It's the night before Election Day and Kathleen Mottl is trolling for votes. During rush hour. In the pouring rain. She makes her way from door to door in a south Minneapolis neighborhood just east of Edina, armed with campaign brochures and protected only by a patriotic red, white, and blue umbrella.
"Hi, I'm Kathleen Mottl," she begins on each doorstep. "I'm running for Hennepin County District Court judge. Most people say they don't know enough about judicial candidates, so we're trying to change that, one person at a time."
Most residents look a little bewildered, taking a brochure without offering much response. One woman promises to vote for Mottl because of her involvement with mock-trial programs in area high schools. Another man attempts to engage Mottl in a discussion of what he sees as the Draconian laws governing dogs and guns, but she politely begs off; state law prohibits judicial candidates from discussing volatile issues.
The Wright County prosecutor and neophyte campaigner has learned several important political rules of thumb during her weeks on the hustings: Don't tread on residents' lawns. Don't go door-knocking during Vikings games. And don't ring the doorbell if you can see someone inside talking on the phone.
In her bid to unseat Hennepin County District Court Judge Patricia Kerr Karasov, Mottl is doing more than knocking on doors. She has amassed a war chest of almost $30,000--though most of that came via a $25,000 bank loan. The money paid for numerous newspaper ads, brochures distributed in the Southwest Journal, and even yard signs--a rarity among local judicial candidates. But her effort is the exception rather than the rule. The vast majority of judicial races in Minnesota, particularly at the district court level, are either uncontested or barely contested. This year only 5 of 67 district court judges faced opposition. What's more, despite the electoral system, 90 percent of the members of the Minnesota bench got there via gubernatorial appointment, when vacancies opened up in between elections.
In other words, Mottl is swimming against a pretty strong current. Voters typically walk into the booth knowing virtually nothing about judicial candidates. According to a Minnesota State Bar Association survey of Hennepin County voters in 1996, only a week after that year's supreme court race nearly half the respondents could not remember whom they'd voted for. Incumbents, who are clearly identified as such on the ballot, almost never lose.
"It's hard enough to get people to look seriously enough at the two presidential candidates, or the two U.S. Senate candidates," says Carl Cummins, a St. Paul attorney who served as lead legal counsel to Gov. Al Quie beginning in the late 1970s. "The further you go down the election ballot, the less informed people are likely to be. And judges are kind of at the bottom of the ballot."
The historically yawn-inducing issue of judicial elections was pushed to the fore this year by the Minnesota Republican Party's controversial decision to begin endorsing candidates for judgeships. Perennial state supreme court contestant Greg Carlson Wersal brought the matter into the spotlight by filing lawsuits contending that his free-speech rights are curtailed by laws that prohibit judicial candidates from touting those very endorsements, and from speaking freely about issues that might come before them on the bench.
"It's kind of a sham," agrees Seth Andersen, director of the Hunter Center for Judicial Selection at the American Judicature Society, a Chicago-based nonprofit group that advocates for judicial-selection reform. "All, really, that judges can say is, 'I will be fair and impartial, here's my track record, and I have a very good reputation.'"
Minnetonka Republican Rep. Ron Abrams believes he has a solution. During the upcoming legislative session, Abrams intends to propose a constitutional amendment to adopt the so-called Missouri Plan. Named for the state that first instituted it, the Missouri Plan does away with "contested" elections: All judges are initially appointed, typically in a process that involves a nominating committee. Every four to twelve years (depending upon the state), voters decide whether to keep incumbents on the job. If a judge fails to garner the approval of a majority of voters, a replacement is appointed. Since 1940, when Missouri implemented its system, fifteen other states have enacted their own version; another two have adopted systems in which judges are initially voted onto the bench in contested elections, then retained or dropped via referendums. No state that has modeled a plan after Missouri's has ever reverted to contested elections.
Beyond his concern over the introduction of partisan politics into judicial elections, Abrams worries about the growing influence of money on campaigns nationwide. In a handful of states this year (notably Ohio, Michigan, and Alabama), races for judgeships became magnets for millions of dollars in political advertising from special-interest groups, such as chambers of commerce and labor unions. Although Minnesota has so far escaped such spending sprees, the cost of judicial campaigns here has become significant. As of October 23, according to filings with the Campaign Finance and Public Disclosure Board, Minnesota Supreme Court Justice James Gilbert's campaign had raised more than $170,000 in his effort to stave off Wersal, while benchmate Kathleen Blatz took in $126,000 to thwart opponent Burton Hanson. (Both Gilbert and Blatz won their races by decisive margins.) As with most judicial campaigns, many of the donations came from trial lawyers who might potentially argue cases in front of those very justices.
