Electing an Impartial, Independent Judiciary
By David Stowman

The court is an important symbol of both the separation of powers and the rule of law.  Maintaining its dignity is critical to its symbolic role.  Maintaining its independence is crucial in maintaining an orderly society.  Judicial elections by extension are an integral part of the judicial process.

An independent judiciary is crucial to the preservation of our constitutional system of checks and balances.  Judicial elections differ from legislative and executive branch elections and judges are different from other public officials. Judges have no constituencies and they make decisions based on the rule of law, not popular opinion. Judicial candidates must model behavior that reflects the impartiality and independence required of the judge in our society.

Within Minnesota and the MSBA culture, an independent judiciary is highly prized; but outside our state, it is not universally embraced. Unfortunately, other cultures are creeping in and influencing our citizens.  The outside influences are not always healthy.

Several years ago, the CBS news magazine “60 Minutes” ran a feature about “Justice for Sale.” They focused on a Louisiana judicial election and some contentious litigation, the outcome of which appeared to have been influenced by campaign contributions.  At the time, oil explorers and environmentalists were at loggerheads about drilling in ecologically fragile areas. The judge sitting where the case was venued was up for election.  In a hotly contested race, the petroleum executives donated handsomely and their candidate won.  Not surprisingly, they expected a return on investment.

The cameras fast-forward to the courtroom.  When the case is called, the big donors take seats at the front to remind the court that he owes his position to their generosity. The obvious implication is that the court’s decision should be favorable to his constituency. That concept is foreign to the MSBA, but you get the impression that in the oil patch, everything is for sale. John Q. Public takes these examples from tv and generalizes them.  Inevitably, some Minnesota voters accept that what’s being portrayed is a widely accepted practice.

Again, this spring, we watched another energy case unfold. This time, it played out in the United States Supreme Court.  One of the litigants was Richard B. Cheney, a former Halliburton executive and current Vice President of the United States.  As chair of the national energy policy development group, Mr. Cheney secretly met with advisors who formed his energy task force.  Because he refused to disclose the identity of those influencing national policy, several groups sought relief through the courts.  There’s nothing unusual about the conflict, but it is unusual that prior to oral arguments before the Supreme Court, one of the justices and the vice president went duck hunting together. Justice Anthony Scalia, along with his son and son-in-law, accompanied the vice president on Air Force Two and flew to Louisiana, where they met their host, Wallace Carline, the owner of an oil services company. Over the next few days, the 13 hunters shot ducks and fished.  Justice Scalia maintains that he and the vice president did not talk about their host’s special interest in the nation’s energy policy on offshore drilling, nor did they talk about the merits of the case that was coming before the Court.  However, no other litigant involved in the case was invited.

One uninvited guest, the Sierra Club, asked the justice to recuse himself but he refused to do so.  Their motion alleged damage to the integrity of the system based upon an appearance of favoritism and called into question Justice Scalia’s impartiality.  His conduct was offensive to lay people also.  Twenty of the 30 largest newspapers called for the justice to step aside.  So much for avoiding the appearance of impropriety. 

The MSBA recognizes the public’s trust in our judiciary is fragile. The public confidence in the courts’ independence, impartiality and conscientiousness is dependent upon the conduct of individual judges.  Maintaining the courts’ dignity and independence is crucial and judicial candidates must be judged on how their actions uphold those values.  Lawyers and their associations must serve as the judges of judges when judicial elections are involved. Although we cannot dictate professionalism or regulate candidates’ behavior, we can influence the culture of the election process.

The MSBA Judicial Election Committee, chaired by Steve Besser, has identified attributes the electorate should look for in electing judges and has prepared a position statement regarding exercise of free speech by judicial candidates. The Assembly has adopted them. That document sets the tone, but we are also monitoring events.

Our Fair Response Committee, chaired by former Minnesota Supreme Court Justice John Simonett, is prepared to investigate and publicly comment on inappropriate campaign tactics. A timely response by this credible group to critical issues is a stabilizing influence on the process.

As in past elections, the MSBA and local bar associations are conducting a poll of all lawyer members to determine their preference among candidates for election to the Minnesota courts. The purpose of the poll is to advise the electorate which candidates, in the opinion of the lawyer members of the association, are better qualified.

However, individual lawyers’ involvement is the most important ingredient of the judicial election campaign.  An involved, educated electorate is the key to meaningful judicial elections. Lawyers, because of their familiarity with the judicial system, have a special responsibility to educate themselves about candidates’ credentials and provide leadership by supporting qualified candidates. The most qualified deserve support.

Judicial elections are too important to ignore. It is also important that they not be highjacked by political agendas or highly financed campaigns whose contributors expect favors in return.  We as an association are dedicated to maintaining the integrity and dignity of the process.

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DAVID STOWMAN of Detroit Lakes is president of the MSBA, a certified civil trial specialist, and a top 100 SuperLawyer.  He concentrates his practice in products liability and personal injury law and related litigation.