SF 70

2nd Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:10am

A bill for an act
relating to judicial selection; proposing an amendment to the Minnesota
Constitution, article VI, sections 7 and 8; establishing retention elections for
judges; creating a judicial performance commission; amending Minnesota
Statutes 2008, sections 10A.01, subdivisions 7, 10, 15; 13.90, subdivision
2; 204B.06, subdivision 6; 204B.34, subdivision 3; 204B.36, subdivision 4;
proposing coding for new law in Minnesota Statutes, chapters 204D; 480B;
repealing Minnesota Statutes 2008, 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. new text begin CONSTITUTIONAL AMENDMENT PROPOSED.
new text end

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

Sec. 7.

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

new text begin article VI, section 8, will read:
new text end

Sec. 8.

Whenever there is a vacancy in the office of judge new text begin , new text end the governor shall appoint
in the manner provided by law a qualified person to fill the vacancy deleted text begin 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 deleted text end .

Sec. 2. new text begin SUBMISSION TO VOTERS.
new text end

new text begin The proposed amendment must be submitted to the people at the 2010 general
election. The question submitted must be:
new text end

new text begin "Shall the Minnesota Constitution be amended to reaffirm the impartiality of the
judiciary by providing that judges be appointed by the governor, with their continuation
in office determined at a retention election after a public, nonpartisan evaluation of their
performance by a judicial performance commission rather than be determined under
the current system of contested elections?
new text end

new text begin Yes ....... new text end

new text begin No ......." new text end

Sec. 3. new text begin TRANSITION.
new text end

new text begin Any judge currently seated or elected at the time the constitutional amendment
provided in section 1 is adopted shall complete the remainder of the judge's term as it
existed before adoption of the amendment. A judge who is elected at the 2010 general
election will serve a term of six years. Following completion of their terms, these judges
are subject to the retention election process as provided in the constitution and may file for
retention following the procedures described in article 2.
new text end

ARTICLE 2

STATUTORY PROVISIONS

Section 1.

Minnesota Statutes 2008, 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, other than lobbying activities, related to
qualifying the question for placement on the ballot. new text begin A ballot question does not include a
judicial retention election.
new text end

Sec. 2.

Minnesota Statutes 2008, 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 deleted text begin , deleted text end new text begin or new text end legislator, or deleted text begin judge deleted text end new text begin retention in a judicial
office new text end . 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 2008, section 10A.01, subdivision 15, is amended to read:

Subd. 15.

Election.

"Election" means a primary, special primary, general, deleted text begin or deleted text end
special new text begin , or retention new text end election.

Sec. 4.

Minnesota Statutes 2008, section 13.90, subdivision 2, is amended to read:

Subd. 2.

Exemption.

new text begin (a) Except as provided in paragraph (b), new text end the judiciary is not
governed by this chapter. Access to data of the judiciary is governed by rules adopted by
the Supreme Court.

new text begin (b) Data of the Judicial Performance Commission are governed by section 480B.02.
new text end

Sec. 5.

Minnesota Statutes 2008, section 204B.06, subdivision 6, is amended to read:

Subd. 6.

Judicial new text begin retention new text end candidates; designation of deleted text begin term deleted text end new text begin office new text end .

deleted text begin An individual deleted text end new text begin
A justice or judge new text end who files as a new text begin retention new text end 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 new text begin retention new text end candidate. The individual shall be a new text begin retention
new text end 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. 6.

Minnesota Statutes 2008, 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 deleted text begin are to be nominated at the same
primary or elected at the same general election deleted text end new text begin have filed for retention election new text end , the
notice of election shall state the name of each justice or judge deleted text begin whose successor is to
be nominated or elected deleted text end new text begin seeking retention new text end .

Sec. 7.

Minnesota Statutes 2008, section 204B.36, subdivision 4, is amended to read:

Subd. 4.

Judicial new text begin retention new text end candidates.

deleted text begin 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. deleted text end new text begin (a) The official ballot shall contain the names of all justices or
judges seeking to retain their office. new text end 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 deleted text begin primary and deleted text end general election ballot as follows:

deleted text begin (a) deleted text end new text begin (1) new text end in the case of the Supreme Court:

"Chief justice";

"Associate justice (number)";

deleted text begin (b) deleted text end new text begin (2) new text end in the case of the Court of Appeals:

"Judge (number)"; or

deleted text begin (c) deleted text end new text begin (3) new text end in the case of the district court:

"Judge (number)."

new text begin (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?"
new text end

Sec. 8.