"If we continue to go down this road, I think you're going to have extremely expensive judicial elections, in which all of the special-interest groups are involved, and all of the political parties are involved, and we're going to have justice dispensed by political philosophy rather than by what the law really states," Abrams cautions.
Judicial elections have long been a source of consternation for politicians and government watchdogs alike, but resolution has so far proved elusive. In 1996 Sen. Carol Flynn offered a bill similar to the one Abrams is drafting, but it died. Also in the mid-1990s, a committee from the state's League of Women Voters spent two years studying the issue, only to conclude that there is no perfect system for selecting judges. In the end the committee recommended some small changes to the Minnesota system, such as redoubling voter-education efforts and requiring that a judicial candidate have at least five years' experience as a lawyer before running for judge. (Although the League of Women Voters has worked to educate voters about judicial elections, the five-year rule has never been adopted.) "The more they looked at other systems, the more they thought that our system worked pretty well," concludes league president Judy Duffy.
The chief criticism of the Missouri Plan is that it has the potential to open the floodgates for special-interest groups focused on a single issue, such as abortion or tort reform, to target a sitting judge who has made controversial rulings. An oft-cited example is that of former Tennessee Supreme Court Justice Penny White: After signing a 1996 opinion ordering a new sentencing hearing for a death-row inmate, White was caught in the crosshairs of a Republican-led campaign to oust her from the bench. She was unseated after garnering the approval of 45 percent of voters.
"You're not running against a real person," argues Sandra Neren, a lobbyist for the Minnesota District Judges Association, which has opposed any changes to the current election system. "In our minds and in the minds of judges in other states, every single election becomes a contested election. You have a perfect 'nobody,' who's never done anything controversial, or made a controversial decision, or done anything the public doesn't like."
The American Judicature Society's Seth Andersen concedes that judges are sometimes forced to tiptoe up to Election Day hoping some "group of crazies" doesn't come forward to oppose them. "The potential for more mischief in retention elections might very well increase," he admits. "That being said, it's still a better way to focus the public's attention on what we're voting on here: Is this a good, fair, impartial judge?" For the system to work, Andersen adds, the state must set up a "performance evaluation commission" to help voters make informed choices. Finally, Andersen and others note that ousters are extraordinarily rare under the Missouri Plan. In one study, Bradley University political science professor Larry Aspin found that between 1964 and 1998 only 52 out of 4,588 judges--1.1 percent--weren't retained.
If Abrams moves forward with his proposal, the Missouri Plan probably won't be the only option. In 1997 Sen. Thomas Neuville offered a plan under which all judges would be appointed by the governor after being vetted by a nominating commission (as in the Missouri Plan). The senate would then hold public hearings on the nominees and either confirm or reject them. Every eight years judges would have to be reconfirmed. Neuville's bill went nowhere in 1997, but the Northfield Republican says that if the issue comes up this year, he'll put it forth again. "I think we do want to have judicial independence, and judicial independence is not guaranteed by the election process we have right now," he asserts. "How can these judges claim to be neutral and independent when they're accepting endorsements from all these [special-interest] groups? They can't."
Any change to the judicial election system would require an amendment to the state constitution--and, therefore, approval by voters. "Everybody I've talked to has said, 'Great,' but it will be difficult to get through," Abrams admits.
Whatever the outcome, the debate comes too late for Kathleen Mottl. Despite her ad campaign, despite having been the only non-incumbent to win the endorsement of the Star Tribune, and despite facing an opponent whom the Hennepin County Bar Association ranked last among sitting judges up for election, Mottl lost to Kerr Karasov by a margin of 56 percent to 44 percent. The results, she says, were so disappointing that she still can't bring herself to look at the final tally.
She hasn't ruled out running again someday, though. And just in case, she's storing the lawn signs in her garage. In the meantime there's always the hope she'll win her judgeship the other old-fashioned way: "Each time I pick up the phone, I'm hoping it's Governor Ventura on the line, but it hasn't happened yet," she jokes.