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SF 70

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:10am

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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; 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. CONSTITUTIONAL AMENDMENT 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 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
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 any 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
.

Sec. 2. SUBMISSION TO VOTERS.

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

"Shall the Minnesota Constitution be amended to preserve the independence of
Minnesota's judges by allowing voters to decide whether judges shall be retained in a
retention election, after a public performance evaluation by a nonpartisan panel?

Yes .......
No ......."

Sec. 3. TRANSITION.

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 on November 1, 2010. Following completion of that term, the judge is subject to
the retention election process as provided in the constitution and may file for retention
following the procedures described in article 2.

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. A ballot question does not include a
judicial retention election.

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, 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 2008, 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 2008, 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 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 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 2008, 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 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 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.

[480B.02] JUDICIAL PERFORMANCE COMMISSION.

Subdivision 1.

Purpose of commission.

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.

Subd. 2.

Commission members.

(a) The Judicial Performance Commission shall
be composed 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. Currently
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 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 eight members, no more than four of whom
may be attorneys at the time of their appointment. 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 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 shall serve on the commission for a four-year term; and

(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 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
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 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, 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.

(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.

(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 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.

(g) Commission members shall serve without compensation and may not be
reimbursed for expenses associated with their work on the commission.

(h) The Supreme Court shall provide administrative staff and any other resources as
needed by the commission.

Subd. 3.

Meetings and data.

All 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. 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.

Standards and procedures.

(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 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.

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, 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.

(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.

(c) Each survey conducted 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 contained in a survey
response shall be classified as private data on the judge, as defined in section 13.02,
subdivision 12.

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. The
commission shall adopt procedures for conducting the midterm evaluation.

Subd. 7.

Retention-year evaluation.

(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.

(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.

(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.

Subd. 8.

Evaluation panels; review by full commission.

(a) The evaluation of a
judge may be conducted by an evaluation panel. An evaluation panel shall consist 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 shall be final.
Decisions of an evaluation panel or the full commission regarding a judge's performance
are not subject to judicial review.

(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 a final vote of the commission members regarding the judge's performance.

Subd. 9.

Publication of evaluation results.

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.

Sec. 9.

[480B.03] 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. 10.

[480B.04] 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. 11.

[480B.05] 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. 12. JUDICIAL PERFORMANCE COMMISSION; FIRST MEETING;
TRANSITION.

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

(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.

(c) The commission is only required to conduct a final retention-year evaluation of
each judge whose term expires on or before January 7, 2013, 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 who take office or who begin
a new term after June 30, 2011, are subject to both the midterm and final retention-year
evaluations required by this article.

Sec. 13. REPEALER.

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

Sec. 14. EFFECTIVE DATE.

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.

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