Since the White cases, many of the judges are scared to death by the prospect of elections. They are afraid that if they make one unpopular decision, they will be voted out of office. They also raise the specter of money in elections tainting judicial independence and impartiality. Despite the fact that they admit that this parade of horribles has not occurred in Minnesota, they say that we need to act now to pass a constitutional amendment that takes away the public's right to vote for judges.

Greg Wersal has called the proposed amendment "constitutional malpractice." Greg testified before the Legislature that the proposed constitutional amendment will create a judiciary almost totally unaccountable to the public. He believes that the proposed constitutional amendment is being proposed, not to serve the interests of the public, but to serve the interests of the judges so they can keep there positions of power.

The constitutional amendment would create a system where all judges would be appointed to their positions. There is no check on the Governor's appointment power. So the Governor could appoint -- and most likely will appoint -- his friends to these positions. Whether these "friends" are personal friends or ideological friends, this certainly does not sound like a way to get an independent and impartial judiciary. Why excluding the public from choosing judges enhances "impartiality" no one can explain.

After the judge has been appointed he will stand for a retention election where the public can vote to retain the judge or to remove the judge from office. If a judge is removed, the Governor would appoint a replacement. The appointed judge would be in office for 3+ years before facing his first retention election. Thereafter, the judge would stand for a retention election every 8 years. Judge Susan Miles of the District Court Judges Association testified at a recent legislative hearing that in 3+ years an appointee "could do a lot of damage."

It gets worse. The bill also creates a Judicial Performance Commission which is tasked with evaluating a judge's performance and the Commission's rating will be reflected on the ballot with the judge's name. The "purpose" of this is to give the public information they need in deciding whether to vote to retain or discharge the judge. The Commission, in evaluating the judge, may consider the judge's integrity, temperament, administrative skill, and . . . among other things, the judge's punctuality. The Commission, by the explicit language of the bills, may not evaluate judicial performance based on the judge's decisions which are "subject to standard appellate processes." Make sure you understand this. A decision of a judge that can be appealed is not to be considered by the Commission when evaluating the judge's performance. Almost all of a judge's decisions are subject to appeal. For example, when a judge sentences a criminal, that sentence is subject to appellate review. So we could have a judge that refuses to follow the sentencing guidelines, established by the Legislature, and puts sex offenders on probation and back onto the streets, instead of sending them to prison -- but the Commission could give this judge a "highly qualified" rating because he has integrity, judicial temperament .. and is punctual! We could have a judge whose decisions are so bad that they are repeatedly overturned on appeal, yet the Commission could not consider this. In other words, the very thing the public would want to know, and expect a "performance commission" to tell them, will be kept from the public. Needless to say, this is not how you create judicial accountability.

Please contact your state legislators and tell them you oppose the proposed constitutional amendment. Tell them you do not want to lose your right to vote for judges. Tell them that the bill will lead to an unaccountable judiciary. If you wish to read the bills, they can be found at the website of the Minnesota Legislature under House File #224 and Senate File #70.