The results were very disturbing and clearly indicate an eroded public confidence in judicial elections (and thus the judiciary) and the desperate need for election reform. (see SURVEY results).
The Quie Commission -
The selection of judges seem to fall into three basic categories:
1. Nomination for appointment by the executive branch with confirmation by the senate (advise and consent). Many argue that this system preserves judicial independence, but the "human biases" still exist AND there is literally no accountability to the people once the appointment is confirmed because the only way to remove is by impeachment.
2. The election of judges by the voters. This is the current system outlined in the Minnesota Constitution, but in practice is not followed (see Newman letter). Elections provide direct involvement by the voters and accountability to them. The fear that judicial independence is sacrificed is nonsense, since the other two systems would worsen this problem.
3. Appointment-Retention System. This is a compromise between 1 & 2. Voters do not get to select their judges, but they have direct involvement on whether to retain them.
All three systems were fully debated in the 1857 Constitutional Convention, with the delegates ultimately deciding on a competitive election system. If we adopt either 1 or 3, we are admitting that our democracy is not working.
Taking away our right to vote in real elections will further alienate voters while giving more power to political elites (and media) and the bureaucracies they seek to control!
The current nonpartisan election format clearly diminishes the right of the people to give an effective and informed vote. The solution is not to abolish elections, but to improve them in a way that would increase voter knowledge of the candidates.
In order to re-enfranchise the voters and preserve the integrity of the courts, we believe judicial candidates must run in more competitive elections. There are several possibilities here that need to be examined. One possibility would be to have partisan 'basis' elections:
Partisan basis elections would offer voters;
- a realistic opportunity to cast an informed vote by revealing the political affiliations of the candidates, if any, and printing such designations on the ballot,
- a healthier diversity of viewpoints and stronger, more open elections, thus giving VOTERS the power to ensure greater judicial accountability.
Regardless of whether or not judicial candidates receive contributions from political parties, they are still, by statutory definition, considered Members of political parties as they, too, are voting citizens. Simply claiming to be "qualified" or "having the right temperament," does not tell the voters much of anything as evidenced by our survey shown above.
The partisan vs. nonpartisan election issue is not about impartiality or judicial independence, it's about which format places voters in the best possible position to influence the election process.
The Canon -
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udicial elections are held on a nonpartisan ‘basis’ and are further governed by Canon 5 of the Code of Judicial Conduct.The Canon is intended to ensure that judicial candidates are nonpartisan and free from bias and influence. Is the Canon effective in this purpose or is it merely a smokescreen written by (and for lawyers) at the expense of the voters? You be the Judge!
Let's take a look at the effectiveness and ethicality of Canon 5 prior to (and after) the 2006 amendment:
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We believe the Canon WAS and STILL IS fundamentally flawed -
1. The Canon prohibits judicial candidates from personally soliciting and accepting campaign contributions accepts to groups of 20 or more;
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However, the Canon allows judicial candidates to bypass this requirement simply by forming committees to solicit and accept campaign contributions on their behalf.2. In an attempt to justify the formation of these committees, the Canon prohibits the committees from disclosing (to the candidate) the identities of the contributors;
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However, if the candidates can’t identity their most influential contributors through the grapevine, campaign finance laws require public disclosure of all campaign contributors of $100.00 or more.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
3. The Canon permits the campaign committees to solicit and accept contributions from lawyers;
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However, permitting such contributions invites conflicts of interest and jeopardizes the impartiality of our courts.4. The Canon prohibits Judges from contributing to the campaigns of judicial candidates;
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However, to circumvent (the spirit of) this rule, many judges simply contribute using their wives names! (see Example)5. The Canon also prohibited candidates from soliciting and accepting political party endorsements;
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However, this attempt to keep politics out of the judiciary is negated by the failure to also prohibit "off-label" political support.After further review -
The recent decision, Republican Party of Minnesota vs.White now allows judicial candidates to solicit political party endorsements and to speak to disputed legal and political issues. (see Revised Canon 5.)
We strongly support this decision because it’s a step towards stronger, more open judicial elections. However, the Canon is still flawed and the nonpartisan election format virtually eliminates most of its perceived benefits to the voters.
Interesting note - As reported by the Star Tribune, 34 of the largest companies in America including Walmart, McDonalds and General Electric opposed this decision. Any guesses as to why?
Independent and Nonpartisan?
While many continue to argue that partisan politics should be kept out of the judiciary, it's already there, albeit masked. The truth is all judicial candidates and campaign contributors alike have specific political philosophies, views and agendas that are by nature partisan, with or without a party label.
Judicial candidates can (and do) receive significant "off-label" political contributions through their campaign committees, yet expect the voters to believe they will be independent and nonpartisan, if elected.
Most (if not all) of these political contributions are from individuals or political action groups which are virtually unidentifiable by the voters making it nearly impossible to gain knowledge of the various candidates, and thus, cast an informed vote.
A good example of such political contributions is the RKM&C Fund that contributed $5,000 to the Alan Page committee for re-election to the Minnesota Supreme Court. This fund is a Political Action Committee formed by the law firm of Robins, Kaplan, Miller & Ciresi. (see
campaign finance)The RKM&C law firm, coincidently, is the same law firm that received a whopping $445 Million dollars in commissions from the Minnesota tobacco law suit. It defies the laws of reason as well as the laws of human nature to suggest that NOTHING would be expected (or given) in return for political contributions to judicial campaigns.
Political contributions, in any form, simply do not fit within the definition of nonpartisan. The Code of Judicial Conduct is completely ineffective in ensuring that judicial candidates are nonpartisan and free from influence, and does not serve the best interest of the voters.
The current judicial election process is seriously flawed. It disenfranchises voters and makes a mockery of our judicial system. The State Constitution requires election of judges. The solution is to fix the process, not abolish it!
"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end, there it is."
"Judges should be elected. If people are incapable of selecting judges, they are also incapable of selecting he who appoint judges." 
"And yet not choice, but habit, rules the unreflecting herd." 
