Judge races could soon get nasty

10/24/2005

BY BILL SALISBURY
Pioneer Press

In many states, supreme court candidates run hardball television ads accusing their opponents of releasing child molesters from prison and other unsavory behavior.

Two candidates competing for an Illinois Supreme Court seat last year broke a national record for judicial campaign fundraising by amassing $9.3 million for their race.

In Texas, judges solicit campaign contributions from the companies, lawyers and law firms that have cases before them. Critics say justice is for sale there.

Minnesota has escaped those trends. So far.

But recent court rulings open the door to turning Minnesota’s traditionally nonpartisan judicial elections into the kind of big-bucks political battles that are common in other states.

Two federal court decisions in three years have struck down state regulations that prevented Minnesota judges and judicial candidates from seeking party endorsements, soliciting campaign contributions, and expressing their views on legal and political issues during their campaigns.

While those rulings will make it possible for judicial candidates to wage expensive, partisan campaigns, lawyers and judges on both sides of those issues don’t expect Minnesota court races to change radically in the next year or two. They agree that most Minnesota voters wouldn’t stand for it.

But down the road, many in the legal community expect to see more expensive, partisan and hard-hitting judicial politics emerge. All it might take to open the floodgates is a judge to issue an explosively unpopular decision — ruling, for instance, that the state must grant marriage licenses to same-sex couples or, should the U.S. Supreme Court overturn Roe v. Wade, banning almost all abortions in the state.

Then, angry voters might rise up and organize to throw the offending judge off the bench at the next election.

What’s wrong with that? asks Golden Valley attorney Greg Wersal.

“I don’t think you should be alarmed (about contested judicial elections) unless you find the thought of democracy alarming,” he said.

Wersal is a former state Supreme Court candidate who, along with the state Republican Party, successfully challenged Minnesota’s campaign restrictions on judicial candidates. In 2002, the U.S. Supreme Court struck down a state rule that prohibited candidates for judgeships from expressing their views on legal or political issues, ruling the ban violated First Amendment free speech rights.

In a related case last year, the 8th U.S. Circuit Court of Appeals overruled state regulations that barred judicial candidates from seeking party endorsements, attending political conventions and personally soliciting money for their campaigns.

By next Monday, the state will petition the U.S. Supreme Court to hear its appeal of the 8th Circuit ruling.

The case is attracting national attention because 37 other states also elect judges, and state officials want to know how they can regulate those elections.

“The rules now are uncertain. Nobody knows the game,” said former Chief Justice Tom Phillips of the Texas Supreme Court, a Republican campaign-finance reform advocate who is handling Minnesota’s appeal. “We think the (U.S.) Supreme Court needs to take this case and settle the issue.”

To Wersal and his allies, the issue boils down to this: Should voters have the same kinds of information and political party recommendations about bottom-of-the-ticket judicial candidates as they do for legislative and executive branch candidates at the top of the ticket?

The current system is “just a farce,” Wersal said. Governors appoint the majority of judges to the bench, and then they stand for re-election. The struck-down regulations prohibited lawyers who challenged those judges from expressing their views on issues, seeking party endorsements and personally raising money — “all the things you would normally do to try to get elected,” Wersal said.

“All I want is free and fair elections,” he said.

So did Minnesota’s founding fathers, said Wersal’s attorney, Bill Mohrman. The state Constitution they adopted in 1857 called for electing, rather than appointing, judges so voters could remove from the bench anyone who “tried to force slavery down their throats.”

Mohrman said the federal court rulings protect the right of voters to fair judicial elections and the right of free speech for candidates.

Most of Minnesota’s legal establishment doesn’t want judges to become politicians in black robes. The Minnesota State Bar Association and a district judges organization argue that the free speech rights of judicial candidates are not as important as the right of litigants to a fair trial by an independent judge.

Minnesota Chief Justice Kathleen Blatz said no one should have to worry that her case will be heard by a judge affiliated with her opponent’s political party, or that the judge will have taken a position on the issue before hearing the facts in the case, or that the judge may be influenced by campaign contributions from interests on the other side of the issue.

“Every Minnesotan needs to know that the courts are not the battlefields of partisan politics but are safe refuges for people experiencing some of the most troubling issues of their lives,” Blatz, a former Republican legislator who will retire next year, wrote in a 2000 letter to the state GOP saying she would not accept its endorsement.

Endorsements and politics are facts of life for judges in many other states. Supreme court candidates set fundraising records in nine states last year, with million-dollar races becoming increasingly common, according to a report by the Justice at Stake Campaign, a nonpartisan judicial watchdog organization. In Minnesota, by contrast, Justice Alan Page and his opponent spent a combined $37,562 on their campaigns for the lone contested Supreme Court seat in 2004.

Television ads have become the rule in most state supreme court races, but not in Minnesota. It is one of just two states (North Dakota is the other) where high court candidates did not run TV commercials in 2000 or 2004.

Since 2000, when it started endorsing judicial candidates, the Minnesota Republican Party has backed just a handful of would-be judges and spent little money on their campaigns. Party leaders have not decided whether they will endorse more aspiring judges next year, but attorney Eric Kaardal, who represented the state GOP in the Wersal case, predicted the party will get more involved. During the past two elections, he served on the party’s judicial nominating committee, which reviewed the rulings of all the appellate judges up for election and reported their findings in a guide for voters.

“With the political parties involved in the process, I think we’ll have greater oversight and review of what our judges are doing,” Kaardal said.

The state Democratic Party has not endorsed judicial candidates in the past, and it won’t in the future if the party’s new state chairman, attorney Brian Melendez, gets his way. He thinks Minnesota has a “first-rate judiciary” now, and politicizing it even more is “a horrible idea.”

“I do not want to see us become another Texas, where judges are bought and sold by rich politicians,” Melendez said.

Meanwhile, the state bar association, at the state Supreme Court’s request, on Wednesday will start reviewing what, if anything, the high court can do after the federal appeals rulings to regulate future judicial campaigns. Attorneys Steven Bresser and Mary Vasaly, the co-chairs of the bar association’s judicial election committee, said the association plans to submit recommendations to the justices in time to implement new rules and other possible changes before the 2006 elections.