March 4, 2013 
State Representative Joe Hoppe (R-Chaska) has signed on as a co-author on H.F. 1083 that would fundamentally change the way judges are selected and elected in this state. The bill would place a constitutional amendment before voters asking them to replace traditional judicial elections, where candidates can challenge incumbent judges, with judicial retention elections. How would a judicial retention election work?
- Incumbent judges would be subject to a yes-or-no retention vote at the end of their six-year term on the bench.
- Winners of the retention vote would get another six-year term; losers of the retention vote would lose their spot on the bench at the end of their term.
- The governor, selecting from a pool of candidates vetted by a bipartisan merit selection commission, would appoint a replacement. The replacement would face a retention vote in the first election occurring more than one year after they were appointed. (For instance, if a judge were appointed in 2015, they would face a retention vote in 2016. A judge appointed in 2016 would face a retention vote in 2018.)
- A Judicial Performance Evaluation Commission would be established with the purpose of providing feedback to voters on the judge’s performance — assigning them to one of three categories (“Well-qualified”, “qualified”, or “not qualified”). Evaluations would be completed and published at the midway point of the judge’s six-year term as well as in the year of their retention election.
Supporters of the bill point to the fact that about 90% of judicial elections are unopposed today, meaning that even “unqualified” judges may be getting a free pass to another term on the bench. They also suggest that retention election will work to get money out of judicial elections, lessening the possibility of moneyed interests essentially buying a judgeship.
Opponents of the bill point out that in some ways, judicial elections lessen accountability by putting selection of judges solely in the hands of the governor. Additionally, there are concerns about the standards to be used by the Judicial Performance Evaluation Commission. The bill specifies the following as criteria to be used: ”knowledge of the law, procedure, integrity, impartiality, temperament, respect for litigants, respect for the rule of law, administrative skill, punctuality, and communication skills.”
What is excluded from these criteria include measures of a judge’s quality of work. The language of the bill specifically excludes looking at measures like how often their opinions are overturned by higher courts or statistical studies of how their sentences compare with sentencing guidelines. Such data is readily available and should be included in any comprehensive evaluation of judicial performance.
Local judicial activists have indicated preferences for candidates (legislative and judicial) who are opposed to retention elections.
I’m inclined to agree with the opponents of judicial retention elections. Retention elections do not create accountability and transparency to the extent supporters claim they do — in fact, on net, they tend to limit public input on judges. Being able to directly challenge an incumbent judge — even if rare and even if rarely successful — is important and shouldn’t have additional layers of bureaucracy placed in between the people and their preferences. Minnesota has campaign finance law that has been reasonably effective in limiting the influence of moneyed interests from influencing judicial election results and the political parties themselves have exercised restraint in turning these elections into partisan sideshows.
(Additionally, it should be pointed out that this yet another example of Rep. Hoppe backing yet another constitutional amendment while claiming not to like legislating that way.)
