The Minnesota Supreme Court is expected to explain sometime this summer why it ordered the secretary of state to put a controversial Scott County judgeship on the November ballot. The court put Judge Eugene Atkins' seat up for election rather than allow the governor to appoint a successor.

	"When you have people...criticizing the judicial elections and arguing that it should be an appointment, that's fine," says Todd Zettler. "But we shouldn't, as lawyers, on our own decide, 'we know better, we're not going to follow what the Constitution says; we're going to save you from yourselves and we're just going to retire early and have the governor appoint.'"

The Minnesota Constitution says voters should elect judges. But if a vacancy occurs because a judge retires or resigns before his or her term ends, the governor fills that seat by appointment.

The controversy over the Scott County judgeship began when Judge Eugene Atkins announced he'd retire from the bench. Atkins' scheduled term ends Jan. 3. If he retired on that day, voters would choose his successor. But Atkins announced he'd retire Jan. 2, one day before the end of his term, thereby giving the governor an opportunity to choose his successor.

Attorney Todd Zettler argued Atkins was intentionally manipulating the judicial selection process so the governor would appoint Atkins' successor rather than the voters through an election. He told the Minnesota Supreme Court that if elections don't work than the state should go through the process of amending its constitution.

"When you have people...criticizing the judicial elections and arguing that it should be an appointment, that's fine," says Zettler. "But we shouldn't, as lawyers, on our own decide, 'we know better, we're not going to follow what the Constitution says; we're going to save you from yourselves and we're just going to retire early and have the governor appoint.'"

The Minnesota Supreme Court voted 4-2 to put Atkins' seat on the November ballot. Those in the majority included: Chief Justice Kathleen Blatz and Justices Alan Page, Paul Anderson and James Gilbert. Those in dissent: Justices Russell Anderson and Ed Stringer. It issued the quick ruling without detail so candidates would have time to file.

Judge Atkins won't comment on why he decided to retire early. He said doing so would be inappropriate since the court has not yet issued its opinion on the case. Nevertheless, Atkins is not alone in leaving before his term ends; 98 percent of judges in Minnesota leave mid-term. Northwestern University law professor Steven Lubet says judges in other areas of the nation also prefer to leave their seats to appointment rather than roll the dice with elections.

"The feelings are that judicial elections are messy and unreliable and that the appointive system as in the federal courts tend to produce a better judiciary and I think that's accurate," Lubet says.

When there's a mid-term judicial vacancy in Minnesota, the governor appoints a successor from three to five finalists selected by a 13-member non-partisan Commission on Judicial Selection. Some critics have said the process produces recommendations from an inside club of attorneys. Commission chairman George Soule says that's not the case.

"It's a very open public process, anyone can apply. This governor has appointed judges from all wings of the political spectrum and independence so it's wide open for anyone to apply to," he says.

Soule says the commission bases its recommendations on outstanding attorneys who have trial experience in the kinds of cases handled by district courts:

"And secondly as equally as important, someone who has a good demeanor who will be respectful to all the people who will come in, who will listen to both sides, who will be fair and treat people with respect, " Soule says. "We also want people who are involved in their community, community service, pro-bono work as lawyers."

The Minnesota Constitution gives a new judge one full year in office before he or she must run in the next election and then the seat is up for election every six years. Northwestern law professor Lubet says while challenges used to be rare in Minnesota, that's going to change in part because the U.S. Supreme Court has lifted speech restrictions on judicial candidates.

"I think you're going to see the dam break. The perception has been in Minnesota and in a lot of places there's no point in challenging an incumbent judge because the incumbents always win. But as soon as the first incumbent loses, you'll suddenly find lots of people interested in the job," he says.

What's believed to be an unprecedented number of candidates have filed for Atkins' judgeship since the court ordered his seat on the ballot. Todd Zettler and 11 other candidates have registered to run for Atkins' judgeship.