Category Archives: Law

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.

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.



Missing Baby Found In Herbert Hoover’s Hometown

Hoover Birthplace

The home where newborn baby Herbert Hoover grew up, less than a mile from the BP station where another baby was abandoned. National Park Service photo.

This bizarre story had its happy ending just down the road from the Herbert Hoover birthplace.  When a newborn baby was discovered missing from Beloit, Wisconsin, police began calling people who had been in the house. Kristen R. Smith, 22, of Denver, was the mother’s half sister.  Her facebook page had recently shown pictures of her being pregnant, and had announced the birth of a child, about the same time as her half sister gave birth to a real baby.  When Smith called back from Interstate 80, she denied involvement in the kidnapping. A Beloit police officer instructed her to stop at the next town and find a police officer to search her car and confirm her story.

Smith dutifully complied with this request, and pulled into Herbert Hoover’s hometown of West Branch, Iowa. But before flagging down a local cop, she pulled into the BP-Amoco station and left the baby, wrapped up in blankets, in a grey tote box behind a dumpster.

She then drove to the Kum & Go on the other side of the freeway, where she waved down a passing West Branch police officer and handed him her phone. After talking with the Beloit officer, the West Branch officer performed a search of the car. He didn’t find the baby, but he did find a “prosthetic pregnancy belly”.

Fortunately, the courts will not need to grapple with the issue of whether possession of a prosthetic pregnancy belly gives probable cause for a kidnapping arrest. Lo and behold, Smith was wanted in Texas, and the West Branch officer arrested her under the Texas warrant. Smith was taken to a warm jail, where she denied any knowledge of the baby she had left in the subzero temperatures only hours before.

An all-out search began for the missing baby. Friday morning, thirty hours after the infant had been left outside in the cold, the West Branch Police Chief was searching behind the BP station. He opened the tote box, heard crying, and found the baby inside.

The baby was taken to the hospital, but was miraculously unscathed.

For more details:



Iowa Supreme Court Has Some Choice Words About Crony Capitalism. It’s Too Bad Minnesota Politicians Don’t Listen.

Iowa’s constitution, like that of Minnesota, contains a strict prohibition that the credit of the state shall never be loaned to any private entity. The Iowa Supreme Court recently had occasion to examine this provision, and it’s very relevant today.

The Iowa constitutional provision was taken from New York’s constitution, and was to prevent the practice under which “aspiring new states had loaned their credit freely and extravagantly to corporate enterprises which had in them much seductive promise of public good. These enterprises included railways, canals, water powers, etc.”

The Iowa Supreme Court has jealously guarded the public fisc over the years. In a 1923 case, they held that “no public purpose can be meritorious enough, and no obligation of equity appealing enough, to override this provision.”

In its recent case, the Iowa High Court lamented the fact that other states have ignored similar provisions. “To engraft by judicial gloss a vague and open-ended public purpose exception would undermine this constitutional prohibition.”

They quoted a 1987 Kentucky opinion identifying the practice for what it is: “Crony Capitalism.”

The framers of most state constitutions knew better than to freely and extravagantly lend the state’s credit to seductive private enterprises. Fortunately, a handful of states such as Iowa still apparently stubbornly cling to the archaic idea that the public treasury and the public credit should not be used to make the rich richer.

Publicly funded stadiums and other boondoggles should be recognized for what they are–crony capitalism. The seductive promise of public good is an insufficient reason to open up the public treasury to favored private interests.

I have a more complete summary of the case, Star Equipment, Ltd., v. State of Iowa, Department of Transportation at my website.



Appeals Court Says USDA Can’t Keep SNAP Dollars Hidden

Federal court sheds some sunlight on food stamp fraud.

When the Food Stamps (now known as SNAP) started in 1964, Congress appropriated $75 million. By the program’s third year, this amount had risen to $200 million. By fiscal year 2012, the program had a price tag of over $78 billion–a staggering thousand-fold increase over the program’s first year. By 2012, more that 46 million people–more than 15 percent of the U.S. population–were receiving benefits.

What food stamps are intended for.

What SNAP (food stamps) is intended for.

Most of that money goes to needy families. But an estimated $858 million per year is “trafficked”. Recipients illegally sell their benefits for cash to unscrupulous retailers. By one official estimate, about one in ten of the participating retailers engage in this illegal practice. Not only are these businesses stealing money from the taxpayers, but they are stealing food from hungry people.

If you’re doing this in South Dakota, you’re about to get busted, thanks to the tenacious efforts of the Sioux Falls Argus Leader newspaper. For almost three years, they’ve been fighting to get the USDA to hand over the secret data of how much money is going to each participating retailer. It’s safe to say that armed with this data, they’re going to be responsible for sending a few dishonest store owners to jail, all through the simple expedient of good journalism. If you’re taking in millions in food stamp dollars, it’s now only a matter of time before a reporter camps out outside your door. If you don’t have any customers walking out with bags of groceries, you’ll have some explaining to do. And you can do that explaining to a judge and jury.

For almost three years, the USDA, which runs the food stamp program, tenaciously fought to keep this information secret. They refused to hand it over when the newspaper made a Freedom of Information Act (FOIA) request. They refused again when the newspaper filed an administrative appeal. And they fought hard and won when the newspaper brought them to federal court in South Dakota.

But that all changed on January 28 when another federal court ordered the USDA to hand over the information. The U.S. Court of Appeals, based in St. Louis, struck down the South Dakota judge’s ruling, and held that the public and the newspaper are entitled to this information. The court brought a little sunlight to the USDA bureaucracy, and even quoted Justice Brandeis who said that “sunlight is said to be the best of disinfectants.”

A few months ago, I did the SNAP Challenge and wrote about it. I know that it’s tough (but not impossible) to feed yourself adequately with the amounts allowed.  And it’s a lot harder if people are stealing the money designated to feed the hungry.  If you’re stealing from the taxpayers and from hungry people in South Dakota, you’re about to get busted. And it’s about time.

You can read a more complete summary of the court’s opinion at my website, including a link to the court’s opinion.



Minnesota Supreme Court Rejects Common-Law “Year And A Day” Rule

In an opinion released on Wednesday, February 5, 2014, the Minnesota Supreme Court rejected the common-law “year and a day” rule in homicide cases.  Under that rule, it was a prerequisite for a murder conviction that the victim die within a year and a day.

Interestingly, even though this rule dates back to the 13th Century, the court pointed out that no Minnesota case “has adopted, applied, or even acknowledged the existence” of the rule in the state.

The Supreme Court held that even assuming that such a rule existed, it was repealed by the adoption of the state’s criminal code in 1963. The language of the modern statute is unambiguously at odds with the rule.

The ruling was made in upholding the conviction of Thomas Lee Fairbanks for the 2009 murder of Mahnomen County Deputy Sheriff Christopher Lee Dewey. A more complete summary of the case, and links to other materials regarding the common-law rule, are available on my website.