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The Selection and Retention of Judges in Minnesota

04/01/1994 / Christopher Yetka



Hon. Lawrence R. Yetka and Christopher H. Yetkal


The Minnesota Supreme Court decided two cases in 1992 which rekindled debates within the bench and bar of Minnesota as to whether the present system used to both select and retain judges should be changed.2 One need only refer to The Federalist Papers, which were used by James Madison, Alexander Hamilton, and John Jay following the 1787 Constitutional Convention to sell the United States Constitution to the colonies, to appreciate that this debate is over 200 years old. This Essay will examine the various ways judges could have been selected and how the drafters of the United States and Minnesota Constitutions resolved the issue. This Essay will also focus upon the present system of selection of judges in Minnesota and changes which would improve it.


The goal of the drafters of the 1787 Constitutional Convention was that justice ought to be administered freely and openly to all by a system of courts that would be as independent from the Executive and Legislative branches as possible and a judicial system that would build a consistent body of case law based on reason and precedent.3 This judicial system should be adminis-

* © HAMLINE J. Pub. L. & Pol'y, Honorable Lawrence R. Yetka, & Christopher H. Yetka.

  1. The Honorable Lawrence Yetka is a retired Associate Justice of the Minnesota Supreme Court who served from 1973 to 1993. Christopher Yetka is a 1993 graduate of the University of Minnesota Law School cum laude, and an associate at the law firm of Lindquist & Vennum in Minneapolis. The authors would like to thank Larissa Knapp for her research support in prepar­ing this article for publication.
  2. Page v. Carlson, 488 N.W.2d 274 (Minn. 1992); Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992).
  3. THE FEDERALIST No. 51, at 348 (James Madison) (Jacob E. Cooke ed., 1961).



tered by judges who can decide cases without fear of reprisal and who can ignore public clamor intended to influence their decisions.4 Cases should be determined not upon passion or prejudices of any moment in history, but only upon a sound legal basis.5 The creators of the Minnesota Constitution appear to have had those same objectives in mind, yet were swayed by a then-existing populist wave in 1857 to make all public officials subject to the will of the people.6 However, Minnesota found it desirable to make substantial changes over the next hundred years.7 This trend should be extended to its logical end.


A. Direct Selection By The People

A democratic direct election by the voters of all public officials appears desirable; however, it is not workable today for several reasons. First, the ballot is already too long for most voters to comprehend who the candidates are and for what they stand.8 A direct election will only work when the elec­torate is capable of making an intelligent choice, and this only occurs when the voters are informed and know the candidates for each office.9 Second, the number of voters is too large to gather in one place at one time to discuss the various issues and to listen to the candidates as they could do in the ancient Greek city-states.10 Third, the United States is not a democracy, but rather a representative republic both under the federal and state systems. The citizens of the United States entrust those elected as federal and state representatives to act on their behalf." Fourth, the public should not be able to influence the views of judges. Judges should be free to decide cases based upon the Constitution, the applicable laws, reason, and precedent, not popular will. The best arguments against direct election have already been made most adequately and elegantly by James Madison, Alexander Hamilton, and John Jay in The Federalist Papers. These men strongly argued against the direct election of judges. Alexander Hamilton stated:

  1. THE FEDERALIST No. 78, at 527 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
  2. THE FEDERALIST No. 10, at 61 (James Madison) (Jacob E. Cooke ed., 1961).

  1. See infra notes 32-39 and accompanying text.

  1. PHILIP L. DUBOIS, FROM BALLOT TO BENCH: JUDICIAL ELECTIONS AND THE QUEST FOR ACCOUNTABILITY 32-33 (1980); Madison B. McClellan, Merit Appointment Versus Popular Election: A Reformer's Guide to Judicial Selection Methods in Florida, 43 FLA. L. Rev. 529, 552-53 (1991).
  2. DuBois, supra note 8, at 32-33. Furthermore, one need only look at the 1992 ballots where there were four seats open to election in the Minnesota Supreme Court, seven on the Court of Appeals and dozens of District Court candidates. How many voters could honestly say they knew the qualifications for each of those offices — How many were even familiar with the candidates for one office?

