Monthly Archives: March 2014

Why Judicial Retention Elections are a Bad Idea: Part 2

Another Overlooked Effect of Judicial Retention Elections

In an earlier post, I stated my main objections to amending the Minnesota Constitution to provide for retention elections in  judicial races. In summary, I believe this change will make the process more politicized. Since the stated reason for the amendment seems to be making judicial selection less political, this means that the amendment will make the problem worse rather than better.

An Iowa attorney who took one of my CLE programs identified another issue, that I probably wouldn’t have noticed. Lawyers in Minnesota are governed by the Minnesota Rules of Professional Conduct. These are essentially identical to the rules adopted in most other states, including Iowa. Rule 8.2 quite reasonably states that a lawyer must not knowingly or recklessly make a false statement concerning the qualifications or integrity of a judge or candidate for judicial office.

Again, this rule is quite reasonable.  We don’t want the lawyers of the state running around falsely stating that Judge _____ is a crook.  If he or she is really a crook, then I think that most would agree that we ought to make that fact known. And both this rule and the First Amendment make clear that we are allowed to say so. We are only prohibited from making false statements that the judge is a crook. Since we have very few crooks serving as judges, I have never been called upon to say that one of them was a crook. But if one of them actually were a crook, then it is both my right and my duty to point this out.

But I also need to be careful as to what I say, because if I provide false information, I will suffer the consequences under this rule.

This is how it should be. But there is indeed a restriction on my free speech, and under the First Amendment, we need to be careful about imposing restrictions on speech. As we lawyers like to say, these kinds of restrictions can have a “chilling effect” on free speech: Even though I might have proof that Judge _____ is a crook, I might decide to keep my mouth shut, because it’s just not worth the risk of getting in trouble.

In Minnesota, this chilling effect isn’t really a problem, though, because  we have a level playing field. Yes, there might be a chilling effect on my speech. But the other side (the people who think the hypothetical crooked judge should be re-elected) have an identical chilling effect upon their speech. They also have to be careful about what they say, because they run the risk of getting into the same trouble as me: If they say something false about the opposing candidate, they can also face discipline.

So in Minnesota, there probably is some chilling effect on speech. But at least everyone is operating under the same rules, and everyone’s speech is chilled by the same amount. In other words, it’s a level playing field.

This is not the case in Iowa, as an Iowa attorney pointed out to me. In Iowa, or any state with retention elections, the opponents of an incumbent judge have the same chilling effect on their speech that I have. If they make a statement that some judge should be removed from office, there’s the possibility that they will get in trouble, if their comments are construed as false claims about the judge’s qualifications or integrity.

But in Iowa, those in favor of retaining the judge face absolutely no risk: They are not telling you to vote against the challenger. Their only opponent is the word “no” on the ballot.  It’s impossible to make a false statement about the integrity or qualifications of the word “no.”  So in Iowa, if there are two sides of the debate, one side has one set of rules, but the other side has a different set of rules. The chilling effect applies only to one side. We lawyers would say that the rule is not “content neutral.” To put it in simpler terms, this is another way of saying “it ain’t fair.”

But What About Texas?

Inevitably, the proponents of retention elections will say something along the lines that if we keep our current system of contested elections, we’ll eventually “turn into Texas.” Texas judicial races are, indeed, much more politicized than they are in Minnesota. And I would probably agree that it would be a good thing if we don’t “turn into Texas” in this regard.

The problem, once again, is that the proposed amendment will make matters worse, not better. In short, we’ll turn into Texas faster if we adopt the amendment. For the reasons stated in my original post, we have a better chance of keeping the system non-politicized if we stay with the current system. The 2010 Iowa judicial elections were, in my opinion, much more political than just about any Texas race. The defeated judges called it “an unprecedented attack by out-of-state special interest groups.” They were probably right.  There was an angry mob of Iowa voters running around with signs that said “NO,” presumably financed by those evil out-of-state special interest groups.

But how is an angry mob of Iowa voters carrying “NO” signs any different from an angry mob of Texas voters carrying signs with the name of an opponent?

But Minnesota won’t go the way of Texas for a completely different reason. As the former Texas Chief Justice points out, the main problem with Texas judicial elections is that the party designation is listed on the ballot. This means that voters can vote a straight ticket.  Texas judicial candidates tend to ride the coattails of the presidential or gubernatorial race. In practice, this means that Republican judges are swept out of office when a Democrat carries the state, and vice versa. In Minnesota, even though judicial candidates may now seek party endorsement, the party designation, unlike in Texas, is not shown on the ballot. In other words, the voter cannot vote a straight party ticket without at least a little bit of education prior to the race.

