Courting Trouble

Judicial candidates in Minnesota can now be endorsed by a political party. The money hasn't flowed yet, but some races have already been politicized.

Ramsey County District Court Judge Elena Ostby frequently declares herself a non-politician. It's a rhetorical gambit that has been employed by electoral aspirants time and again in recent years, from Ross Perot to Patty Wetterling.

In Ostby's case, though, the declaration might actually make sense. "I have never run in a political election before in my career," she notes. "The last election that I stood for was in 1985 when I ran for law school student council."

But Ostby, however unwittingly, now finds herself in the political fight of her life. She faces two different challengers for her Ramsey County District Court post, to which she was appointed in 2004 by Gov. Tim Pawlenty. Jay Benanav, a nine-year veteran of the St. Paul City Council, and attorney Paul Godfrey are both seeking to replace Ostby on the bench. The trio will face off in next week's primary election.

This three-way scrum is the most hotly contested local judicial race in a year where the rules governing such elections have been overhauled. Last year, after nearly a decade of legal battles, the U.S. 8th Circuit Court of Appeals struck down Minnesota's limits on judicial campaigning, ruling that the law violated candidates' free speech rights. Consequently, this is the first round of judicial elections where judges are explicitly allowed to accept endorsements from political parties, solicit campaign contributions, and express opinions on touchstone issues such as abortion and gay marriage.

The changes have raised fears that Minnesota's judicial elections will henceforth be plagued by unseemly amounts of cash, the sway of special-interest groups, and partisan attacks. Across the country, the amount of money flowing into judicial campaigns has skyrocketed in recent years. According to a 2005 report by Justice at Stake, a national organization working to preserve an impartial justice system, in 2004 state supreme court candidates nationwide spent $42 million on their campaigns, up from $29 million two years earlier. What's more, over the last three election cycles, judicial candidates nationwide raised $123 million—or $50 million more than in the previous six years. In most states where the costs of such elections have grown dramatically, the cause is usually the U.S. Chamber of Commerce and its local affiliates squaring off against trial lawyers. In Ohio, for instance, a chamber-backed group dubbed Citizens for a Strong Ohio spent $4.2 million in 2000 unsuccessfully trying to oust state Supreme Court Justice Alice Robie Resnick.

Hennepin County District Court Judge Kevin Burke, who has studied the issue extensively, says that so far in Minnesota there's been a "detente" between the Chamber of Commerce and groups representing trial lawyers. Therefore the state hasn't yet seen the influx of special-interest money that has plagued judicial campaigns elsewhere. But, of course, that could change. Burke argues that the pernicious impact of money is no different in the judiciary than in the executive and legislative branches of government. "I don't know that I'm prepared to say it's more of a problem for us than the other two branches," he offers. "It's a plague on all of our houses."

 

The Republican Party in Minnesota, for the most part, has embraced the changes, and is actively involved in judicial elections like never before. "I believe in democracy," says Bonn Clayton, chair of the GOP's judicial election committee. "We can't have a democracy without electing judges in my view."

At the GOP's state convention in June, three incumbent judges received the party's backing: Supreme Court Justice Barry Anderson and Court of Appeals Justices Christopher Dietzen and Gordon Shumacher. None of the three, however, showed up to accept the party's support. And Anderson, a former staff lawyer for the state GOP, explicitly rebuffed the party's embrace. "I believe that partisan political endorsements are neither appropriate nor helpful in maintaining an impartial judiciary," he said in a press release. "I have respectfully declined such endorsements in judicial races in the past. I will not seek, nor use, partisan political endorsements."

As best can be determined, only one judicial candidate in the state has publicly welcomed GOP support. State Rep. Scott Newman, of Hutchinson, is leaving his legislative post to run for a judgeship in McLeod County and has been endorsed by the local chapter of the Republican Party. He is seeking to oust District Court Judge Mike Savre, who was appointed by Governor Pawlenty in 2004.

Newman's success, or lack thereof, will likely effect whether other judicial contenders will seek or accept partisan backing in the future. Judge Savre, who has explicitly rejected party support, says that he's uncertain what impact the GOP imprimatur will have on the race. "We're charting new territory," he notes.

In the campaign for Ostby's judicial seat, there's little evidence of the laissez-faire guidelines now governing judicial races. None of the aspirants has sought or received party endorsements. By a small margin, Benanav, a Democrat, has raised the most cash—a measly $17,800 as of August 21.

Benanav and Godfrey each stick to questions about Ostby's experience, rather than ideological issues, in explaining why they're taking on the incumbent. "The kind of thing I heard was that she was kind of going through on-the-job training," says Godfrey, "that she didn't really have trial experience and was struggling with the job." Benanav says that some people he spoke with about Ostby questioned her fairness in the courtroom. "A lot of it is anecdotal," he says. "It's always hard to rate a judge."

For her part, Ostby believes she's being targeted because she's not widely known by the public. "I think number one, I didn't have the name recognition of a career politician," she says. "For somebody who is politically astute, obviously they want a competitor who isn't well-known politically and doesn't have those ties and connections."

But Ostby seems to be faring pretty well for a non-politician. She's glad-handed potential voters at six parades and thrown out the ceremonial "last pitch" at a St. Paul Saints game. For the final weeks of the primary campaign, she's cut her work schedule down to one day per week in order to knock on constituent doors during the daytime hours. Her website even features a photograph of the judge with two Yorkie-poo dogs. Which undoubtedly means that, despite her protestations to the contrary, Ostby now officially qualifies as a politician.

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