HF 3023

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to elections; proposing an amendment to the Minnesota Constitution,
article VI, sections 7 and 8; establishing and modifying procedures for filling
judicial vacancies; creating a judicial performance commission; creating a
commission on appellate judicial selection; amending Minnesota Statutes 2006,
sections 10A.01, subdivisions 7, 10, 15; 204B.06, subdivision 6; 204B.34,
subdivision 3; 204B.36, subdivision 4; 480B.01, subdivision 11; proposing
coding for new law in Minnesota Statutes, chapters 204D; 480B; repealing
Minnesota Statutes 2006, sections 204B.36, subdivision 5; 204D.14, subdivision
3.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

ARTICLE 1

CONSTITUTIONAL AMENDMENT

Section 1. CONSTITUTIONAL AMENDMENTS PROPOSED.

An amendment to the Minnesota Constitution is proposed to the people. If the
amendment is adopted, article VI, section 7, will read:

Sec. 7.

The term of office of all judges shall be six years and until their successors are
qualified. They Following appointment by the governor, each judge shall initially hold
office for a term ending December 31 following the next regularly scheduled general
election held more than three years after the appointment. Thereafter, the term of office
shall be eight years and until a successor is appointed and qualified and shall commence
on the first day of January following the judge's retention election. Judges' retention shall
be elected determined by the voters from the area which they are to serve, in the manner
provided by law. A judicial performance commission shall evaluate in a nonpartisan
manner the performance of judges according to criteria that the commission develops and
publishes, and such other criteria as may be established by law.

article VI, section 8, will read:

Sec. 8.

Whenever there is a vacancy in the office of judge, the governor shall appoint
in the manner provided by law a qualified person to fill the vacancy until a successor is
elected and qualified. The successor shall be elected for a six year term at the next general
election occurring more than one year after the appointment. from a list of candidates
nominated by a selection commission, in the manner provided by law.

Sec. 2. SUBMISSION TO VOTERS.

The proposed amendment must be submitted to the people at the 2008 general
election. The question submitted must be:

"Shall the Minnesota Constitution be amended to provide that judges shall be
appointed by the governor from a list of names submitted by a selection commission,
evaluated based on performance before standing for a retention election to the office, and
then retained or removed regularly based on a decision by the voters?

Yes .......

No ......."

ARTICLE 2

STATUTORY PROVISIONS

Section 1.

Minnesota Statutes 2006, section 10A.01, subdivision 7, is amended to read:

Subd. 7.

Ballot question.

"Ballot question" means a question or proposition that
is placed on the ballot and that may be voted on by all voters of the state. "Promoting
or defeating a ballot question" includes activities related to qualifying the question for
placement on the ballot. A ballot question does not include a judicial retention election.

Sec. 2.

Minnesota Statutes 2006, section 10A.01, subdivision 10, is amended to read:

Subd. 10.

Candidate.

"Candidate" means an individual who seeks nomination
or election as a state constitutional officer, or legislator, or judge retention in a judicial
office. An individual is deemed to seek nomination or election if the individual has taken
the action necessary under the law of this state to qualify for nomination or election, has
received contributions or made expenditures in excess of $100, or has given implicit or
explicit consent for any other person to receive contributions or make expenditures in
excess of $100, for the purpose of bringing about the individual's nomination or election.
A candidate remains a candidate until the candidate's principal campaign committee is
dissolved as provided in section 10A.24.

Sec. 3.

Minnesota Statutes 2006, section 10A.01, subdivision 15, is amended to read:

Subd. 15.

Election.

"Election" means a primary, special primary, general, or
special, or retention election.

Sec. 4.

Minnesota Statutes 2006, section 204B.06, subdivision 6, is amended to read:

Subd. 6.

Judicial retention candidates; designation of term office.

An individual
A justice or judge who files as a retention candidate for the office of chief justice or
associate justice of the Supreme Court, judge of the Court of Appeals, or judge of the
district court shall state in the affidavit of candidacy the office of the particular justice or
judge for which the individual is a retention candidate. The individual shall be a retention
candidate only for the office identified in the affidavit. Each justice of the Supreme
Court and each Court of Appeals and district court judge is deemed to hold a separate
nonpartisan office.

Sec. 5.

