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High court justices' fate up to voters

But issue attracts little attention

PUBLISHED: October 12, 2006

PIERRE - All five of South Dakota's Supreme Court justices face re-election next month, although a voter might be forgiven for not knowing that.

The justices run in a typically quiet retention election, not the noisier atmosphere of a competitive campaign. Voters make a yes or no decision on each of the five judges, basing their decision, in theory, on the performance of each member of the Supreme Court.

In reality, a lot of people won't know they have a voice in the Supreme Court process until they see the ballot, said Barry Vickrey, dean of the University of South Dakota School of Law.

"Certainly with this year's long ballot, what are essentially uncontested (Supreme Court) races aren't likely to get much attention from the public," Vickrey said. "Do most people know the justices and their records? I doubt it, candidly. You aren't going to see the TV spots. You aren't going to see advertising."

Still, the voting public has the ultimate power of either retaining or turning out one or all of the five justices, each of whom makes a bit short of $106,000. If the justices pass this year's vote, they'll face the voters again in a retention election in eight years.

"Although each of the justices represents a district of the state, all five names will be on all of the ballots statewide," said Kea Warne, state election supervisor.

On the ballot are:


  • Chief Justice David Gilbertson, named to the court March 31, 1995.

  • Justice John Konenkamp, named to the court Sept. 10, 1994.



  • Justice Judith Meierhenry, named to the court Nov. 8, 2002.

  • Justice Richard Sabers, named to the court March 1, 1986.

  • Justice Steven Zinter, named to the court Jan. 29, 2002.


    Each of the justices was recommended by the state Judicial Qualifications Commission and appointed by the governor sitting at the time.

    If voters would toss out one of the sitting judges, the commission - composed of two judges, three lawyers and two lay members appointed by the governor - would recommend at least two choices to the governor. The person appointed would serve three years on the high court and then stand for retention at the next general election. If retained, the new justice would be subject to retention election again in eight years.

    No justice ever has failed to clear a retention election in South Dakota.

    But it isn't easy running in such an election, says former Chief Justice Robert Miller of Pierre. He ran in competitive campaigns as a circuit judge and stood for two retention elections as a member of the Supreme Court.

    "It's hard to describe a retention election," Miller said. "You're sitting there not knowing the feeling of the people. There's a few stomach anti-acids until the first few returns start coming in."

    The retention system makes sense, though, Miller said.

    "If you're doing the job, you should get the support," he said. "Typically, in states where people do remove a judge through the retention process, there's an issue that has caused a great public clamor or some questionable conduct."

    South Dakota voters two years ago rejected a proposed constitutional amendment that would have extended the retention system to circuit judges.

    Vickrey says the retention method for Supreme Court justices is a hybrid of the federal "appointment for life" system and the existing competitive-race circuit approach.

    "I think there should be a heavy burden on anyone who wants to remove a Supreme Court justice," he said. "It seems to me if nobody feels strongly enough about one of the justices to wage a campaign against that person, then they're doing a pretty good job."

    Reach Terry Woster at 605-224-2760.


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