new text begin [204D.30] RETENTION OF JUDGES.
new text end

new text begin (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. Judges
who have filed an affidavit of candidacy as provided in this section must 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.
new text end

new text begin (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 exists, which must be filled as
provided by law. If a majority of those voting on the question votes "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 is ineligible to be appointed to fill the
resulting vacancy.
new text end

new text begin (c) A judge seeking to retain judicial office is 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.
new text end

Sec. 9.

new text begin [480B.02] JUDICIAL PERFORMANCE COMMISSION.
new text end

new text begin Subdivision 1. new text end

new text begin Purpose of commission. new text end

new text begin The 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.
new text end

new text begin Subd. 2. new text end

new text begin Commission members. new text end

new text begin (a) The Judicial Performance Commission
is comprised of 24 members. All members of the commission must be residents of
Minnesota at the time of their appointment and for the duration of their term. Sitting
judges and public officials, as defined in section 10A.01, subdivision 35, may not be
appointed or serve on the commission. Members of the commission who are attorneys at
the time of their appointment must have been admitted to practice before the Minnesota
Supreme Court for not less than five years. Members of the commission are eligible for
reappointment up to two additional full terms.
new text end

new text begin (b) Members of the commission must be appointed and serve as follows:
new text end

new text begin (1) the governor shall appoint a total of eight members, no more than four of whom
may be attorneys at the time of their appointment. Gubernatorial appointees serve on the
commission until the governor who made the appointment leaves office or for a term of
four years, whichever comes first;
new text end

new text begin (2) the Supreme Court shall appoint a total of eight members. The court shall
designate one of the appointees to serve as chair of the commission. No more than four of
the appointees may be attorneys at the time of their appointment. The Supreme Court's
appointees serve on the commission for a four-year term; and
new text end

new text begin (3) the legislature shall appoint a total of eight members, no more than four of
whom may be attorneys at the time of their appointment. Legislative appointments must
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
of representatives 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 must be made in the same sequence.
Legislative appointees serve on the commission for a two-year term.
new text end

new text begin In the case of a vacancy on the commission, the authority who appointed the
member whose seat has become vacant shall appoint a person to fill the vacancy for the
remainder of the unexpired term.
new text end

new text begin (c) In making appointments, the governor, Supreme Court, 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, Supreme Court, and legislative leaders should consult with one
another to ensure the requirements of this paragraph are met.
new text end

new text begin (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. A member who violates this paragraph may be removed from the
commission by majority vote of the commission's membership.
new text end

new text begin (e) A member may be removed by the appointing authority at any time for cause,
after notice and hearing, or after missing three consecutive meetings. After a member
misses two consecutive meetings and before the next meeting, the secretary of the
commission shall notify the member in writing that the member may be removed if the
member misses the next meeting. The chair of the commission shall inform the appointing
authority if a member misses three consecutive meetings.
new text end

new text begin (f) Commission members shall serve without compensation and may not be
reimbursed for expenses associated with their work on the commission.
new text end

new text begin (g) The Supreme Court shall provide administrative staff and any other resources
as needed by the commission. The chair of the commission shall appoint a member of
the commission to serve as the secretary.
new text end

new text begin Subd. 3. new text end

new text begin Meetings and data. new text end

new text begin Meetings of the Judicial Performance Commission
are subject to the requirements of chapter 13D, except that a meeting held to evaluate the
performance of a judge may only be closed to discuss issues related to the judge's health or
allegations against the judge that may be defamatory in nature. The commission is subject
to the requirements of chapter 13. Except as otherwise provided in this section, data of the
commission are public data pursuant to section 13.03, subdivision 1.
new text end

new text begin Subd. 4. new text end

new text begin Standards and procedures. new text end

new text begin (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 must 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.
new text end

new text begin (b) The commission shall adopt 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 on these
procedures prior to their adoption.
new text end

new text begin Subd. 5. new text end

new text begin Surveys. new text end

new text begin (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, the commission
must distribute anonymous survey forms eliciting performance evaluations of the judge to
a representative sampling of attorneys, litigants, other judges, and other persons who have
been in direct contact with the judge being evaluated and who have direct knowledge of
the judge's judicial performance during the evaluation period.
new text end

new text begin (b) The Judicial Performance Commission must employ or contract with qualified
individuals to prepare survey forms, process responses, and compile the statistical reports
of the survey results in a manner that ensures confidentiality and accuracy.
new text end

new text begin (c) Each survey conducted must 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 contained in a survey
response are private data on the judge, as defined in section 13.02, subdivision 12. Data on
an individual who completes or responds to a survey form are private data on individuals.
new text end

new text begin Subd. 6. new text end

new text begin Midterm evaluation. new text end

new text begin 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. The
commission shall adopt procedures for conducting the midterm evaluation.
new text end