I would oppose putting party designation on the ballot in judicial races. But as far as I know, nobody has proposed that. Keeping party designation off the ballot is what keeps us from “becoming like Texas.” The 2010 Iowa experience shows that retention elections are exactly the thing that will give us Texas-style judicial races.

Finally, I should point out one common misconception about Texas. It is true that judicial races in that state are sometimes hotly contested. You will occasionally see lawn signs supporting particular candidates, and I agree that these are a bit unseemly. But many (but not all) of these signs are actually supporting candidates for “County Judge.” Despite the name of the office, the County Judge is actually the chief executive of the Texas
county government. A more descriptive name of the position would be “chair of the county commissioners.” Other than some minor judicial functions in some rural counties, the County Judge is not a judicial officer. He or she holds a political office. Again, many (but not all) of the unseemly lawn signs are actually supporting candidates for this political office.

The retention amendment is a knee-jerk reaction to a problem that doesn’t exist. And unfortunately, it will be the very thing that brings the problem about.

Eating Without Money Part 4: The Big Day Comes

As I’ve mentioned in earlier posts, I recently conducted an experiment to see how well I could feed myself for a day without expending any money whatsoever.  To accomplish this, I ordered about $45 worth of food on Amazon. Rather than purchase it using money, I used earnings from Amazon Mechanical Turk.  The food arrived last week, and I chose yesterday to perform the experiment.

Even though I had more dollars to work with this time ($45, vs. $26.01), this experiment was more challenging than my experiences during the SNAP Challenge, when I had to feed myself for an entire week with a budget of $31.50.  This is because at local stores, I was able to find lower prices and, more importantly, smaller quantities of items I needed.  Fresh food was also available.

Despite these hindrances, I ate quite well yesterday.  Here’s what I had:





Since a box of pancake mix was part of my purchase, it’s only logical that I had pancakes for breakfast. I actually made them the night before, froze them, and heated them up in the toaster. I made plenty, and unlike during the SNAP Challenge, I had plenty to share. Therefore, my kids also had pancakes for breakfast. They had theirs with normal syrup and butter. In my case, I had neither. The least expensive sweetener I could find was the Agave Nectar, which was excellent, and much better than normal syrup. I had ordered this to use as a sweetener for other recipes, but for my one-day experiment, the only thing I used it for was the pancake syrup.

I had fried the pancakes in the Butter Flavor Crisco, which turned out to be the biggest surprise of this experiment. I had assumed that I could use this shortening for cooking, but it never occurred to me that it could actually be used as a butter substitute. As you can see, I decided to use a small amount in place of butter. Obviously, it wasn’t as good as real butter, but it actually passed as margarine. This is a good thing to keep in mind for emergency food storage.  The Crisco has an essentially infinite shelf life, and could be used as a substitute for butter in an emergency.  As you can see, I (and the kids) also had some of the summer sausage for breakfast.

Yes, it’s kind of weird to have lemonade for breakfast, but that was the only drink I had available. When I purchased it, it was the least expensive beverage to be found on Amazon. When I checked again today, it was still available on Amazon, but at an insanely high price for such a small package. The Cafe La Llave Espresso coffee was excellent, and only slightly more expensive than regular coffee.


DSC01144For lunch, I could have gotten by simply be eating crackers and sausage from my sausage sampler.  But I decided to try my hand at actually cooking something with my limited supply of ingredients, and made some biscuits.  Despite their odd shape, they were actually very good.  I simply mixed a cup of the  pancake mix with about a half cup of Crisco (melted in the microwave for about 45 seconds) and a small amount of water,  I baked them at 450 degrees for about 10 minutes.

That sounds like a cookie recipe, and they wound up looking like cookies.   But they tasted great and were very filling.  They turned out extremely crumbly, and I think I would have done better to use a little less shortening and a bit more water.  As you can see, I turned them into a sandwich with the sausage.

All of this, of course, I washed down with lemonade and coffee.


I ate lunch rather late, and the biscuit sandwiches were extremely filling.  For supper, I only had half of one of the Hormel Compleat dinners. (My son eagerly ate the other half.)

During the day, I also had some snacks of pancakes, sausage, and crackers from the  sausage sampler.