Minnesota Statutes 2006, section 204B.34, subdivision 3, is amended to read:

Subd. 3.

Judicial elections.

When one or more justices of the Supreme Court or
judges of the Court of Appeals or of a district court are to be nominated at the same
primary or elected at the same general election have filed for retention election, the
notice of election shall state the name of each justice or judge whose successor is to
be nominated or elected seeking retention.

Sec. 6.

Minnesota Statutes 2006, section 204B.36, subdivision 4, is amended to read:

Subd. 4.

Judicial retention candidates.

The official ballot shall contain the names
of all candidates for each judicial office and shall state the number of those candidates for
whom a voter may vote. (a) The official ballot shall contain the names of all justices or
judges seeking to retain their office. Each seat for an associate justice, associate judge, or
judge of the district court must be numbered. The words "SUPREME COURT," "COURT
OF APPEALS," and "(number) DISTRICT COURT" must be printed above the respective
judicial office groups on the ballot. The title of each judicial office shall be printed on
the official primary and general election ballot as follows:

(a) (1) In the case of the Supreme Court:

"Chief justice";

"Associate justice (number)";

(b) (2) In the case of the Court of Appeals:

"Judge (number)"; or

(c) (3) In the case of the district court:

"Judge (number)."

(b) A judicial retention election shall be placed on the ballot as a question, as
provided in subdivision 3. The question shall appear in substantially the following form:
"Shall ..... (name of judge) of the ..... (district court, court of appeals, or supreme court) be
retained in office?"

Sec. 7.

[204D.30] RETENTION OF JUDGES.

(a) Within the time period established by section 204B.09, a judge seeking to retain
judicial office shall file an affidavit of candidacy with the secretary of state. All judges
who have filed an affidavit of candidacy as provided in this section shall be placed on
the appropriate official ballot at the next regular general election under a nonpartisan
designation in the form provided in section 204B.36, subdivision 4.

(b) If a majority of those voting on the question votes "No," then upon the expiration
of the term for which the judge was serving, a vacancy shall exist, which shall be filled as
provided in chapter 480B. If a majority of those voting on the question vote "Yes," the
judge shall remain in office for an eight-year term, subject to removal as provided by the
Minnesota Constitution. A judge who loses a retention election shall be ineligible to
be nominated to fill the resulting vacancy.

(c) A judge seeking to retain judicial office shall be considered a candidate for
election to that office. A judicial retention election is not a ballot question for the purposes
of the Minnesota election law.

Sec. 8.

Minnesota Statutes 2006, section 480B.01, subdivision 11, is amended to read:

Subd. 11.

Nominees to governor.

Within 60 days after the receipt of a notice of
a judicial vacancy, the committee shall recommend to the governor no fewer than three
and no more than five nominees for each judicial vacancy. The names of the nominees
must be made public. The governor may fill the vacancy from the nominees recommended
by the commission. If the governor declines to select a nominee to fill the vacancy from
the list of nominees, or if no list is submitted to the governor under this subdivision,
the governor may select a person to fill the vacancy without regard to the commission's
recommendation. If fewer than 60 days remain in the term of office of a governor who
will not succeed to another term, the governor may fill a vacancy without waiting for the
commission to recommend a list of nominees. Within 60 days from the occurrence of a
vacancy in the office of judge, the commission on judicial selection shall submit to the
governor the names of three candidates nominated by the commission for the vacancy.
The names of the nominees must be made public. The governor shall appoint a qualified
person to fill the vacancy from that list of three candidates or may direct the commission
to nominate three additional candidates from which the governor shall appoint a qualified
person to fill the vacancy. If the governor directs the commission to nominate additional
candidates, the commission must submit its list of nominees to the governor within 60
days. If the governor requests an additional set of nominees, the appointment must be
made from the new set. If the commission does not submit a list of nominees within the
required time frame, the governor may appoint any qualified individual to fill the vacancy
without regard to the commission's work.

Sec. 9.

[480B.02] COMMISSION ON APPELLATE JUDICIAL SELECTION.

Subdivision 1.

Commission on Appellate Judicial Selection.

(a) A Commission
on Appellate Judicial Selection is established in the judicial branch. The commission shall
be composed of 11 members. In addition to the provisions established in this section,
the commission shall conduct business in the manner specified by section 480B.01,
subdivisions 7, 9, 10, and 12.

