Legal philosophy, judicial activism, and the election contest for Court of Appeals Seat 16

November 1, 2002

Commentary:
Legal philosophy, judicial activism, and the election contest for Court of Appeals Seat 16

by Clara NiiSka

The legal system is the “third branch” of federal and state government in the United States.

Courts, through the decisions of judges and Supreme Court justices, mediate disputes and influence the structure and direction of society.

Violent force, including the ultimate socially-imposed sanction of death in federal and some state jurisdictions, is administered through the courts by judges. In Minnesota, judicial decisions are potentially a life-and-death matter only for Indians subject to federal “Indian major crimes” jurisdiction on Red Lake and Nett Lake reservations, but Minnesota judges still wield enormous power. Shall a person go free, or rot in prison for the rest of his or her life? In whose family shall children be raised? Is a person to be stripped of his or her possessions and perhaps plunged into insurmountable debt from fines, legal fees, or court-sanctioned seizure of property? How will the statutes enacted by the legislature actually affect social policy? It is judges who determine the legal “reality” and relevance of facts, and who weigh the sometimes complex balance of statutes, bureaucratic regulations, common law, and the state and federal constitutions.

In Minnesota, most judges come to ‘the bench’ through executive appointment, and remain there through voters’ affirmation in often-uncontested judicial elections. The incumbent Ventura administration deliberately selected an ethnically diverse judiciary from among those candidates who qualify in terms of “merit.”

The U.S. Supreme Court’s June 27, 2002 decision in Republican Party of Minnesota v. White, Chairperson, Minnesota Board of Judicial Standards has recently shifted the balance of judicial selection. Ruling in a case brought by the Republican Party’s challenge to the Minnesota Board of Judicial Standards’ cannon of judicial conduct, the U.S. Supreme Court held that barring candidates for judicial office from “announc[ing] his or her views on disputed legal or political issues” was a violation of the ‘freedom of speech’ protected in the first amendment to the U.S. Constitution.

The race for Seat 16 on the Minnesota Court of Appeals reflects the U.S. Supreme Court’s recent ruling. Although election of appellate judges and Supreme Court justices is only rarely contested, Wells Fargo tax attorney Jeff Sloan is challenging incumbent Judge Terri Stoneburner in the statewide election for Seat 16, and he is talking about “disputed … issues.”

In an interview with Press/ON, Judge Stoneburner agreed with this writer that an election race for a judicial seat was “unusual,” although, she added, Judge Fred Norton’s re-election was contested in the early 1990s, and Judge “Gordon Schumacher had a contested race last year.”

The other contender for Seat 16, Jeff Sloan, describes uncontested judicial races as an ‘ugly practice.’

There have been a few newspaper articles and letters to the editor about the Seat 16 judicial election, and both incumbent and challenger have posted web pages. Terri Stoneburner’s campaign homepage is at http://www.judgestoneburner.org and Jeff Sloan’s is at http://home.mn.rr.com/sloanforjudge/

Judge Stoneburner is a fascinating, articulate, and intelligent person, and with the tape recorder running, she spent more than an hour talking with this writer.

Press/ON also telephoned Jeff Sloan and asked for an interview. With deadlines impending, a face-to-face interview was not feasible, but Sloan talked at some length over the telephone.

There are several dimensions to the contest for Seat 16. Among the differences between the candidates are their background and experience.

Stoneburner is in her late 50s and served as a Judge for the 5^th District Court in New Ulm for ten years before her appointment to the Court of Appeals in April 2000. She has a broad range of experience, including as a Vista volunteer, and she has served on several judicial task forces. Her resume is posted on her campaign website.

Sloan is in his thirties and has no judicial experience beyond law school. Press/ON asked him about his qualifications to serve as a judge on the Court of Appeals. He said that he has worked as “a tax lawyer for six years,” and in his opinion that’s “enough experience.”

Press/ON asked both candidates about their judicial philosophy, their understanding of the role of the Court of Appeals, and how a Court of Appeals judge’s philosophical orientation might affect his or her interpretation of the law.

Judge Stoneburner stressed that ‘interpretation’ of laws takes place primarily “at the Supreme Court level, both state and federal, because both of those courts are policy-making courts.” When a case involving a legal issue which has never been decided before, for example whether or not a particular statute is constitutional, then the judges on the Court of Appeals “would do our best job, but our main role at the Court of Appeals is as an error-correcting court for the district courts.” When a case involving major and unsettled legal issues is appealed, she added, then the Court of Appeals may be bypassed and “the issue would go directly to the Supreme Court, because our real job” as judges on the Court of Appeals “is to apply the existing law to the facts of the case, and not to create new law.” When deciding a case before the Court of Appeals involves “an issue that there’s no existing law on … we research, we look at other states, and we make our best determination about what the law should be, and those cases often are taken by the Supreme Court.” At the Court of Appeals level, she said, “our real role is not as a policy-making court.”