From what’s left over, I could repeat an identical diet for about two more days.  Some of the items (such as the Crisco) would be left over.

Was this a practical way to feed myself?  No.  I didn’t spend any actual money, but I could have used that $45 for other things.  I could have had an almost identical diet for a day for about $5 and still have leftovers.  So this is definitely not the most practical way of doing things.  But what I wanted to demonstrate was that even without any actual money changing hands, it is possible to subsist by using whatever resources are available.  In this case, the resource at hand was Amazon.

From a more practical point of view, the better course of action would have been to supplement normal groceries with staples from Amazon.  The pancake mix I bought was very expensive for a single box, but by buying larger quantities, such as this 4 pack, the price becomes much more reasonable. I’ll be making use of the remaining five  Hormel Compleat dinners, which were reasonably priced and are very convenient for a microwave lunch away from home.  By shopping around  Amazon, it would be quite possible to stretch a grocery budget by buying items with “free” money such as I was using.  It’s also possible to purchase luxury items such as the  Agave Nectar and the  premium coffee at no cost.

Eating Without Money Part 3: The Free Food Arrives

My free food, courtesy of Amazon.

My free food, courtesy of Amazon.

I’ve been rather busy the last week, and didn’t get a chance to really open it until today, but my free food arrived last week.  Tomorrow will be my day to subsist on this food and nothing else.

Mornings can be hectic, so tonight, I made a batch of pancakes and put them in the freezer.  In the morning, I can simply put them in the toaster.  I’ll also make some sausage for breakfast.

The brick of Cafe La Llave espresso coffee smells good, and I loaded the coffee maker and set the timer. I tasted the Agave Nectar, and it should work very well as pancake syrup. The taste was quite similar to honey.

The sausage sampler proved to be a good deal. The description wasn’t clear on the exact portion size, but each sausage is eight ounces, for a full pound of meat, in addition to the crackers and mustard. So I should be well set for both breakfast and lunch.

The lemonade mix proved to be quite expensive, since this package makes only two quarts. But it will easily last me the day, and was the least expensive beverage I could find. Interestingly, it did include the whisk shown on the Amazon picture.

Unlike my experience during the SNAP challenge, when my $26.01 worth of food lasted me a whole week, this experiment will last only one day.  Since I have much more than I’ll need for that time, I won’t have to jealously hoard my food as I did during the SNAP challenge, and my family will also get to experience eating without spending money.  They will be able to eat other things as well, but they’ll be able to know what my free food tastes like.  And it looks like I have plenty of free food to go around.

Retention Elections Will Make Judicial Selection More Political, Not Less. And Iowa Proves It.

A bill currently before the legislature seeks to amend the Minnesota Constitution to end constested elections for judges in the state.

Contrary to popular perception, judges in Minnesota are not appointed. They are elected. This comes as a surprise to most Minnesotans. When asked, they will typically opine that judges are initially appointed by the governor, but then must run for re-election. But that’s not exactly right. Article 6, Section 7 of the Constitution states:

The term of office of all judges shall be six years and until their successors are qualified. They shall be elected by the voters from the area which they are to serve in the manner provided by law.

Section 8 does, indeed, give the Governor the power of appointment, but only in the case of a vacancy:

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.

While there are some differences (the length of the initial term) this system is essentially identical to how U.S. Senators are chosen. U.S. Senators are elected by the voters, but mid-term vacancies are filled by the governor. Yet nobody ever says that senators are initially appointed by the governor, but then must run for re-election, as they invariably say about judges.

The confusion comes largely because most judges retire prior to the expiration of their term. Section 9 gives the Legislature the power to provide for retirement, and Minnesota Statute 490.125 sets a mandatory retirement age of 70. Upon a judge’s retirement, a vacancy is created, and the vacancy is filled by the Governor.

As a practical matter, most Judges retire in the middle of their terms, either by choice, or because they are faced with mandatory retirement. Therefore, the Governor initially appoints most judges.  Senators rarely retire mid term, and there is no mandatory retirement age for senators. This is why people rarely explain the senatorial election process the same way they explain the judicial election process. But the two processes are essentially the same: Both senators and judges are elected officials.

Interestingly, in the reports of the Minnesota Supreme Court and the Minnesota Court of Appeals, newly-appointed judges have a footnote next to their name which indicates that they are acting as judges pursuant to appointment. So even the Courts themselves seem to recognize that judges appointed by the governor are somehow not quite fully tenured judges.