  1. Id. at 72-106.



On the other hand, it will be equally forgotten, that the vigour of government is essential to the security of liberty; that, in the con­templation of a sound and well informed judgment, their interest can never be separated; and that a dangerous ambition often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us, that the former has been found a much more certain road to the introduction of despotism, than the latter, and that of those men who have overturned the liberties of republics the greatest number have begun their career, by paying an obsequious court to the people, commencing Demagogues and ending Tyrants.12

Also, James Madison wrote in The Federalist No. 10:

From this view of the subject, it may be concluded that a pure De­mocracy, by which I mean, a Society, consisting of a small number of citizens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of Government itself; and there is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths. Theoretic politicians, who have patronized this species of Government, have erroneously supposed, that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions."

Finally in The Federalist No. 51, James Madison states:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same fountain of authority, the people, through

  1.  THE FEDERALIST No. 1, at 5-6 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
  2.  THE FEDERALIST No. 10, at 61-62 (James Madison) (Jacob E. Cooke ed., 1961).



channels, having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties however, and some additional expence, would at­tend the execution of it. Some deviations therefore from the princi­ple must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle; first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice, which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.14

B.   Appointment By The Executive To Serve At His/Her Pleasure

A system of direct appointment by the Executive to serve at the executive's whim and fancy could not work. Such a system is a throw back to the feudal times where kings could do no wrong and judges were subject to the will of the executive only.'5 An unchecked system of appointment by the Executive violates every principal of separation of powers.16

C. Selection By the Legislature

A system of selection by the Legislature could not aid in ensuring an independent judiciary consisting of over 250 judges. One need only look at the political process involved in the legislative selection of administrative personnel to see weaknesses." Most certainly party politics would play an important role in the selection of judges under such a system.

D.         The Federal System

The Federal method of selecting judges is superior to the current method used among the various states. However, there are several weaknesses with the Federal system as well. First, there is a lack of input by the American Bar Association (ABA) membership in the selection of prospective

  1. THE FEDERALIST No. 51, at 348 James Madison) (Jacob E. Cooke ed., 1961).
  3. THE FEDERALIST Nos. 46-51, at 323-53 (James Madison) (Jacob E. Cooke ed., 1961).
  4. Geoffrey P. Miller, From Compromise to Confrontation: Separation of Powers in the Reagan Era,
    57 GEO. WASH. L REV. 401, 413-14 (1989). In this article Professor Miller lays out the separation of powers controversies created by Congressional assertions of power over administrative agen­cies.
    Id. These conflicts would be substantially magnified if it were judges being selected, and the potential for individual congressmen seeking to influence would increase. Id.



nominees.18 The ABA does not enter the process until after the Attorney General has already selected a list of prospective nominees.19 Then the ABA, through a special committee, rates the prospective nominees and confidentially reports the rating to the Attorney General.20 Second, the method of removing judges in the federal system is very cumbersome.21 Third, there is no formal evaluation process of the existing judges on a continuing basis.22 Fourth, in recent years there has been a great deal of political bickering and the use of "litmus" tests on particular subjects by the President to ensure that candidates meet certain advance criteria before they will even be considered.23 The views of prospective judges are sought even before nomination rather than looking solely at their qualifications as lawyers and judges.24 Finally, although the President nominates a candidate for a position on the federal trial bench, in many instances, the Senators of the state in which a vacancy exists actually select the candidates that the President considers.25 This frequently occurs when the Senator is of the same political party as the President.26 Thus, persons desiring appointment to the federal bench often solicit the support of the Senators from their own state, particularly the Senator who may be associated with the same political party as the President.27 When vacancies occur in the federal circuit courts, the President plays a more prominent role." But even here, powerful U.S. Senators insist upon being participants.29 Only in filling vacancies on the U.S. Supreme Court does the President remove himself from the pressures of senatorial courtesy.3°

  1. A.B.A. Standing Committee on Federal Judiciary, What It Is and How It Works 1 (1988).

  1. Id.
  2. Id. at 3-7. If the President nominates the prospective nominee, at the request of the Senate Judiciary Committee, the ABA Committee will submit its rating for the public record. Id. at 6.