Jeff Sloan, on the other hand, is sharply critical of “judicial activism.” On his web page, he castigates judges “appointed … by former pro wrester Governor Ventura” for “issuing ridiculous and politically-motivated decisions,” and describes “my opponent” as ruling the courts with “politics and moral relativism.”

Judge Stoneburner said that with “many of the ‘hot-button’ issues, there are all kinds of layers and complexities. I think that there’s lots of things to weigh and consider.” She stressed “the importance of thoroughly researching an issue before forming an opinion about it.” She countered her opponent’s charges of ‘judicial activism’ by explaining, “I don’t have any personal agendas that would keep me from applying existing law … people with an agenda to change the law should be in the legislature, not on the bench.”

Jeff Sloan said that according to his legal philosophy, “you need to take all that out, the interpretation.” A judge should determine cases in terms of “the intent of the legislature, uphold the original philosophy,” he continued, “I believe in stare decisis. You need to stick to the chain of command … stick to the original understanding of the law … be consistent.”

For Jeff Sloan, there is a “hot button” issue in the race for Seat 16. His internet campaign material includes a link to a transgender support group’s ‘news release’ posting of Judges Stoneburner, Foley, and Mulally of the Court of Appeals’ decision in the case Julienne Goins vs. West Group (November 2000). The issues appealed included determining whether or not the District Court erred in its summary judgment to dismiss a Human Rights complaint filed by Julienne Goins. The Court of Appeals ruled that Goins’s human rights complaint involved “a genuine issue of material fact,” so the District Court erred in dismissing the case without trial. The Court of Appeals reversed the summary dismissal and remanded the case for trial. In part, the Court of Appeals based its ruling on a legal definition in the Minnesota Human Rights Act (MHRA).

The Minnesota Supreme Court reversed the Court of Appeals, finding that the Court of Appeals had read the definition in the MHRA too “broadly” and that the case should have been determined in terms of common-law “cultural preference” rather than a broad reading of the definition in the Human Rights Act.

According to Judge Stoneburner, “These issues are all multi-layered. What I decide in a particular case depends on the case … not yes-or-no, pro or con issues. I also try to caution people that it’s wrong to assume that the American … law is a moral code, it isn’t really a moral code … I don’t make moral decisions, I make legal decisions. … Sometimes there’s a very big difference, and I think that the whole civil rights movement proves that. The laws were not in tune with what a moral action should be.”

Jeff Sloan stressed “legislative intent.” He explained that the law should be understood in terms of its “literal” meaning, and people “need to read the text and figure out what [the legislature] meant when they passed the law.” He advocated, “shifting the balance from common law to statute law,” although, he said, he would not disregard common-law interpretations well-entrenched “in stare decisis. There is a lot of common law that goes way back,” he explained, although “most common law has been codified” in statutes. Judges, he added, “clearly should not be remaking … laws based on their own moral view when there is a statute out there. I do not believe that laws are ‘living documents’.”

Throughout the interview, Judge Stoneburner repeatedly expressed her interests in improving the judicial system, exploring alternatives like “restorative justice, asking ‘is there another way to handle this’ … in a more humane way?”

She also voiced her concerns about the underlying fairness of the judicial system. “When people lose the perception that the court systems are fair, I don’t think we’re going to have the same system of government any more. If people don’t feel that they can get a dispute fairly resolved in the legal system, I think that they’re going to find other ways to resolve it … people have to believe it’s fair, that there’s dignity afforded them.”

Jeff Sloan also expresses concerns about fairness, writing on his website that he is running for judge, “to bring fairness and impartiality back to the courts. Too many of our judges use the bench to rewrite the law or make new laws in their own moral and political image. This must stop. Judges should interpret laws, not make laws.”

When asked about the “judicial activism” he decries, Jeff Sloan’s first example was what he calls a “bad decision” in the Goins case. He also pointed to case law in the state of Virginia which, he said, legitimized “gay marriage.” This writer commented that Minnesota statutes specifically prohibit recognition of same-sex marriages, even when the marriage took place in a state where such marriages are legal and recognized, so why would it be relevant in an election for a Minnesota Court of Appeals judge?

In this writer’s opinion, Jeff Sloan’s criticism of Judge Stoneburner’s decision in the Goins case, along with his apparently irrelevant discussion of Virginia case law and advocacy of a literal textual reading of statutes, probably reflects an ultra-conservative political philosophy which this writer does not have the background to completely understand.

In the wake of the U.S. Supreme Court’s ruling enabling judicial candidates to “announce their views on disputed legal and political issues,” it seems to this writer than the voters of Minnesota would be well advised to pay careful attention to what those judicial candidates are saying.