new text begin Subd. 7. new text end

new text begin Retention-year evaluation. new text end

new text begin (a) In each year in which a judge has the
opportunity to file as a candidate for retention, the Judicial Performance Commission must
conduct a final evaluation of the judge and determine whether the judge meets or does not
meet judicial performance standards. Upon completion of the evaluation, the commission
must rate the judge "well-qualified," "qualified," or "unqualified" for office. A rating of
"unqualified" does not prohibit a judge from seeking retention by the voters.
new text end

new text begin (b) The final evaluation of a judge must include a public hearing and an opportunity
for submission of written public comments on the performance of a judge standing for
retention. Prior to accepting public comment and conducting a hearing, the commission
must notify each judge to be evaluated of the process for conducting the evaluation and
the right of the judge to submit written comments and appear in person at the hearing.
The hearing and evaluation may be conducted by a panel of commission members, as
provided in subdivision 8.
new text end

new text begin (c) A judge who does not intend to seek retention may waive the final evaluation
process by providing written notice to the commission affirming the judge's intention to
not file as a retention candidate for their office. If a judge waives the final evaluation under
this paragraph, the judge is not eligible to file an affidavit of candidacy for the office and
is not eligible to be appointed to fill the resulting vacancy or any other judicial vacancy
occurring within two years of the expiration of the judge's term.
new text end

new text begin Subd. 8. new text end

new text begin Evaluation panels; review by full commission. new text end

new text begin (a) The evaluation of a
judge may be conducted by an evaluation panel. An evaluation panel is comprised of five
members, including at least one member appointed by each branch of government, but
otherwise chosen randomly. A panel must report its results to the full commission. The
full commission shall review a panel's evaluation if the panel rates 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 rating. If a panel's
report and rating is not reviewed, the determination of the panel is final. Decisions of an
evaluation panel or the full commission regarding a judge's performance are not subject
to judicial review.
new text end

new text begin (b) If an evaluation is reviewed by the full commission, the commission shall
provide written notice to the affected judge. The judge has the right to submit written
comments to the commission and to appear and be heard by the commission prior to a
final vote of the commission members regarding the judge's performance.
new text end

new text begin Subd. 9. new text end

new text begin Publication of evaluation results. new text end

new text begin Following the final evaluation of a
judge, the commission shall compile a factual report on the judicial performance of each
judge intending to stand for retention, including the final rating assigned to the judge's
performance. The report must be made available to the public at least one month before
the time period established in section 204B.09 for filing an affidavit of candidacy with
the secretary of state.
new text end

Sec. 10.

new text begin [480B.03] JUDICIAL RETENTION ELECTIONS.
new text end

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

Sec. 11.

new text begin [480B.04] REQUIREMENTS FOR SERVICE ON COMMISSIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Service on multiple commissions prohibited. new text end

new text begin A person may not
simultaneously serve on more than one commission established under this chapter.
new text end

new text begin Subd. 2. new text end

new text begin Service until appointment of successors. new text end

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

Sec. 12.

new text begin [480B.05] TELEPHONIC OR ELECTRONIC PARTICIPATION IN
MEETINGS.
new text end

new text begin (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:
new text end

new text begin (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;
new text end

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

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

new text begin (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.
new text end

new text begin (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 the 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.
new text end

Sec. 13. new text begin JUDICIAL PERFORMANCE COMMISSION; FIRST MEETING;
TRANSITION.
new text end

new text begin (a) Initial appointments must be made to the Judicial Performance Commission on
July 1, 2011.
new text end

new text begin (b) Initial appointees shall serve for a term ending January 15, 2013, and may be
considered for reappointment as provided in this article at that time. The chair of the
commission must convene the first full meeting of the commission no later than August 1,
2011, and appoint a secretary for the commission at that first meeting.
new text end

new text begin (c) The commission is only required to conduct a final retention-year evaluation of
each judge whose term expires on or before January 5, 2015, but may conduct an initial
evaluation of these judges to provide an opportunity for improvement if the commission
determines that it is prepared and equipped to do so. Judges whose terms expire after
January 5, 2015, are subject to both the midterm and final retention-year evaluations
required by this article.
new text end

Sec. 14. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, sections 204B.36, subdivision 5; and 204D.14, subdivision
3, new text end new text begin are repealed.
new text end

Sec. 15. new text begin EFFECTIVE DATE.
new text end

new text begin This article is effective July 1, 2011, if the constitutional amendment in article
1 is adopted. However, if the constitutional amendment is adopted, the governor and
Supreme Court may immediately undertake any procedure necessary to consider and
select potential appointees.
new text end