(b) All members of the commission must be residents of the state of Minnesota
at the time of their appointment and for the duration of their term. Members of the
commission may not serve as a public official as defined in section 10A.01, subdivision
35, while a member of the commission. Members of the commission who are attorneys
must have been admitted to practice before the Minnesota Supreme Court for not less than
five years. Members shall be eligible for reappointment up to two additional full terms.
Members of the commission who would otherwise be eligible to hold judicial office may
not be considered or appointed to fill a judicial vacancy while they are members of the
commission or for one year following the end of membership on the commission.

Subd. 2.

Commission members.

(a) Members of the commission shall be
appointed and serve as follows:

(1) the governor shall appoint five members of the commission, one of whom must
be appointed to serve as commission chair. Gubernatorial appointees shall serve on the
commission until the governor who made the appointment leaves office or for a term of
four years, whichever comes first;

(2) the chief justice of the Supreme Court shall appoint two members of the
commission. The chief justice's appointees shall serve on the commission for a four-year
term; and

(3) the legislature shall appoint a total of four members. Legislative appointments
shall be made sequentially as follows: the speaker of the house shall appoint one member,
the majority leader of the senate shall appoint one member, the minority leader of the
house shall appoint one member, and the minority leader of the senate shall appoint one
member. Legislative appointees shall serve on the commission for a two-year term.

(b) In making appointments, the governor, chief justice, and legislative leaders must
consider the diversity of the state's population, as well as the importance of balanced
geographic representation, and appoint individuals of outstanding competence and
reputation. The governor, chief justice, and legislative leaders should consult with one
another to ensure the requirements of this paragraph are met.

(c) A member may be removed by the appointing authority at any time (1) for
cause, after notice and hearing, or (2) after missing three consecutive meetings. The
chair of the board shall inform the appointing authority of a member missing the three
consecutive meetings. After the second consecutive missed meeting and before the next
meeting, the secretary of the board shall notify the member in writing that the member
may be removed for missing the next meeting.

(d) In the case of a vacancy on the board, the appointing authority shall appoint a
person to fill the vacancy for the remainder of the unexpired term.

Subd. 3.

Nominations.

(a) Within 60 days from the occurrence of a vacancy in
the office of appellate judge, the Appellate Judicial Merit Selection Commission shall
submit to the governor the names of three candidates nominated by the commission for the
vacancy. The governor shall appoint a qualified person to fill the vacancy from that list of
three candidates or may direct the commission to nominate three additional candidates
from which the governor shall appoint a qualified person to fill the vacancy. If the governor
directs the commission to nominate additional candidates, the commission must submit its
list of nominees to the governor within 60 days. If the governor requests an additional set
of nominees, the appointment must be made from the new set. If the commission does not
submit a list of nominees within the required time frame, the governor may appoint any
qualified individual to fill the vacancy without regard to the commission's work.

(b) The commission must nominate qualified persons to fill a judicial vacancy based
on the following criteria: integrity, legal knowledge, communication skills, judicial
temperament, the ability to promote trust and confidence in the judiciary, common sense,
experience, and diversity. The principal consideration in nominating a candidate for
a vacancy shall be merit. The commission must make nominations in an impartial and
objective manner without regard for the political affiliation of the nominee or the governor.

Sec. 10.

[480B.03] JUDICIAL PERFORMANCE COMMISSION.

Subdivision 1.

Purpose of commission.

A Judicial Performance Commission is
established in the judicial branch. After public hearings, the commission shall adopt and
administer for all judges a process for evaluating judicial performance. The performance
review process must be designed to assist voters in evaluating the performance of judges
standing for retention, facilitate self-improvement of all judges, and promote the public
accountability of the judiciary.

Subd. 2.

Commission members.

(a) The Judicial Performance Commission shall
be composed of 25 members. All members of the commission must be residents of
Minnesota at the time of their appointment and for the duration of their term. A member
of the commission may not serve as a public official, as defined in section 10A.01,
subdivision 35, while a member of the commission. Members of the commission who are
attorneys must have been admitted to practice before the Minnesota Supreme Court for
not less than five years. Members of the commission shall be eligible for reappointment
up to two additional full terms.

