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Wednesday, August 13, 2008

Jill Clark seeks to get her opponent, Justice Lorie Gildea, disqualified

We told you the race for Justice Lorie Gildea's seat would be particularly interesting to watch this election season, and so far it hasn't been disappointing.

Jill Clark (on left), one of three candidates challenging Gildea (on right) for the seat, has filed an action with the Minnesota Supreme Court seeking to disqualify Gildea and have the justice's name removed from the ballot. The crux of the argument is that Gov. Tim Pawlenty originally appointed Gildea as a seat holder under the constitutional provision allowing governors to fill judicial vacancies until a "successor" is elected. Clark argues that Gildea cannot be her own "successor," and therefore is ineligible run for her own seat.

It's a novel argument unlikely to wash given that it flies in the face of the longstanding procedures under which most of the members of the state's judiciary initially got and retained their seats. (The vast majority of judges in Minnesota, like Gildea, were originally appointed by the governor and then stood for election to retain their seats.)

Clark also seeks to strike the statutorily authorized language from the primary ballot identifying Gildea as an incumbent. Challengers historically have not liked the incumbency designation because of their feeling that voters, often acting with little actual other knowledge of the candidates, tend to favor the incumbent in judicial elections. However, no prior challenge to this designation has ever been successful.

I think there is little probability Clark will prevail with either of these requests. More significant is what they demonstrate about Clark the candidate; the Minneapolis lawyer will apparently pursue her judicial campaign with the same aggressiveness for which she has become known in her litigation practice. It's highly unusual for a candidate in a judicial campaign in Minnesota to make such a public lunge for her opponent's jugular, particularly when her opponent is a sitting Supreme Court justice.

The other candidates running against Gildea are public defender Rick Gallo and Hennepin County District Court Judge Deborah Hedlund. The field will be weeded down to two in the September primary.


Anonymous said...


Anonymous said...

According to the memorandum, Minnesota was admitted to the Union in 1958. Must be a typo.

Anonymous said...

Mark: Reading the petition (without looking at the underlying law) it seems as though the arguments are pretty good, at least textually. I reread your post which seems to suggest that since this is the way things have always been done, Ms. Clark is likely to lose. That argument does little to satisfy my curiousity. Is it accurate that the Governor is getting around the mandatory election issue through intentional early retirements? It smells a little fishy. But, as you say, since most of the judges were appointed in this manner she is likely to lose. Perhaps the entire court will recuse itself...again.

Mark Cohen, editor said...

I understand the argument around the word "successor" as an exercise in semantics. That said, I would have real difficulty believing the drafters of the state Constitution intended to create a situation that any lawyer in the state could run for a judgeship except the one who agreed to fill it (pursuant to a consstitutionally authorized gubernatorial appointment) until the next election. I am unaware of any state that follows such a procedure, and find it a bit of a hard sell that the Founders of our state intended to implement such a unique secenario in Minnesota without any evidence they first discussed it.

However, that said, Clark is certainly within her rights to file this action. It's just an unusual tactic for someone pursuing a seat on the bench to bring an action that effectively questions the legitmacy of virtually all her potential fellow judges.

It has been reported the Supreme Court may refer out to a referee, which might be a smart way to go given that every Supreme Court justice but one got their seat through the appointment process Clark challenges.

Anonymous said...

Interesting post 12:03. Does anyone have any statistical data as to how many appellate judges take an "early retirement" (which of course allows the governor to appoint)? Is it unconstitutional if a justice notifies the governor that she is retiring early to avoid the judicial election process?

Anonymous said...

Why doesn't this site have Gildea's response in a PDF for us to view?

Al said...

Let's not be too quick to judge Clark on her aggressive nature. There is, after all, her humble side demonstrated in an MPR interview:

'When asked if she considered herself brilliant, Clark responded, "I do. I think it, because people tell it to me all the time."'

Anonymous said...

I was convicted in Judge Gildea's courtroom in Hennepin County. Just one problem though - I was not guilty. Wrongful prosecutions against innocent people should be corrected. And Judge Gildea should have spotted the obvious mistakes. Oh well....perhaps my life is less important than those who will benefit by her vast experience in the future. My name is Thomas Hussman and I am not happy.