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S.F. No. 1082 - Judicial Selection Constitutional Amendment (Third Engrossment)
 
Author: Senator Ann H. Rest
 
Prepared By: Alexis C. Stangl, Senate Counsel (651/296-4397)
 
Date: March 24, 2014



 

This bill proposes an amendment to the Minnesota Constitution modifying the process for selecting judges and includes conforming statutory changes.  It establishes a system of retention elections, rather than contested elections, under which a judge would be initially appointed by the governor and then eligible to file for a retention election to the office.  In addition, the governor would be required to fill vacancies based on the list of nominees received from the Commission on Judicial Selection (under current law, the commission recommends nominees but the governor is not required to appoint someone from the list).  All sitting judges would be evaluated by a judicial performance commission once during their term and once near completion of the term.  Specified evaluation results are required to be made available to the public.

Article 1

Constitutional Amendment

Section 1 contains the language of the proposed constitutional amendment.  Under the amendment to Article VI, section 7, a judge’s retention, instead of election, would be determined by the voters.  Language is added requiring a judicial performance evaluation commission to evaluate in a nonpartisan manner the performance of judges.  Under the amendment to Article VI, section 8, the governor would be required to appoint a person to fill a vacancy from a list of candidates nominated by a judicial selection commission.  Language referring to election of successors is stricken, consistent with the new retention election and appointment process.

Section 2 contains the constitutional question and title for the question that would be submitted to the voters.

Section 3 contains transition language for judges currently seated or elected when the constitutional amendment is adopted.  The term of a judge at the time the act becomes effective is not changed by the bill.

Article 2

Statutory Provisions

Section 1 provides that for purposes of Minnesota’s campaign finance reporting law, a ballot question does not include a judicial retention election.

Section 2 provides that a judge seeking to be retained in office is considered a candidate for the office.

Section 3 specifies that an election includes a retention election.

Section 4 modifies campaign finance registration requirements.  Registration would be required within three days after a covered entity makes a contribution or expenditure in excess of $750 to advocate the retention or defeat of a judicial candidate.

Section 5 specifies campaign finance reports must be filed 42 days and 10 days before the retention election in a general election year when a political committee, political fund, or party unit spends more than $750 to advocate for the retention or defeat of a judicial candidate.

Section 6 modifies existing judicial election law to reflect the retention election process.

Sections 7 and 8 modify the law governing official ballots, consistent with the change to retention elections.

Section 9 contains the retention process.  A judge seeking to retain office must file an affidavit of candidacy.  If a majority of those voting on the question vote “yes,” the judge is retained in office.  If a majority vote “no,” then on expiration of the judge’s current term a vacancy exists. A judge who loses a retention election may not be appointed to fill the resulting vacancy.  Language is included specifying that a judge seeking to retain judicial office is considered a candidate and a judicial retention election is not a ballot question.

Section 10 adds Supreme Court and Court of Appeals judges to the judicial selection commission process.

Section 11 makes conforming changes to the selection commission statute,  consistent with the addition of appellate court judges.

Section 12 requires the governor to appoint a judge from the list submitted by the Commission on Judicial Selection.

Section 13 provides that judicial retention elections must be held consistent with the procedures and law for the administration of state general elections.

Section 14 establishes the Judicial Performance Evaluation Commission, which would be required by the constitutional amendment in the bill to evaluate the performance of judges during their term in office.

Subdivision 1 establishes the commission as an independent body not subject to the direct control of any branch of government.

Subdivision 2 states that the commission must administer an evaluation process for judges.  The process must be designed to assist voters in evaluating performance of judges, to help judges improve and promote public accountability of the judiciary.

