LWVMN Testimony on Judicial Selection

Good afternoon, Chairs Moua, Rest, Foley and committee members and guests:

My name is Helen Palmer. I am the immediate past president of the League of Women Voters of Minnesota and currently cochair of the judicial study committee. I also served on the Citizens Commission for the Preservation of an Impartial Judiciary (the Quie Commission). I am not a lawyer. Like LWV members everywhere I am a volunteer. As you know, the League of Women Voters is a nonpartisan and political organization that encourages the informed and active participation of citizens in government.

The work of LWV is about safeguarding democracy. We are involved in the issue of judicial selection in Minnesota because judicial independence is so vital, so critical to democracy. As former US Supreme Court Justice Sandra Day O'Connor says in the February issue of the LWV National Voter, "Judicial independence does not just happen all by itself. It is tremendously hard to create, and easier than most people imagine to destroy." The League of Women Voters believes that judicial independence is under threat now in Minnesota.

Back in 1997 LWV Minnesota did a state study and member consensus on judicial selection in the state, and concluded that by and large the system worked well. Minnesota's judiciary was and is still highly respected for its independence and for its quality. We recommended a handful of minor changes (such as requiring the Governor to appoint judges from the names recommended by the Commission on Judicial Selection), but we did not think any major reform needed to be made. The White decisions changed all that by opening Minnesota's judiciary to partisan politics.

Politicizing the judiciary runs counter to the principles of the League of Women Voters. Ninety-five percent of our members responded in the 1999 consensus that they did not believe judicial candidates should be allowed to accept endorsements from political parties. The League works to protect citizens’ rights such as the right to a fair trial-- that is, the right to be heard before a judge who is impartial. The League of Women Voters believes in upholding the Constitutional separation of powers, and we think it is dangerous to blur legislative and judicial boundaries, as can now happen after the White decisions. We must not allow judges to turn into legislators, taking public positions on issues and appealing to a particular constituency. Finally, the League of Women Voters believes that a politicized judicial system cannot help but lead to distrust of government--a cause for great concern in a democracy.

So in light of the White decisions the Minnesota League of Women Voters decided to take another look at our position on judicial selection.

In order to get a broad view of the subject and to understand the practical implications of White, our League study committee interviewed 11 distinguished guests: Supreme Court Justice G. Barry Anderson, then Appellate Court Judge Chris Dietzen, Republican Party activist Annette Meeks, State Bar Association President and chair of the DFL, Brian Melendez, District Court Judge Susan Miles, attorney Bill Mohrman (who argued the White case), then State Senator Tom Neuville, Supreme Court Justice Alan Page, former Governor Al Quie, District Court Judge Michael Savre, trial lawyer and former head of the Commission on Judicial Selection, George Soule.

For several months we discussed the issues. We considered the federal model which would involve some kind of confirmation by the legislature, but rejected it because of the high potential for partisan battles. We also rejected the purely appointive model because it eliminates voters from the process: the committee agreed that the voters should have the final say in whether a judge stays on the bench or not. (A poll of 800 Minnesotans sponsored by Justice At Stake taken January 15 tells us that people overwhelmingly agree.) Ultimately the committee chose to support a merit retention system as the best and fairest model for Minnesota. The committee favored

initial appointment by the governor who would be required to choose from a list of candidates forwarded by a nominating commission;
an end of term evaluation of the judge's performance by an evaluation commission, results to be made available to the public, followed by a
retention election.

Our report, issued in November, was reviewed and discussed by members in over 30 local LWV chapters as well as many LWV members at large. In many cases LWV chapters sponsored public forums as well. Responses to the committee recommendation were due on Friday, February 1, and have been tabulated. An official position statement on judicial selection awaits board approval in mid-February; however I can tell you that the committee's proposal for merit retention received over 99% approval by LWVMN members.

This extraordinary response did not emerge without a lot of discussion and questioning. A frequent question had to do with the performance evaluation commission: who would commission members be, who would name them and how would they make their decisions? The committee recognized the enormous power of this commission. Our report states that this commission must be broadly based and nonpartisan; we believe such a commission would not be viewed as legitimate if it did not include extensive citizen involvement.

Retention elections also raised many questions, for example: isn't a retention election subject to the same partisanship, special interest group influence and money as a contested election? Don't retention elections invite attempts to throw a judge out because of an unpopular decision? As Justice Page has pointed out, in a retention election there is a "dramatic disincentive" for any group trying to defeat a judge, since that group would have no control over who would replace the defeated judge. As for the role of money in retention elections, our report points out that the amount of money raised in retention election states pales in comparison to that raised in contested election states. In 2006 in the states which have retention elections, only 3 of the 38 state Supreme Court justices up for retention raised any money at all. In that same year in contested election states over $155 million was raised for Supreme Court candidates.

It has been a pleasure for the League of Women Voters of Minnesota to work on the vital subject of judicial selection. We are pleased to offer our report to you, and look forward to further discussion as the issue develops.

Copies of the report are available on-line or at the LWVMN office, 550 Rice Street, St. Paul. The report includes summaries of interviews.

Testimony on Judicial Selection

Given February 4, 2008 by Helen B. Palmer

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