The proposed amendment seeks to change the status of judges as elected officials. Under the amendment, they would really become what most people think they are already: They would be appointed by the governor. The amendment would make two changes. First of all, the governor would be limited to nominees presented by a judicial selection commission. The governor would not be able to nominate persons unless they received the un-elected commission’s approval.

The other big change would be in how judicial elections are carried out. Currently, any lawyer in the state can run for judge. If I want to, I can go pay the filing fee and run against any sitting judge. Or, in the rare cases where there’s a vacancy, I can seek employment for the next six years by running for the open seat. Most frequently, however, there is no challenger, and there is no open seat. On the back of the ballot, there’s a dizzying long list of incumbent judges. Each one has a bubble next to his or her name. And below the name, there’s another bubble next to a blank line for write-in candidates. If people look at the back of the ballot at all, they fill in the bubbles next to the names of the incumbents, even though those names are rarely familiar. On rare occasions, there’s another name, that of some brave lawyer who decided to pay the filing fee to get his or her name on the ballot. And that lawyer undoubtedly realizes that if he or she loses, it probably won’t be a good idea to appear before that judge for the rest of his or her legal career.

In the last few years, the U.S. Supreme Court has held that these brave challengers (as well as the incumbents) are, indeed, covered by the First Amendment. In other words, they are, indeed, allowed to say, “please vote for me.” They are even allowed to state their beliefs on matters of public concern.

The fact that the First Amendment still applies has caused a great deal of consternation in some quarters, and there are those who believe that the judicial election process will become “politicized.” There is undoubtedly some truth to this belief. As I have shown, judges are indeed elected officials. And an election is, by definition, a politicized process.

The amendment seeks to end this “politicization” by switching to retention elections. Instead of the back of the ballot having the names of judges and blank lines for write-ins, it will have the judge’s name and a question. The question will ask: “Shall Judge ____ be retained?” The voter will have the choice of two bubbles to fill in: Yes or No.

I think this is a bad system for a number of reasons. A good example of the most commonly cited reasons in opposition are stated by the Republican Liberty Caucus Minnesota statement. In general, I subscribe to the arguments made on that page.

But there’s another argument that is largely overlooked. Moving to retention elections would not do anything to de-politicize the process. If anything, retention elections will make the problem worse! And for proof, we need look no further than the Hawkeye State. Iowa’s experience proves that retention elections do not insulate judges from the whims of the voters. Instead, the retention election process makes judges more vulnerable to voters acting for weak and transient causes. Like Minnesota, the Iowa Constitution originally called for the election of judges. This was amended in 1962 to a retention system similar to what is now being proposed for Minnesota.

In 2009, the Iowa Supreme Court decided Varnum v. Brien. In that case, the court unanimously held that Iowa’s ban on gay marriage was unconstitutional. This decision was unpopular in some quarters.  Three of the judges of the supreme court were up for retention in 2010: Chief Justice Marsha Ternus, Justice David Baker, and Justice Michael Streit. All three of them were defeated. In other words, it’s safe to say that Iowa’s 1962 retention amendment didn’t do much to insulate them from the whims of an electorate responding to what many would consider a weak and transient cause.  In 2012, Justice David Wiggins, who also participated in the Varnum decision, was retained.  This was partly because the Iowa bar was more successful in rallying behind him, but also because three years had passed.  That’s the nature of weak and transient causes.  They’re easily forgotten.

For those who believe that judges should be insulated from the whims of the voters, did the retention system work? I would say that it did not. And it is obvious to me why it didn’t work. A mob of angry Iowa voters doesn’t have to invest very much effort in voting the perceived bums out of office. The work has been done by the people who printed the ballot. All the angry voter has to do is fill in the box marked “no”. If enough people fill in the bubble, then the judge is removed from office.

In Minnesota and other states with contested judicial elections, it’s not so easy to remove a sitting judge. The action being protested must be sufficiently egregious for two things to happen. First of all, as in Iowa, a majority of the electorate has to agree that the judge must go. But before this can happen, some lawyer must place his or her name on the ballot. I have no intention of running against some judge before whom I might appear someday. And most other lawyers in the state would have similar trepidation.

In short, yes, there is the distinct possibility that in our imperfect system, judicial elections might become “politicized.” But the Iowa experience proves that our current system is the least worst. The framers of the state constitution (both parties, since Minnesota really has two constitutions, as I explain on page 3 of this paper) picked our current system for a reason, and I believe that we should keep it the way it is.

