Sunday, March 31, 2013

Denying Your Vote

Have you gone into the election booth Nov 6, looked at the ballot for Judges feeling that glassy eyed fugue come over you?  That fugue is being used as the basis for making changes in how we elect judges.  To change from allowing you choosing to vote for someone, to only being able to vote against a governor appointment, six years later.

This was the topic of a recent Speechless Show.  Tim Kinley shows testimony from the recent hearings at the legislature.  This is a must see to follow the issue of electing judges.

The first problem is there is still much confusion about having Judges inform us where they stand on issues.  There is a perception that having them be silent on the issues maintains a higher level of "judicial independence and impartiality".  In reality ideology is present in everyone, and partisanship will be present always.  Shirley Abrahamson (in a MN State Bar Pub) wrote:
In Republican Party of Minnesota v White, decided on June 27, 2002, the United States Supreme Court held that the portion of Canon 5(A)(3)(d)(i) (2000) of the Minnesota Code of Judicial Conduct, providing that a “candidate for a judicial office, including an incumbent judge” shall not “announce his or her views on disputed legal or political issues,” violates the 1st Amendment.  In response to the United States Supreme Court decision in White, the American Bar Association amended its Model Code of Judicial Conduct.
So if they choose, the Judges can inform us of their principles and ideology, what informs their world view.  An unlikely event, but no longer restricted by rules.

The second problem is the election process itself.  The Minnesota Constitution states that we the people directly elect our judges.
Article VI, 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.
But when election day comes around we almost universally find incumbent Judges running unopposed. Typically Judges announce retirement well before the election, giving the Governor the ability to appoint the successor. They later enter an election with the word "incumbent" beside their name, allowing for a virtual lifetime appointment if they choose.  In 2010 Washington County Judge Thomas Armstrong and his law clerk Dawn Hennessy both filed for election to "his" seat 3, followed by Armstrong withdrawing, a rather transparent attempt to "pass" the office.  Because it was a unique open seat, there were 25 candidates filing for the seat ultimately won by Tad Jude, and all the other District 10 seats were unopposed.  When asked why they did not run for the other seats, responses were that incumbency identified on the ballot made the probability of overcoming extremely low, and the subsequent threat of retaliation against their clients unacceptably high.

Two plans have been presented to address two very different ideological views.  The first is a very simple solution to that which the candidates have said was a huge issue.  Drop the word incumbency.  This continues the ability of the people to vote FOR a candidate.  Leaving the people in control.

The second plan is far more pervasive and is currently being presented as an amendment to the Minnesota Constitution to entirely change the constitution, giving full power to the Governor to appoint judges recommended from a merit selection commission. This will be dominated by lawyers, and judges, with some non-lawyers appointed by the governor. All of who will bring their partisan views to the selection process.  It eliminates voting for a candidate, but only redacting a governors appointment 6 years later.  Leaving self and special interests in control.

Minnesota Legislature: Bill seeks amendment vote to change how judges are elected
Voters would vote "yes" or "no" on an incumbent. No other candidates would appear on the ballot. If a majority of those voting on the retention question voted "no," the governor would appoint a replacement judge from a list of nominations by a merit selection commission.
Washington County District Judge Tad Jude said the proposed system would let the state's political and legal "establishment" pick judges and disenfranchise rank-and-file voters. Besides, he said, "I don't know what problem you're trying to solve."
This amendment will eliminate your current freedom to select the judges that could decide your fate if you appear before them for legal issues.  Rather than eliminating partisan influences, it will result in a very partisan biased process, appointment by the governor, a partisan politician, an unelected board of lawyers and judges who have an ideological (possibly fiducial) interest, and partisan appointees.  Senator Julianne Ortmann gives the definitive summary to the bill in a 1:18 minute presentation.

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