By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Dan Griffith is not the sort of candidate to run on his experience. He barely mentions his 15 years as a lawyer, the time he spent as assistant city and county attorney in the International Falls area, or that he received the Advocacy Achievement Award from Legal Services for his work with the disadvantaged—all of which would seem to be important qualifications in his bid for one of two statewide openings on the Court of Appeals.
No, what Griffith wants to talk about is the state constitution. Specifically, article VI, section 7, which says that judges "shall be elected by the voters from the area which they are to serve."
"Judges probably have more impact on our individual rights and freedoms than any other public office holder," Griffith says. "I don't think people realize it, but there is a very organized effort in this state to take away your right to vote for judges."
Griffith, 46, is talking about the work of the Citizens Commission for the Preservation of an Impartial Judiciary, chaired by former Gov. Al Quie. Established in 2006, the Quie Commission has lobbied the Legislature to change the constitution, proposing a model based on gubernatorial appointments and retention elections.
Under the Quie Commission's plan, which is supported by the Minnesota Bar Association, judicial candidates would not be elected at all. Instead, the governor would appoint justices for an initial four-year term from a list put together by a merit selection commission. The governor and the chief justice—a position the governor appoints—would select attorneys and other professionals to serve on the commission.
"People who support this approach believe it's vitally important in this age of complex legal issues that we get people who are legally knowledgeable and temperamentally suited for the bench," says John Kostouros, director of the state court information office. "It really comes down to sort of competing values: the idea that elections should be open to anybody and anybody should be able to win if they can convince the voters to vote for them, or the value of knowledgeable people selecting good-temperament judges because of the important role they play."
The Quie Commission has proposed that the state hold retention elections after each initial term. Instead of running against someone, as judges do now, candidates would run against themselves in an up or down vote. Another committee, also set up by the governor and the chief justice, would evaluate judges who are up for election, marking them "qualified" or "not qualified." Voters would then be advised of this evaluation on the ballot to help them make an informed choice.
"That's not a democracy," exclaims Griffith. "The whole essence of a democracy is that we the people need to choose our leaders, yet the mind-set among some is that people aren't really smart enough for that, so someone else should do it for them. That's exactly what we fought against at the birth of this nation. We say we want to keep politics and special-interest money out of judicial selection, but giving the power to appoint all our judges to one partisan political figure who accepts special-interest monies, the governor, is not the way to do it."
Griffith is not alone in his criticism. Susan Miles, the vice president of the Minnesota District Judges Association, argues that retention elections don't fully insulate against politics seeping into judicial races. A special-interest group could still ambush judges to get them tossed off the bench—for example, the big-business lobby could run commercials against a judge who favored consumer rights. Members of the District Judges Association are also concerned about who would evaluate them and how that evaluation would be conducted, she says.
"These are details that are very important to the judges," says Miles. "And in the bill that was proposed last session, even the proponents would admit that the performance evaluation piece of that bill had some serious flaws."
Although the Quie legislation never made it past committee, proponents plan to introduce it again this session to counter the potential ramifications of a 2002 U.S. Supreme Court ruling that found limiting judicial candidates' campaign speech violates the First Amendment. Proponents of appointive systems argue that it's the only way to keep the more sordid side of politics from tainting the bench.
"Judicial independence and impartiality—the guarantee to every individual a fair trial—can only be preserved when judges are not obligated to political parties, constituents, or donors, and unfettered by fear of public reprisal for an unpopular decision," says Minnesota Bar Association President Michael J. Ford.
Changing the system has become Griffith's hobby and passion. He has run for a seat on the appeals court twice before—in 2004, garnering 37 percent of the vote, and in 2006, when he nearly reached 44 percent. If elected, he would be the first justice on the appeals court ever to be selected by the voting public—it's common practice among judges to resign before their term expires, allowing the governor to appoint their replacement.
Griffith says he's running on principle and not against any particular candidate, but the truth of the matter is, he does have an opponent: incumbent Judge Terri J. Stoneburner.