  1. U.S. Const. art. III, § 1, cl. 2; Erwin C. Surrency, History of the Federal Courts 294 (1987).
  2. William Thomas Braithwaite, Who Judges the Judges? 3-12 (1971). Nowhere in the Federal Constitution or laws is there an evaluation process in place. Impeachment, resignation, retirement, and death are the only means of judicial removal.

  1. See generally Herman Schwartz, Packing the Courts (1988).
  2. Id.; Sheldon Goldman, Reorganizing the Judiciary: The First Term Appointments, 68 JUDICATURE 313, 315 (1985).

  1. Jerome R. Corsi, Judicial Politics 118-19 (1984).

  1. Id.
  2. Id. A better system would provide for a federal nominating commission that would recommend three to five persons to the President to fill a vacancy occurring.
  3. Id. at 120-21.
  4. Id.
  5. Id. at 142.



E.   The System Of Selection And Use In Minnesota

The Minnesota Supreme Court summarized the Minnesota system of se­lecting judges in the case of Peterson v. Stafford.31 The original Minnesota Constitution of 1857 provided for seven-year terms for judges.32 Since the election for other public offices had different periods of tenure, judicial elec­tions were held at times different from those of other constitutional offices, but judges were selected on a partisan basis." In 1883 the term of office for judges was reduced to six years.34 Throughout this time, judges continued their associations with political parties and were placed upon the partisan election ballots.35

This system's weakness became particularly apparent when Justice Wil­liam Mitchell, one of Minnesota's most distinguished jurists, was denied re­nomination by his party for re-election to the Supreme Court in 1898.36 Thus, in 1912 the Minnesota Legislature enacted a separate non-partisan bal­lot for judicial offices.37 Subsequent to 1912, the state had constitutional study commissions in 1948 and in 1972.38 Following these commission re­ports, the Legislature developed a comprehensive scheme for the election of

  1. Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992).

  1. Minn. Const. of 1857, art. VI, §§ 3, 4.

  1. 1905 Minn. Rev. Laws, ch. 6 (specifically §§ 153, 182). This procedure was amended in a Special Session in 1912 which caused judges to be nominated upon a separate nonpartisan ballot. 1912 Minn. Gen. Laws Spec. Sess., ch. 2, § 181.
  2. 1883 Minn. Gen. Laws, ch. 3, § 1.

  1. See supra note 33 and accompanying text.

  1. Hiram F. Stevens, 1 History of the Bench and Bar of Minnesota 65-71 (1904).

  1. 1912 Minn. Gen. Laws Spec. Sess., ch. 2. The court in Peterson addressed this issue and stated:

As early as 1857, those who attended the two separate state constitutional conventions devoted considerable debate to the process by which the judiciary was to be selected and concluded that the now-recognized goal of distinguishing judicial elections from elections for other offices could best be accomplished by providing judges with 7-year terms. In practical effect, because the length of term differed from that of other elec­tive offices, judicial elections were held at times other than those routinely scheduled for those other offices. However, after 1883, when the term was reduced to 6 years, the difficulties associated with partisan judicial elections became more evident. Thus, the selection debate resurfaced in significant respects in 1912 when the legislature enacted separate, nonpartisan ballot legislation; . . . .

Peterson v. Stafford, 490 N.W.2d 418, 420 (Minn. 1992) (footnotes omitted). The court continued:

In Minnesota, there were two constitutional conventions, one held each by the republi­cans and by the democrats. The product of those separate meetings were two constitu­tional drafts which, through the process of compromise and negotiation, were consolidated and then submitted to the voters for ratification.

490 N.W.2d at 420 n.10 (citation omitted).

The Peterson court further cited, "Minn. Const. art. 6, § 3 (1857) provides: 'The judges of the supreme court shall be elected by the electors of the state at large, and their term of office shall be seven years, and until their successors are elected and qualified.'" 490 N.W.2d at 420 n.11.




new judges.39 The 1972 report went so far as to recommend adoption in Minnesota of the Missouri plan.° These various changes propelled the Peterson case before the Minnesota Supreme Court in 1992. The Peterson court stated:

The need for a competent, impartial, and independent judiciary creates, however, the potential for conflicts of interest when the judicial office is an elective office. These potential conflicts arise between the demands of an election process and the judicial impartiality required to decide cases free from political maneuvering. To counter this potential conflict, the 1912 Legislature decreed that elections for judicial office be nonpartisan.

