SIOUX FALLS, S.D. (KELO) — Along with candidates and ballot questions, voters will vote on circuit judges. 

According to the South Dakota Unified Judicial System, circuit judges are elected by voters in the circuit they represent every eight years and in 2022, all 44 circuit judges in South Dakota are subject to election. South Dakota is split into seven circuit courts, Minnehaha and Lincoln Counties are the only two counties in the second circuit. For the second circuit, there’s 12 circuit court judge positions on the ballot but only one is contested between Doug Barnett and Eric C. Johnson. 

So what do circuit judges do? 

“Those people make important decisions about the lives, liberty and property of South Dakota citizens and that’s really important,” Neil Fulton, the Dean of the Knudson School of Law at the University of South Dakota, told KELOLAND News. “A circuit court judge is the trial level judge of general jurisdiction, meaning they hear criminal cases, all types of civil cases and other things in the courts of South Dakota.” 

Fulton said circuit judges impact law-abiding citizens, not just people facing criminal or civil charges. He pointed to sixth circuit judge Christina Klinger’s initial ruling on Amendment A violating the single-subject rule of the Constitution in early 2021

“They are making decisions, not only about how the law applies in individual cases at some instances, but what the law says,” Fulton said. “Those rulings about what the law says can have a more generalized impact on how certain statutes are interpreted and applied to all of us as citizens.”

Fulton noted all circuit judges are evaluated when appointed by the governor by the Judicial Qualifications Committee. That group makes recommendations to say whether a person is or is not qualified based on personal conduct or professional qualifications to be a judge. 

“Judges are also chosen in open elections,” Fulton said. “In those instances, the voters are going to decide if those people have the right temperament and qualifications to be a judge.” 

When many circuit judge positions aren’t contested, Fulton said it typically proves the governor made a good selection and people recognize the person is someone who should be serving on the bench.

When there are contested circuit judge positions, like the five-candidates looking to succeed Circuit Judge Kevin Krull in the fourth circuit, Fulton said it’s a lawyer saying I want to be a judge and I’m more qualified. Fulton said more than 40 states allow voting on their judges and it’s almost an even 20-20 split on nonpartisan and partisan elections with judges. 

“Judges need to be neutral in their application of the law and I think keeping those elections nonpartisan is a key part of that,” Fulton said. 

South Dakota’s judge elections are nonpartisan elections and the special committee on judicial election campaign intervention provides advisory opinions on ethical issues that come up during judicial elections. 

That committee has issued two opinions this year regarding campaign finance disclosure reports and code of judicial conduct to family members.  

Fulton encouraged people wanting to learn more about circuit judges to speak with local lawyers about the judge candidates. 

“Vote on this and all the other important issues on the ballot,” Fulton said. 

Lack of diversity for circuit court judges 

Similar to the diversity of statewide candidates, there’s a lack of circuit judges and circuit court judges.

Fulton said it is important for courts to do justice and appear to do justice. He said faith in the judicial system can be undermined when a person of color comes into the court and sees the judge is someone who doesn’t look like them. The same goes for prosecutors, defense lawyers and jurors, Fulton said.    

“Our bench is not as diverse as the state or as diverse as the legal profession as a whole yet,” Fulton said. “Diversity of perspectives and backgrounds is very important in having judges who not only understand how the law applies, but maybe will understand the position of litigants, particularly in criminal cases. I think that’s a real consequence.” 

A South Dakota Searchlight story highlighted no people of color have ascended to the circuit bench. The South Dakota Unified Judicial System doesn’t track the race or ethnicity of circuit court judges. 

“There’s progress that’s been made and there’s progress yet to make,” Fulton said. “The profession is diversifying. Certainly, we’ve seen our last two law school classes be our two most racially diverse in the history of the law school. I think that’s going to ripple out through the profession and I hope eventually through the judiciary.” 

Fulton said a lot of progress has been made on gender diversity and judges. He noted how few women held judge positions when he started practicing law and now the entire sixth circuit is full of female judges. 

“I think that’s great progress. The bench will continue to diversify, not only racially and on gender basis, but also on experience,” Fulton said. “I was a public defender before I became dean. More prosecutors become judges than defense lawyers and I think that’s another diversity of perspective and background that’s really important to be reflected.”