(b) Members of the commission shall be appointed and serve as follows:

(1) the governor shall appoint a total of nine members. Gubernatorial appointees
shall serve on the commission until the governor who made the appointment leaves office
or for a term of four years, whichever comes first;

(2) the chief justice of the Supreme Court shall appoint a total of eight members.
The chief justice may only appoint individuals who are sitting or former Minnesota state
court judges. The chief justice shall select one of the appointees to serve as chair of the
commission. The chief justice's appointees shall serve on the commission for a four-year
term; and

(3) the legislature shall appoint a total of eight members. Legislative appointments
shall be made sequentially as follows: the speaker of the house shall appoint one member,
the majority leader of the senate shall appoint one member, the minority leader of the
house shall appoint one member, and the minority leader of the senate shall appoint one
member. After each legislative leader has made one appointment as provided in this
clause, a second round of appointments shall be made in the same sequence. Legislative
appointees shall serve on the commission for a two-year term.

(c) In making appointments, the governor, chief justice, and legislative leaders must
consider the diversity of the state's population, as well as the importance of balanced
geographic representation, and appoint individuals of outstanding competence and
reputation. The governor, chief justice, and legislative leaders should consult with one
another to ensure the requirements of this paragraph are met.

(d) Members shall perform their duties in an impartial and objective manner and
shall base their recommendations solely upon matters that are in the record developed
by the commission.

(e) A member may be removed by the appointing authority at any time (1) for
cause, after notice and hearing, or (2) after missing three consecutive meetings. The
chair of the board shall inform the appointing authority of a member missing the three
consecutive meetings. After the second consecutive missed meeting and before the next
meeting, the secretary of the board shall notify the member in writing that the member
may be removed for missing the next meeting.

(f) In the case of a vacancy on the board, the appointing authority shall appoint a
person to fill the vacancy for the remainder of the unexpired term.

Subd. 3.

Meetings and data.

All meetings of the Judicial Performance Commission
are subject to the requirements of chapter 13D. Notwithstanding section 13.90, and except
as otherwise provided in this section, data collected by the commission is public data
pursuant to section 13.03, subdivision 1.

Subd. 4.

Authority of commission.

(a) The Judicial Performance Commission shall
develop written standards, subject to approval by the supreme court, by which judicial
performance is to be evaluated. The standards shall be periodically updated and must
include knowledge of the law, procedure, integrity, impartiality, temperament, respect for
litigants, respect for the rule of law, administrative skill, punctuality, and communication
skills. The commission may not evaluate judicial performance based on substantive legal
issues or opinions subject to standard appellate processes.

(b) The commission shall establish procedures for collecting information and
conducting reviews and shall create and implement a program of periodic review of the
performance of each judge. The commission must request public comment. Hearings
shall be conducted on the performance of all judges prior to a final determination as to
whether a judge meets or does not meet judicial performance standards. Hearings may be
conducted by a panel of commission members, as provided in subdivision 8.

Subd. 5.

Surveys.

(a) Midway through a judge's term and again no fewer than nine
months before the date of the election for retention of the judge's position, anonymous
survey forms eliciting performance evaluations shall be distributed to a representative
sampling of attorneys, litigants, other judges, and other persons who have been in direct
contact with each judge being evaluated and who have direct knowledge of the judge's
judicial performance during the evaluation period. The Supreme Court may adopt a rule
establishing standards for survey procedures.

(b) The Judicial Performance Commission shall employ or contract with qualified
individuals to prepare survey forms, process the survey responses, and compile the
statistical reports of the survey results in a manner designed to ensure confidentiality
and accuracy.

(c) The survey forms shall seek evaluations in accordance with the written
performance standards approved by the Supreme Court and must solicit narrative
comments regarding the judge's performance. Narrative comments shall be classified as
private. In each election year, prior to making its final evaluation, the commission shall
request written public comments and hold public hearings with respect to judges standing
for retention.

Subd. 6.

Midterm evaluation.

The commission shall evaluate each judge halfway
through the judge's term, as nearly as practicable, to provide feedback to the judge about
the judge's performance and to give the judge an opportunity for improvement.

Subd. 7.

Final evaluation.