This inherent tension in the judicial election process was again recognized in a committee report to the 1972 Constitutional Study Commission, which urged the adoption of a retention-type election

for incumbent judges. The report stated:

The committee also believes that additional qualified lawyers will seek appointment to judicial office under such a method of selection. Under the present system, too many qualified and competent lawyers who are successful practitioners decline to be considered for fear they will give up their practice only to be defeated by a politician with a popular name at some future election.

In its report, the committee testified to the difficulties facing judges

who seek reelection and the restrictions placed on their candidacy: No one debates the desirability of having judges responsive to the people. Nevertheless, the public finds it distasteful for judges to become embroiled in politics. They have no platform, they can make no promises, and they must remain completely uncommitted to other persons in politics or any other area of civic activity. It is unbecoming for judges to become so deeply immersed in civic matters that they may be disqualified to consider the merits of controversial issues. The method of retention at election as pro-

  1. See 490 N.W.2d at 422 nn.15-16.
  2. MINN. CONST. STUDY COMM'N, supra note 38, at 23. The Peterson court stated:

The Missouri plan has been simply defined as follows: Under this plan, when a vacancy in a judicial office occurs, a non-partisan judicial commission submits three names to the governor who appoints one of them to fill the vacancy. After holding office for a limited period, the name of the appointee is submitted to the electorate without a competing candidate on the question: "Shall Judge — be retained in office?" If a majority of the votes cast on the question are in the affirmative, the appointee remains in office for a new and full term. If the vote is in the negative, the process is repeated.

490 N.W.2d at 422 n.17 (citing Maynard E. Pirsig, The Proposed Amendment of the Judiciary Article of

the Minnesota Constitution, 40 MINN. L REV. 815, 838 (1956)).



posed in Section 7 [as an amendment to article 6, the judiciary article] would allow the public to reflect favorably or unfavorably on a judge's competence in office and, thus, retain ultimate control of the judiciary in the hands of the voting public.41


From a beginning with the Federal Constitutional Convention in 1787 to the present, the federal system should be the basis for the selection of judges in Minnesota. Particularly, the federal system should be used in the selection of judges to fill the vacancies within the Minnesota Court of Appeals and the Minnesota Supreme Court. As stated previously, the present system of selec­tion of federal judges provides for nominations for vacancies by the President of the United States subject to confirmation by the United States Senate.42 Federal judges serve on their good behavior, usually for life,43 subject to certain exceptions permitting federal judges to take senior status and retire from active participation on the bench.44

In The Federalist No. 78, Alexander Hamilton strongly argues that judges serve during good behavior.45 Furthermore, he argues that judicial decision making be separated from the Executive and Legislative processes.46 Finally, he urges that judges be empowered to declare statutes unconstitutional. For as Hamilton says, "The interpretation of the laws is the proper and peculiar province of the courts.47 Specifically, he argues:

If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consider­ation will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty.48

Finally Hamilton states:

That inflexible and uniform adherence to the rights of the constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appoint­ments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power

  1. 490 N.W.2d at 422-23 (citations omitted).

  1. See supra notes 18-28 and accompanying text.

  1. U.S. CONST. art. III, § 1, cl. 2; DuBois, supra note 8, at 25; Corsi, supra note 25, at 121.
  2. 28 U.S.C.A. § 371 (West 1993).
  3. THE FEDERALIST No. 78, at 522 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  1. Id. at 523.
  2. Id. at 525.
  3. Id. at 526-27.

of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.

