by Steve Timmer

Nov 21, 2014, 3:00 PM

Mourning opportunities lost III

I.

In the first two installments of the story (here and here), I discussed the systemic political failure of the DFL-controlled Legislature to pass electioneering and disclosure legislation. Another such failure was not passing the Quie judicial retention election plan and putting it on the ballot for voters.

Presently, judges run for re-election, against an opponent, if there is one. every six years. Here are Sections 7 and 8 of Article VI of the Minnesota Constitution:

Sec. 7. Term of office; election. The term of office of all judges shall be six years and until their successors are qualified. They shall be elected by the voters from the area which they are to serve in the manner provided by law.

Sec. 8. Vacancy. Whenever there is a vacancy in the office of judge the governor shall appoint in the manner provided by law a qualified person to fill the vacancy until a successor is elected and qualified. The successor shall be elected for a six year term at the next general election occurring more than one year after the appointment.

The governor appoints judges, and they must run for election in the next general election, unless they were appointed less than a year before the election. Then it’s the one after that. Only occasionally, there remains an open seat with no incumbent up for election, as was the case in Hennepin County this year. Sitting judges run with the “incumbent” designation.

Partly because of a Supreme Court decision that gave a nearly green light to judicial candidates announcing their views on subjects that might appear before a court (Republican Party v. White), a case brought by, inter alia, attorney Greg Wersal, who we will hear more from later, Republicans in Minnesota began endorsing candidates for judicial office in about 2006. Wersal sought and received the endorsement for the Supreme Court from the RPM perhaps a couple of times after that. The RPM and its local units have endorsed inferior court candidates as well.

The DFL has never endorsed a judicial candidate; it is an implacable enemy of the idea.To my knowledge, an endorsed RPM candidate to unseat an incumbent judge has ever been successful.

II.

So what’s the problem, right? Well, here’s the problem:

Lillehaug v. MacDonald

You are all familiar with the bizarre candidacy of Michelle MacDonald, a Rosemount family court lawyer who wants to do away with the family court, leaving it to Jesus to sort out, I guess. She was endorsed by the Republicans at their state convention, and she virtually thumped herself on the head with a Bible for emphasis during her endorsement acceptance speech.

Greg Wersal guided her through the endorsement process. Swell.

It wasn’t long before even the Republicans were trying to put some real estate between themselves and MacDonald.

But in spite of her behavior in family court, her DWI dustup and resisting arrest, her conviction on criminal charges stemming from the DWI arrest in September, and displaying a most unjudicial temperament generally, she won 46.5% of the vote. For comparison, RPM gubernatorial candidate Jeff Johnson got 44.5%.

On learning the result, MacDonald said, like the Terminator, she’d be back.

III.

A number of Minnesota political leaders and members of the legal community saw the specter of somebody like Michelle MacDonald and the politicizing of judicial elections years ago. We only have to look at Texas, West Virginia, and next door in Wisconsin to see the consequences of big money and political influence in judicial races. There was an excellent article in the Strib by then-political reporter Baird Helgeson in September of 2013 discussing big money elections in these states, and also describing efforts in Minnesota to head the problem off at the pass.

The majority opinion in Republican Party v. White said that if a state is going to elect judges, it can’t disallow information that voters might find relevant in making their choices. One plan proposed, by former Republican Governor Al Quie and others would do this:

Judges would still stand for re-election, but would face no challengers. Instead, voters would opt to keep judges or toss them out. If an incumbent lost, a nonpartisan review committee would assemble a new pool of potential replacements and the governor would select a new one.

We’d no longer elect judges, just unelect ’em from time to time. Some twenty states already do it this way. Here’s what Governor Quie said of the idea:

“This is one of the most important issues facing the state,” said former GOP Gov. Al Quie, a board member with Coalition for Impartial Justice, a nonprofit group that has been pressing the issue for several years. “When something goes wrong, you have to be confident that you are being heard by someone who is fair and impartial. To lose that, you lose so much.”

Putting his judicial temperament hat on, Greg Wersal said this:

“I think it’s the worst fricking idea ever,” said attorney Greg Wersal, a conservative activist who has unsuccessfully challenged Supreme Court justices dating back to 1998. “They want to take away people’s right to vote. The only people who like it are the judges.”

One judge thinks it’s a good idea:

Former Minnesota Supreme Court Chief Justice Eric Magnuson said the changes would help ensure that judges are of the highest caliber and tamp down the chances for hugely expensive and bitterly partisan judicial elections that have sprung up in other states, including Wisconsin.

“Everything I have heard from the opponents of this proposal seems to be intended to insert politics more strongly into the judicial selection process so they can pick judges who would be biased,” said Magnuson, who was appointed by former GOP Gov. Tim Pawlenty.

The former Chief Justice is right.

Remember now, the DFL controlled both houses of the Legislature in 2013 and 2014. It could have put an amendment on the ballot for voters. Here’s the money quote from the Strib article:

House Speaker Paul Thissen, DFL-Minneapolis, “supports the concept, but constitutional amendments are not a priority for the 2014 session,” said DFL House spokesman Mike Howard.

There’s your failure to pay attention to systemic political issues right there.