Report to the Judicial Elections Committee
Minnesota State Bar Association
Model System Sub-committee

A.        Subcommittee Proceedings

The following is the report of the subcommittee of the Judicial Elections Committee charged with responsibility for recommending to the Committee a model system for judicial appointment and retention, to be considered without regard to implementation of the system under current state law.

The subcommittee met on September 24 and considered reports on each of the five basic systems for judicial appointments/retention now in effect in our federal and state court systems, the ABA model and the model set forth in the Senate bill authored by Senator Neuville.  The reports considered the advantages and disadvantages of each of the different systems.  After extensive discussion, the subcommittee unanimously determined that public election of judges should not be a part of the ideal system because of the corrosive effect of public elections on the independence of the judiciary, particularly in light of the recent U.S. Supreme Court decision in RPM v. White.  We concluded that a model system would provide that the Governor make the initial appointment from a list of candidates identified by a merit selection committee of credible, neutral, non-partisan and diverse members.  Questions were left open as to whether the Governor's appointment should be subject to some kind of legislative confirmation, what the term of office should be, and whether there should be some kind of post-appointment reselection process.  Discussion on each of these subjects centered around the critical importance of maintaining the independence of the judiciary on the one hand, and on the other hand, providing for some kind of process for removing a judge from the system whose judicial performance falls demonstrably short of expected standards of competence and/or judicial conduct.

At the second meeting on October 22, we began with a review of where the first meeting left off and heard a proposal from Representative Lipman set forth in his Bill HF 40 which provides for a constitutional amendment that would vest the authority in the Governor to appoint judges for a three-year term with no public election.  After discussion of Representative Lipman's proposal, a proposal incorporated in a bill authored by Representative Pugh, and the systems prevailing in various states, including Colorado and New Jersey, and the federal system, the subcommittee resolved to propose to the full committee the following.

B.         A Model System

            A model system for judicial selection/retention in Minnesota would begin with the appointment by the Governor from a list of candidates presented by a Merit Selection Committee, as the process now provides.  Unlike our present system however, the subcommittee

recommends that the Merit Selection Committee make recommendations for appointments to vacancies on the Court of Appeals and the Supreme Court, and the Governor be required to appoint a candidate recommended by the Committee for District Court appointment, but the Committee's recommendation for Appellate Court appointments be advisory only.1  There would be no legislative confirmation for any appointment.2  Upon the expiration of five years, the performance of all judges shall be subject to review by a Judicial Review Commission would review the judge's performance with respect to conforming to the canons of the Code of Judicial Conduct and competence to continue to serve in office.3  If a majority of the Judicial Review Committee in attendance at a meeting called for the purpose of voting on retention of the judge votes to retain the judge in office, the judge shall serve until age 70, or earlier retirement.4

Throughout the judge's term in office, the judge's performance shall periodically be subject to private and confidential review in accordance with a procedure established by the Minnesota Supreme Court.5

The Judicial Review Committee will consist of approximately fifteen members, one-third appointed by the Governor, one-third appointed by the Legislature and one-third appointed by the Supreme Court.  Those members of the Committee appointed by the Supreme Court shall not participate in any way in the Committee's proceedings relating to retention of the Supreme Court appointee.  The committee should be non-partisan, diverse, and have representatives from each of the ten judicial districts.  A minimum of two-thirds of the committee shall be learned in the law.  The term of appointment should be six years and initially appointed for terms so that approximately one-third of the committee shall be appointed every two years.

Edward C. Stringer

ECS:law

1.  The Merit Selection Committee process has worked exceedingly well in Minnesota over the past several years, in part because of the diligence of the Committee in identifying and recommending candidates of high quality, and in part because recent Governors, with rare exception, appointed district court judges from the Committee's recommended list.  The subcommittee believes that requiring the Governor to appoint from the recommended list will assure the continuation of quality trial court appointments.

Appellate Court appointments are different however, for two fundamental reasons:  first, rulings of the appellate courts often raise issues of public policy, and to fetter the Governor's exercise of discretion in matters that affect policy seems contrary to constitutional intent.  Second, vacancies on the appellate courts are infrequent, unlike trial court appointments, and the Governor therefore has a greater opportunity to carefully consider and determine the person most qualified to fill the appellate seat.  For these reasons, the recommendation of the subcommittee is that the Commission's list of recommended candidates for appellate court appointment be advisory only.

2.  The subcommittee recommended against legislative confirmation for three reasons:  first it is inconsistent with the present appointive process where the Constitution vests sole authority in the Governor to appoint, evincing a broad delegation of power, and makes no reference to legislative confirmation, unlike the federal Constitution; second, the Merit Selection Committee serves much of the same function as that of legislative confirmation in that it is a body representative of diverse geographic and social interest of the state; third, the federal system of Senate confirmation is hardly a model of non-partisan, efficient system for judicial appointment.

3.  The subcommittee recommends a review at the end of five years based on its belief that by that time the judge will have sufficient time in office to substantively measure his/her performance, but if performance is such that in the opinion of the Judicial Review Committee the judge should be removed, it should happen as early as possible.  The review and recommendation for continuation in office or removal should be based upon narrow standards such as competence and the judge's conduct in office relating to the Code of Judicial Conduct, and should not be based upon ideological standards or general popularity of the judge's rulings.

The subcommittee is aware that this represents a major departure from the present system constitutionally requiring judges to run for office in the first general election more than a year after the judge is appointed.  The subcommittee considered retaining the current public election system, but was unanimously of the view that the important principle of judicial independence is far better served y placing responsibility for retaining or removing a judge from office in the hands of a carefully selected, diverse, non-political body, where the influences of politics and ideology are not a party of the determination as to the judge continuing in office.  At the same time, the need for a checkpoint where the judge can be removed if his/her judicial performance fails to meet the standards of competence and/or conduct set forth in the Code of Judicial Standards is provided.

4.  The principle here is that if the Judicial Review Committee votes to retain a judge in office, the judge serves until reaching the current retirement age of 70 without further reappointment.  Judicial independence is served by not subjecting the judge to a retention process, but at a time that the judge's qualifications to continue to serve in office have been reviewed by the Judicial Review Committee and confirmed.

5.  Considered here is the importance of the process for assisting the judge in reaching/maintaining high standards of judicial performance, and it is not intended as a part of any kind of disciplinary procedure.  Consideration of who should conduct the review and whether matters divulged by the judge in the course of the review could be subject to Board of Judicial Standards proceedings should be addressed in the rules establishing the procedure.  It should be noted however, that it would be inadvisable for the Judicial Review Committee to be a part of the performance review, at least for the first five years of the judge's term in office before the Judicial Review Committee votes on retention.

- Last Updated 11/20/03 -