There is yet a further and weightyer reason for the permanency of the judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole there can be no room to doubt that the convention acted wisely in copying for the models of those constitutions which have established good behaviour as the tenure of their judicial offices in point of duration; and that so far from being blameable on this account, their plan would have been inexcuseably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excel­lence of the institution.49


When examining these various recommendations concerning reforma­tion of the judicial selection system, the issue becomes: what is the best method to implement such recommendations? Minnesota should use the federal system as a basis, with certain improvements, for a new judicial selec­tion system. This belief is strengthened by one author's experience having served in both the Legislative and Judicial branches of the government, and having held public office for over forty-two years. While the belief that the federal system of selection is most compelling for the Minnesota Supreme Court and the Minnesota Court of Appeals, there are strong arguments for its use in the selection of trial judges as well. While trial judge's decisions are subject to judicial review, and although trial judges seek election in smaller voting districts and may be more familiar to the voters, nothing will, as Ham­ilton says, lead to a more independent judiciary than lifetime tenure.5.0 Great emphasis, therefore, must be placed upon the initial selection of judges. It is very important that we encourage and select the ablest lawyers and persons to hold judicial posts. This is in line with Minnesota's own constitutional study commissions.51

The selection of the most competent judiciary can best be accomplished by having a permanent non-partisan Nominating Commission on both a state and district court level. There are several ways this Commission could be selected. The technique and detail could be left to statute; however, a Nominating Commission should include representatives of the Governor, who will eventually make the appointment. The Commission should include the chief judge of the district, or his designee, when dealing with selection of district court judges. On the state level, the Chief Justice of the Supreme Court or his designee, should be included as well as the state public defender, a prosecuting attorney, and representatives of the Bar Association, both within the district and, when the appointments are statewide, by the State Bar Association.

Once the Nominating Commission meets, it should make recommendations of at least three or at most five nominees to the Governor prior to the appointment being made. The Minnesota State Bar Association should then evaluate the nominees selected by the Governor by ranking them, like the federal system, on the basis of whether they are exceptionally well qualified, well qualified, qualified, or not qualified. Finally, the nominee would appear before the Minnesota Senate for confirmation.

  1. Id. at 529-30.
  2. See supra note 48 and accompanying text.
  3. MINN. CONST. STUDY COMM’N,  supra note 38, at 24.



Because lifetime tenure is so permanent, some form of evaluation process must be installed to review the performance of a judge after he or she has been in office for a period of time. One possible way to review would be to have the Nominating Commission, in existence at the time of evaluation, review the performance of a particular judge and file an evaluation report with the state Senate. Furthermore, a removal system, similar to the evaluation system proposed, could be implemented rather than having removal only by impeachment. Alternatively, some form of the Missouri plan could be adopted in Minnesota.

The role of appellate judges is quite different in the judicial system than trial judges for several reasons. First, one of the goals of appellate review is to ensure judicial honesty at the trial court level and to protect litigants from an arbitrary trial judge. If a trial judge knows that his decision can be appealed, he or she may be more likely to think twice before making an arbitrary decision.52 Second, the appellate process results in the adoption of a uniform system of law, or common law, in which previous decisions regarding a similar set of facts usually results in a similar decision being made.53 Because trial judges are subjected to the judicial scrutiny of appellate judges, any removal system should be more protective of appellate judges than trial judges, if any difference can be justified.

The arguments and logic of the writers of The Federalist Papers are as sound today as they were 200 years ago. Minnesota should change its system now before it is too late. In many states today, a pattern is developing where candidates with well-known names, all too frequently with little qualifications for the office sought, are successful in garnering voter approval.54 Even worse, those candidates with large sums of money, either through their own resources or those of large economic forces, are also selected because of their ability to conduct expensive media campaigns.55 Mediocrity, as well as securing judges who are answerable to large pressure groups, should not be the goals of Minnesotans. If this state truly desires an independent and intelligent judiciary with the legal skills necessary to render justice freely, it is time for a change in the judicial selection system. The, goal should be that of article I, section 8 of the Minnesota Constitution, which states, “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property, or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.”56

  1. CORSI, supra note 25, at 270; ROBERT A. CARP & C.K. ROWLAND, POLICYMAKING AND POLITICS 8-14 (1983) (stating that as appellate courts' guidelines become more clear, trial court decisions are shaped to fit those guidelines).
  3. DuBois, supra note 8, at 88.
  5. MINN. CONST. art. I, § 8.