A judge seeking to be retained in office shall notify the
commission in writing at least one year before the judge's term expires. An evaluation
panel shall conduct an evaluation of the judge, and declare the judge "qualified" or
"unqualified" for office. A declaration of "unqualified" shall not prohibit a judge from
seeking retention by the voters.

Subd. 8.

Evaluation panels; review by full commission.

(a) An evaluation panel
shall consist of five members, including at least one member appointed by each branch
of government, but otherwise chosen randomly. A district judge who serves as a panel
member may not evaluate another district judge who sits in the same judicial district. A
panel must report its results to the full commission. The full commission shall review a
panel's evaluation if the panel declares a judge unqualified, or if one panelist or three
members of the commission request a review within 15 days after the panel makes its
report. The commission may overturn a panel's decision. If a panel's decision is not
reviewed, the determination of the panel shall be final.

(b) If an evaluation is reviewed by the full commission, the commission shall
provide written notice to the affected judge. The judge shall have the right to submit
written comments to the commission and to appear and be heard by the commission
prior to the final vote of the commission.

Subd. 9.

Publication of evaluation results.

Following a final evaluation, the
commission shall compile a factual report on the judicial performance of each judge
standing for retention and shall make the report available to the public one month before
the time period established in section 204B.09 for filing an affidavit of candidacy with
the secretary of state.

Subd. 10.

Rules.

The commission may adopt rules establishing additional criteria
for evaluating judges and ensuring efficient performance of the commission's duties. For
purposes of this subdivision, the commission is an agency under chapter 14.

Sec. 11.

[480B.05] JUDICIAL RETENTION ELECTIONS.

Judicial retention elections shall be conducted consistent with the procedures
established by law for the administration of state general elections. Judges standing for
retention shall be placed on the ballot as provided in section 204D.30.

Sec. 12.

[480B.07] REQUIREMENTS FOR SERVICE ON COMMISSIONS.

Subdivision 1.

Service on multiple commissions prohibited.

A person may not
simultaneously serve on two or more commissions established under this chapter.

Subd. 2.

Service until appointment of successors.

Members of commissions
established under this chapter continue to serve until their successors have been appointed
and qualified.

Sec. 13.

[480B.09] TELEPHONIC OR ELECTRONIC PARTICIPATION IN
MEETINGS.

(a) If compliance with section 13D.02 is impractical, any of the commissions
established under this chapter may conduct a meeting of its members by telephone or other
electronic means, so long as the following conditions are met:

(1) all members of the commission participating in the meeting, wherever their
physical location, can hear one another and can hear all discussion and testimony;

(2) all members of the public present at the regular meeting location can clearly hear
all discussion and testimony and all votes of members;

(3) at least one member of the commission is physically present at the regular
meeting location; and

(4) all votes committing funds, finalizing recommendations, and approving contracts
are conducted by roll call, so each member's vote on each issue can be identified and
recorded.

(b) Each member of the commission participating in a meeting by telephone or
other electronic means is considered present at the meeting for purposes of determining
a quorum and participating in all proceedings. If telephone or other electronic means is
used to conduct a meeting, the commission, to the extent practical, shall allow a person to
monitor the meeting electronically from a remote location. The commission may require
the person making such a connection to pay for documented marginal costs that the
commission incurs as a result of the additional connection. If telephone or other electronic
means is used to conduct a regular, special, or emergency meeting, the commission
shall provide notice of the regular meeting location, of the fact that some members may
participate by telephone or other electronic means, and of whether and how a person may
monitor the meeting electronically from a remote location. The timing and method of
providing notice is governed by section 13D.04.

Sec. 14. JUDICIAL PERFORMANCE COMMISSION; FIRST MEETING.

The governor and the chief justice must make initial appointments to the Judicial
Performance Commission no later than 90 days following adoption of the constitutional
amendment proposed in article 1. The chair of the commission, as appointed by the chief
justice, must convene the first full meeting of the commission no later than 30 days after
all members of the commission have been appointed.

Sec. 15. REPEALER.

Minnesota Statutes 2006, sections 204B.36, subdivision 5; and 204D.14, subdivision
3, are repealed.

Sec. 16. EFFECTIVE DATE.

Article 2 is effective upon adoption of the constitutional amendment proposed in
article 1.