Minnesota State Bar Association

Report
of the
Post-White Recommendations Subcommittee
to the
MSBA Judicial Elections Committee
(Revised)

            The Post-White Recommendations Subcommittee was one of three subcommittees to the MSBA Judicial Elections Committee, formed by Committee approval on August 5, 2003.

            The charge of this subcommittee was to formulate recommendations to the MSBA for its consideration and potential implementation with respect to judicial candidate campaign conduct in the post-White (Republican Party of Minn. V. White) environment, and to evaluate and determine whether to retain or discontinue the judicial candidate plebiscite.

            The subcommittee was comprised of the following members:  Steven Besser (Subcommittee Chair), Stacy Doepner-Hove, Mark Gehan, Jean Holloway, Anne McKinsey, Peter Reyes, Barbara Runchey, Wayne Struble, Geri Williams.

The subcommittee met on Thursday, September 4, 2003 at 3:00 pm in the Board Room at the MSBA Offices, and conducted subsequent discussions via email and telephone.  The subcommittee reviewed its charges in concert with earlier recommendations contained in the Judicial Elections Task Force Report & Recommendations adopted by the MSBA General Assembly June 19, 1997 (hereinafter the “1997 Task Force Report”).  The subcommittee makes the following recommendations to the Judicial Elections Committee, for its consideration as a whole:

RECOMMENDATIONS REGARDING THE CONDUCT OF JUDICIAL CANDIDATES IN THE POST-WHITE ENVIRONMENT

1.                   The Minnesota State Bar Association should draft and publish a “position statement,” setting forth the organization’s views relative to both free speech and expectations regarding restricting such speech with respect to judicial candidates.  The position statement should be limited to one page or less, and provide a framework for acceptable speech and conduct.  The statement should take a strong stand against a candidate’s “announcing” personal views or opinions regarding controversial issues.  The statement should also “urge” citizens to hold candidates accountable to the standards enunciated by the MSBA and set forth in Canon 5 of the Code of Judicial Conduct. (See also, recommendation 5, below.)  (This recommendation is in line with Recommendation No. 4 of the 1997 Task Force Report, which suggests, “The MSBA should cooperate with the State Board of Judicial Standards, the Office of Lawyers Professional Responsibility, and community organizations to educate candidates and the public about the permissible range of candidate speech in judicial elections.”)

2.                   The position statement should be supported through the provision of both an outline of recognizable attributes useful in determining a candidate’s qualifications, and sample questions for use in interviewing judicial candidates.  These items should be made available on the MSBA website, and placed in printed pamphlet or news release format.

3.                   The MSBA should prepare and disseminate a major press release each election year, republishing the position statement.  Further consideration should be given to preparing such release as a full-page ad for publication in a statewide or several statewide papers.

4.                   The MSBA should follow through with Recommendations No’s. 2 and 3, of the 1997 Task Force Report, and petition the Supreme Court to amend Canon 5 “to permit judicial candidates to personally solicit public endorsement from individuals; and, to clarify that general appeals for financial support are a permissible form of candidate speech.”

NOTE:  The MSBA staff has advised that in the fall of 1997, MSBA petitioned the Court for these changes.  The petition was denied.  Query:  does the change in climate brought about by the White decision increase the likelihood of success for a new petition?

5.                   To the extent that the “announce clause,” Minnesota Code of Judicial Conduct Canon 5(A)(3)(d)(i), is deemed unconstitutional due to the White decision, said clause and any other parts of Canon 5(A)(3) so affected, should become “aspirational” and the MSBA should petition the Court for such change.

Alternatively, the MSBA should give consideration to adopting the amended Canons 1, 3 and 5 proffered by the ABA, as mentioned in the Stafsholt report.

6.                   The MSBA Fair Response Committee should be charged to monitor each and every judicial election.  If a candidate’s actions/speech appear in contravention of the MSBA position statement and/or Canon 5 as set forth above, the Committee should recommend the appropriate action to be taken by the organization, which action could include public denouncement of the offending candidate’s actions, removal from membership rolls, et cetera.  This may involve rewriting the scope of the Fair Response Committee’s authority and its internal guidelines.

It was also suggested that the MSBA Fair Response Committee be prepared to provide a “quick response” to unfair criticism directed at a sitting judge or candidate who declines to publish their views on political or social issues.  This issue has merit but was not fully discussed by the subcommittee.

EVALUATION OF THE PLEBISICITE

            The subcommittee was essentially unanimous in its support of the post-White recommendations set forth above.  However, the plebiscite issue proved much more trying, and although no clear consensus was reached, the majority voted to retain the plebiscite.  The actual tally: of 9 committee members, 5 voted to retain the plebiscite, 3 voted to discontinue the plebiscite and one had no preference between the two suggestions contained under recommendation 7 (below).  The impetus for this evaluation has been the cost of conducting the plebiscite, the workload placed on MSBA staff, and questions surrounding both the validity and usefulness of the results.

7.                   The MSBA should retain the plebiscite, but the process should be remodeled and conducted electronically to save on costs and cut down on actual MSBA staff involvement.  The view of this group was that the plebiscite encouraged the retention of good judges and the election of qualified judges by expressing the views of those most acquainted with the judiciary.  It should be noted that members of this group also favored MSBA’s provision of additional education materials to the public.

The dissenting group favored discontinuance of the plebiscite, and supported replacement of the plebiscite with a “comprehensive voter’s guide” for statewide dissemination.  The feeling of this group was that such a guide would be more meaningful and useful; and, that the plebiscite represents an outdated and costly personality contest with little meaningful information to be conveyed to the electorate.

8.                   If the Plebiscite is retained, the organization must follow through on Recommendations 6, 8 and 9 from 1997 Task Force Report, which recommendations require:

Recommendation No. 7  The MSBA should launch a three-stage effort to ensure a more informed electorate in judicial races, the goals of this effort should be 1) engaging the press in a dialogue about its role in the process; 2) education of the electorate about judicial seats and about the qualities of a good judge; and 3) education of the electorate about specific candidates and how they are viewed by the Association.

Recommendation No. 8  The MSBA should appoint a committee in each year in which it conducts a judicial plebiscite, the purpose of which would be to educate the media and the electorate of the plebiscite results and any endorsements.

Recommendation No. 9  The MSBA should encourage each of the state’s district bar associations to adopt similar procedures regarding the conduct of judicial plebiscites, endorsement of prevailing candidates, and education of the electorate.

9.                   If the plebiscite is retained, the MSBA must follow through on Recommendation 6 from 1997 Task Force Report, which requires that the MSBA “endorse the prevailing candidate in the plebiscite if that candidate receives at least 60% of the votes cast.”  This would require that MSBA form and fund a PAC.

Respectfully submitted,

Steven Besser

November 19, 2003