In a future post, I’ll explain another unintended consequence of retention elections, as explained to me by an Iowa attorney.

Are you an attorney looking for a free CLE credit?  If so, please attend my free conference call CLE on March 24.

Eating Without Money Part 2: Ordering My Free Food

Over 12,000 calories, and it didn’t cost me a dime!

Last year, I participated in the SNAP Challenge, during which I ate (rather well) for an entire week with a budget of $31.50. I actually spent only $26.01 to feed myself for a week. I got to thinking whether I could eat without spending any money at all, and in an earlier post vowed to do so. As detailed there, my plan was to do jobs using Amazon Mechanical Turk and use the earnings to buy food from Amazon. Since the earnings can be used directly for Amazon purchases, no actual money will change hands.

Groceries on Amazon are usually more expensive than in a supermarket, but in many cases, the prices are competitive. The secret is to shop around, even if it means buying some unfamiliar products. Of course, a more reasonable approach would be to buy the reasonably priced staples on Amazon, and buy other products at a local store. This strategy could actually be quite useful to stretch a grocery budget. But for purposes of my experiment, I want to acquire everything I will eat on Amazon, without using any money.

The process is even more difficult because not all items are eligible for free shipping, and it’s necessary to make a total order of over $35 to qualify for free shipping. Back in November, I came up with one shopping list. However, prices change frequently, and my final shopping list is somewhat different from what I originally planned.

After my post in November, I did earn the necessary $35 on Amazon Mechanical Turk. However, instead of using the earnings for this experiment, I instead purchased the Baofeng UV-5R and got myself a free radio. In the last week or so, I did some more work on Amazon Mechanical Turk. This was mostly surveys of 5-10 minutes each, which I did in my spare time between doing other things. Today, I had about $46 in my account and decided to order my food.

As you can see from my shopping list below, I probably have enough food to last me several days. But because the selection is much more limited than what I had during the SNAP Challenge, the diet would become very monotonous. So instead of dragging it out, I’ll eat this food for one day, and see how many leftovers I have. Also, since my kids are interested in participating, I will have plenty to share with them, without jealously hording “my” special food, as I did during the SNAP Challenge.

I placed my order today, and I should receive it sometime next week. Yes, as you can see, I don’t really have any vegetables, but I will probably survive a day without them. As noted above, a better strategy would be to use the Amazon food in connection with low-cost groceries from a local store.

Here’s the order I placed. The total was $45.45, with free shipping:


If you read what I wrote during the SNAP Challenge, you know that I’m not going to give up coffee. The Cafe La Llave espresso was fairly reasonably priced for 10 ounces. I could have saved a little bit of money by buying a smaller package of instant coffee, but this looked like a much better buy for the money. The instant lemonade was the least expensive beverage I could find, and it looks like it should be plenty for a day.


Shopping for staples was somewhat frustrating, and I could have saved quite a bit by using cash and buying small packages of things such as flour and sugar at the dollar store or even the supermarket. But the point of the experiment is to get everything from Amazon without using money. That also means that I won’t be able to buy things like milk and eggs, so whatever I buy can’t require additional ingredients. I decided that the most versatile choice would be a package of pancake mix, which requires only water. In addition to pancakes, I should be able to use it for other recipes.  I did spend quite a bit more than I would have for the same package at the supermarket.

Sweeteners also presented a problem. I looked for things like sugar, syrup, honey, jams, and jellies, but they all either cost too much or were in packages much larger than what I would need.  The least expensive item I could find was the agave nectar, which I can use as a sweetener in other recipes, and also as pancake syrup. And this 17 ounce bottle should be more than I need.

For cooking oil, I toyed with the idea of buying some Ghee (Canned Butter), which was available with free shipping. It was, however, priced a bit higher than I was willing to pay, so I settled for the butter flavored Crisco.

Main Courses

The Hormel Compleat main courses were quite reasonably priced, very similar to what they would be at the supermarket. The price shown below is for a package of six, so even if I eat two of them, I’ll have some leftover for things such as traveling, since these are handy to keep and heat up in a microwave.

I wanted some meat for both breakfast and lunch, and I was lucky to find the gift package of sausages at a very reasonable price. It also includes some crackers and mustard, which will come in handy.

As I did during  the SNAP Challenge, when the food arrives, I’ll detail my experiences here.