One of the most important responsibilities every Minnesota governor encounter is the job of filling vacancies as they occur in our state judicial system. As violent crime increased dramatically throughout the state in recent years, more attention (see article below) has been paid to this important gubernatorial task and a few of us have been keeping an eye on who exactly is being appointed to the bench.
These appointments are extremely important –not only to victims of crime but also to those who stand accused of committing a crime or even to those who simply want to conduct business in Minnesota. Everyone who stands before a judge needs every assurance that this judge is unbiased and will adhere to Minnesota laws and regulations as written and will not hold any bias or discrimination against the accused.
Minnesota has an unusually large judiciary with seven Supreme Court justices, 19 appellate court judges, and 289 trial court judges in 10 judicial districts spread across Minnesota’s 87 counties. While anyone with a law degree can run for a judicial opening when they appear on the ballot, very few do. Technically, our judges are “elected” not appointed: the governor gets the right to appoint when a judicial vacancy occurs mid-term, meaning that every judge appointed by the governor serves only until the next election when their name appears on the ballot. Very often they run unopposed.
The criteria set forth in the Minnesota Constitution for judicial appointment qualifications is fairly vague: that document suggests that appointees be “learned in the law” and “under 70 years of age” and at least 21 years old.
Statute requires that governors, including Gov. Walz, establish a “Commission on Judicial Selection” (or commonly referred to as the governor’s Merit Selection Panel) to recruit, screen and recommend candidates for vacant judgeships as they occur. These commissions afford one degree of separation between the governor who ultimately appoints someone for the job and those potential candidates recommended by the commission who didn’t get the job.
In April the eight members of Walz’s statewide judicial commission recommended four candidates for what would become the governor’s sixth appointment to the state Court of Appeals. Three of the four recommended candidates currently serve as a Minnesota district court judge while a fourth candidate has no judicial experience. After the commission puts forth their recommended candidates, the governor typically interviews each of them to determine which individual best meets his criteria for the appointment.
As such, it was surprising to see that in April, the candidate with no previous judicial experience received the appointment to the appellate court bench. That candidate and now Appellate Court Judge is Elise Larson. Ms. Larson, originally from Brainerd, has been an attorney at the Minnesota Center for Environmental Advocacy while also serving as adjunct faculty at the University of Minnesota Law School where she supervises the Environment and Energy Law Clinic.
Previous representation includes: Center for Biological Diversity, Duluth for Clean Water, Friends of the Cloquet Valley State Forest, Friends of the Boundary Waters Wilderness, Izaak Walter League – W.J. McCabe Chapter, Save Lake Superior Association, Save our Sky Blue Waters and of course the Minnesota Center for Environmental Advocacy – her employer.
Her background as an environmental litigator is important in this context: in recent years, many Minnesota corporations have faced extended and very expensive litigation regarding proper land and water use, two name just two issues. Several of the most important cases have been instigated by now-Judge Larson and the various environmental organizations who have employed or retained her. It is quite possible that one or more of the cases she filed while serving in private practice will someday come before the state Court of Appeals. We are, of course, certain that Judge Larson will recuse herself whenever there is even an appearance of a conflict of interest – that’s not the issue here.
What is at issue with this unique appointment is Walz’s consideration of judicial temperament. According to the American Bar Association, “judicial temperament means that a judge exhibits ‘compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.’”
That’s an enormous consideration, to say the least, when deciding who to appoint to the bench. The photo accompanying this commentary also says a lot about Ms. Larson and her judgment and commitment to “serve” previous clients.
Judicial appointments won’t receive any consideration during the upcoming gubernatorial contest but perhaps they should. The appointment of activist judges – judges who insert their own personal or political biases in deciding cases before the court is increasingly dividing our state and our country. And seeing photos like the above of a MN Court of Appeals judge doesn’t do a lot to inspire confidence to many of us that this judge possesses the even-minded temperament to decide appeals based upon written law rather than political or social precedents.
We all learned in eighth grade civics class that legislators are elected by voters to represent us and create law. Judges are appointed or elected to uphold the law – as written. Acting as a court, the intent is for the judge to use their keen legal experience to ascertain what the legislature meant when the bill became law – not necessarily what the judge believes is the best outcome. When we have courts filled with activist judges who believe they know the best policy direction for our state, our county or our city, our state and our nation are in peril.
