Act now before Wisconsin-style judicial elections cross the border

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Regardless of its outcome, the campaign that ended last week was the latest in a series of Wisconsin judicial election embarrassments. Ostensibly nonpartisan, it was anything but. State and national political parties, politicians and contributors jumped in with both feet, spending $100 million.

Sharing media markets and 300 miles of border, Minnesotans saw what was happening next door. Minnesota is similar to Wisconsin in so many ways. Now we need a state constitutional amendment to make sure that what Wisconsin just staggered through won’t happen here.

The judiciary is supposed to be independent, nonpartisan and professional. When I took the oath of office as a Minnesota Supreme Court justice, I understood that I was leaving the world of politics and entering the world of precedent and principle. But that’s not what recent elections in Wisconsin have been about.

They were not about who would be the more thoughtful, fair-minded and collegial justice. They were not about who would apply prior decisions to craft practical, durable rules of law. Rather, willing or not, the candidates served as proxies for national political movements and officeholders. Wisconsin’s recent judicial elections have undermined public trust and confidence in the integrity and independence of the judiciary.

And what message do these elections send to prospective candidates for the Wisconsin appellate courts? The message is: Don’t even think about it if you can’t or won’t tacitly affiliate yourself with a political party and its related networks and contributors. Don’t do it if you can’t or won’t make public statements on hot-button issues, thereby hinting that you’ve pre-judged certain kinds of cases. And don’t do it if you can’t or won’t stand outsiders taking effective control of your message and your life story.

This message is entirely antithetical to what judges should be: professional neutrals who listen carefully, consider thoroughly, then administer justice fairly using the governing law and the evidence. Big-money, high-intensity, Wisconsin-style elections discourage highly qualified judges and lawyers from seeking to serve.

This simply can’t be what the framers of both states’ constitutions envisioned in the mid-1800s. Yet, neither state is moving toward needed structural change. In Wisconsin, the warring parties will take a few days off to catch their breath, then they’ll start planning for the next battle.

In Minnesota, the problem is the opposite. Because there have been few contested statewide judicial elections and incumbents have a long winning streak, we stick our head in the sand on the theory that “it can’t happen here.”

Well, maybe the wolf isn’t at the door, but he’s in the neighborhood. Is there really something in Minnesota’s legal and political culture that inoculates us from the Wisconsin infection? All it will take is a seven-figure contribution to an “independent” committee created to knock off a Minnesota justice. The parties, consultants and contributors will follow. What we thought was our culture will melt faster than tournament snow.

Is it possible to insulate statewide judicial elections from the partisanship and the money and everything that comes with them — consultants, polling, focus groups, attack ads, social media, endorsements and politicians? No — unless you’re also willing to limit the corresponding freedoms of speech, press and association. I’m not.

In the 2000s, a majority of the Quie Commission thought that retention elections would provide some insulation. You vote on whether a judge should be retained, just yes or no. But we’ve seen in recent years that retention elections are no panacea. Elections in retention states, like Iowa, have become more political, intense and expensive. And they’re convenient vehicles for shadowy, last-minute attacks on incumbents who have neither the time nor the resources to respond. As one Minnesota judge said to me, “In a retention election I’d have to run against myself. I’d rather run against someone else.”

There is a better alternative. It’s based on a bedrock constitutional principle: checks and balances. Here’s the framework for a constitutional amendment.

Limit the amendment to the judgeships most endangered by Wisconsin-style elections: the Supreme Court and the Court of Appeals. When an appellate vacancy occurs by resignation, death or otherwise, fill the vacancy temporarily by open applications and gubernatorial appointment, with the help of the existing judicial selection commission.

Instead of putting the seat on the ballot at the next general election, vest the decision whether to retain the judge in a new, independent constitutional entity: the board of judicial retention. In the first two years of the term, the board would monitor and evaluate the judge’s performance. Then it would decide whether to retain the judge for the full term. Toward the end of the term, in the same manner, the board would evaluate and vote on whether to retain the judge or declare a vacancy. The decision to oust a judge and declare a vacancy would require a two-thirds vote.

Each board member would swear an oath to apply nonpartisan criteria for retention. These are: Does the judge uphold and promote the independence, integrity and impartiality of the judiciary? Does the judge comply with the law inside and outside the courtroom? Does the judge believe in, and promote confidence in, the rule of law? And does the judge perform the duties of the office completely and professionally? These criteria come directly from the code of conduct that governs Minnesota judges.

Not only would the board act as check, but its membership would be balanced. Each branch of government would appoint a third of its twelve members. Four would be appointed by constitutional officers. Four would be appointed by the majority and minority legislative leadership. Four retired judges would be appointed by the judicial branch. No appointee could be a current state legislator, official or employee.

This amendment would make the appellate courts more professional, more independent and more attractive to both sitting and prospective judges. Highly qualified candidates would be further encouraged if the amendment extended the term of office from six to eight years and the mandatory retirement age from 70 to 75. The amendment would not displace the existing process for judicial impeachment and discipline.

The time to fix the roof is when the sun is shining. Perhaps even our deeply divided Legislature could agree that the storm is coming. The 2026 general election is the next opportunity to enact a constitutional amendment to keep our appellate courts, paraphrasing the words of the Minnesota state song, “a beacon bright and clear … a Northern Star.”

Appointed by Gov. Mark Dayton in 2013 and elected in 2014, David Lillehaug served as an associate justice on the Minnesota Supreme Court until he retired in 2020.