Subdivision 3 provides for the composition of the commission and the appointment of commission members.  It would consist of 24 members who must be U.S. citizens and reside in Minnesota and not a sitting judge or public official.  An attorney may not be appointed to the commission unless the attorney has been admitted to practice law in Minnesota for at least five years.  Members of the commission would be appointed as follows: 

  1. the Governor appoints eight members, no more than three of whom may be attorneys, who serve on the commission until the governor who made the appointment leaves office or for a four-year term, whichever comes first;
  2. the Supreme Court appoints eight members; the chief justice must designate one to serve as chair; no more than four may be attorneys and the appointees serve a four-year term; and
  3. the Legislature appoints eight members, no more than four of whom may be attorneys; legislative appointments are made sequentially by the Speaker of the House, the minority leader of the House, the Senate majority leader, and the Senate minority leader; after each authority has made an appointment, a second round must be made in the same sequence; legislative appointees serve for a two-year term.

Members may be reappointed for two additional terms.  Vacancies are filled by the entity that made the original appointment.  Factors that must be considered in making appointments to the commission are specified.  Members must perform their duties in an impartial and objective manner.  Members are subject to the conflict of interest provision in chapter 10A.  Provisions are included for the removal of members under certain circumstances.  Members serve without compensation, but may be reimbursed for expenses.  The commission must appoint an executive secretary.

Subdivision 4 provides that meetings of the commission must be open to the public, except that a meeting held to evaluate the performance of a judge may be closed to discuss issues related to the judge’s health or allegations that may be defamatory.   The commission is subject to the open meeting law.  Data collected by the commission must be made available to the public, except as otherwise provided in this section.

Subdivision 5 requires the commission to develop written standards, subject to Supreme Court approval, by which judicial performance is to be evaluated.  Guidelines for the standards are specified.  The commission must adopt procedures for collecting information and conducting reviews and create and implement a program of periodic review of each judge and request public comment on these procedures before adoption.

Subdivision 6 requires the commission to distribute anonymous survey forms eliciting performance evaluations as part of its evaluation process.  The commission must employ or contract with qualified individuals to prepare the forms and perform related functions and compile statistical reports in a manner that ensures confidentiality and accuracy.  Other survey requirements are included. Narrative comments and data on an individual who completes and responds to a survey form must not be made available to the public.

Subdivision 7 requires a midterm evaluation of sitting judges.  These evaluations must not be made available to the public.

Subdivision 8 provides for the retention-year evaluation.  Upon completion of the evaluation, the commission must rate the judge as “well-qualified,” “qualified,” or “unqualified” for office.  The evaluation must include a public hearing and an opportunity for submission of written comments.  The commission must notify each judge of the process and of the right to submit written comments and appear in person at the hearing.  The hearing and evaluation may be conducted by a panel of commission members.  A judge who does not intend to seek retention may waive the evaluation process by providing written notice to the commission.  If a judge waives the evaluation, the judge is not eligible to file an affidavit of candidacy and is not eligible to be appointed to fill the resulting vacancy. 

Subdivision 9 authorizes the commission to create evaluation panels composed of five members and to submit a report to the full commission.  All five members of the panel must vote.  The full commission may review the panel’s rating.  The commission may overturn the panel’s decision.  If there is a tie vote when the commission is reviewing a panel decision, the commission must reconvene at a later date to vote again.  If the vote is still tied, the panel’s decision is final.  If a report and rating is not reviewed, the panel’s determination is final.  Decisions of a panel or the full commission are not subject to judicial review.  Before the full commission reviews an evaluation, the judge must be given notice, and be able to submit written comments to the commission.  The judge has the right to be heard by the full commission.

Subdivision 10 provides that following evaluation of a judge, the commission must compile a factual report on the judge’s performance, including the final rating.  The report must be available to the public at least one month before the time period under law for filing an affidavit of candidacy.

Subdivision 11 appropriates the amount necessary to fund the commission from the general fund to the judicial performance evaluation fund.

Section 15 provides for initial appointments to the Judicial Performance Evaluation Commission and includes provisions for the first meeting and transitional provisions.

Section 16 instructs the revisor to make conforming changes.

Section 17 repeals the current laws dealing with the ballot designation of the incumbent and rules governing the placement of contested versus uncontested judicial offices, which would become obsolete under the retention election process.

Section 18 contains the effective date.  The law would be effective on July 1, 2015, if the Constitutional amendment is adopted, but actions may be taken immediately to consider and select potential appointees to the Judicial Performance Evaluation Commission.

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