Of the Subcommittee of the MSBA Judicial Elections Committee

Studying Statutory or Regulatory Changes
Submitted by Jon Stafsholt, subcommittee chair

This subcommittee met on two occasions and smaller groups also met to research and discuss various proposals to improve the judicial election system.   Members of the subcommittee consisted of several lawyers, one district judge, two legislators, and a representative of the League of Women Voters.  The subcommittee dealt with specific language changes in statutes or the judicial canons.   For some issues, the specific language will be distributed at the full committee meeting on Nov. 6, and some will be included in this report.   Following are the proposals.

1.     Permit judges to serve out their term of office, regardless of reaching the mandatory retirement age of 70.   This would permit a judge who is, for example, elected or re-elected at age 69 to serve until his/her term ends at age 75.  It would remove a potential election issue for a judge or judicial candidate in his/her late 60s.   It would also provide an opportunity for judges who wish to serve longer than age 70 to do so, thereby keeping experienced  and hopefully wise jurists on the bench.  The subcommittee recommends that this proposal be adopted by the full committee.

2.     Change the mandatory retirement age from 70 to 75.   This would involve a revision of M.S. 490.121 Sub. 12 to read as follows: “Mandatory retirement date means the last day of the month in which a judge has attained 75 years of age.”  Similar to #1 above, this would permit experienced judges to serve five years longer.  The subcommittee is not recommending this proposal but is referring it to the full committee for discussion.

3.     Include judges of the Court of Appeals in the merit selection process.  This would involve adding this court under M.S. 480B.01.  The merit selection commission, consisting of seven members appointed by the governor and two members appointed by the Supreme Court, would then recommend names of judicial candidates to the governor for appointment to the Court of Appeals.  The governor would not be statutorily required to appoint a nominee of the commission.   The rationale for this would be the same as for district judges; viz., to-wit: to reduce political considerations in the appointment process and to help create a more competent and independent judiciary.  The subcommittee recommends that this proposal be adopted by the full committee.

4.     Include Supreme Court justices in the merit selection process.  The subcommittee is recommending this to the full committee for the same reasons cited above.  However, there was discussion about whether the governor should take full responsibility for these appointments without review by the merit selection commission since justices of the Supreme Court are policy-makers, and the full committee may wish to continue that discussion.

5.     Change judicial canons 3 and 5 to require a judge who makes a statement during a judicial campaign that raises questions about the judge’s impartiality on an issue in a case to recuse from handling that particular case.  These proposed changes are lengthy and will be distributed at the meeting Nov. 6.  The changes are based on proposed changes to the ABA model canons, but unlike the ABA proposals, limit statements strictly to the campaign period between filing for office and the election.    The subcommittee recommends these changes for adoption by the full committee.

6.     Public financing of judicial campaigns was discussed and researched by legislative counsel.  The subcommittee believes that public financing is generally good policy, but the subcommittee has concerns  about the present fiscal environment and, therefore, is not recommending extending public financing to campaigns for statewide judicial office at this time.  Detailed proposals will be handed out at the Nov. 6 meeting in case the full committee wants to continue this discussion.

7.     Put candidates for contested judicial elections at the top the judicial ballot.  Judicial ballots are often lengthy, and many voters, seeing numerous uncontested candidates, do not complete their ballots.   If contested candidates are near the bottom of the ballot, they receive fewer votes than those at the top of the ballot.  A bill was introduced in the legislature last session on this topic and was favorably received by both houses.   However, it was not enacted into law because the bill was attached to a bill involving more controversial issues.   The Minnesota District Judges Association is in favor of this bill.   The subcommittee recommends that the full committee adopt it.

8.     Mandatory continuing legal education for judicial candidates regarding ethical issues in campaigning for judicial office.  The subcommittee recommends this to the full committee and believes the course should be approved by the Board on Judicial Standards.  A course on this topic has been offered in August of even-numbered years, but attendance is presently voluntary.

The subcommittee discussed other issues other than those listed above, but the subcommittee believes that the eight listed above are the ones which merit adoption, consideration, or discussion by the full committee.  All of the issues recommended for adoption by the full committee passed the subcommittee either unanimously or with one dissenting vote.

Respectfully submitted,

Jon Stafsholt, chair

- Last Updated 10/27/03 -