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Friday, August 29, 2008

Clark applies to Justice Alito for injunction

Supreme Court candidate Jill Clark has served an Application to Circuit Justice for Injunction Preventing Unconstitutional Text on Election Ballot for Minnesota Supreme Court Pending Review by Supreme Court of the United States and presumably forwarded the same to U.S. Supreme Court Justice Samuel Alito, the circuit justice for the Eighth U.S. Circuit. She is contesting the denial of such relief by a special five-judge panel appointed by the Minnesota Supreme Court.

Clark has requested Alito to enjoin Minnesota from printing the name of Minnesota Supreme Court Justice Lorie Gildea—whom she refers to as “vacancy-filler”—or from printing incumbent by her name on the Sept. 9 primary ballot. Clark argues that the practice of labeling “incumbent” a judicial candidate who was appointed by the governor and is running for the first time is unconstitutional because it “eviscerates the rights of voters, who should be choosing their judges by election.”

Clark makes some interesting comments in her application, to wit:

1. The Minnesota Supreme Court panel that denied her motion issued its opinion a “mere two hours” after the argument, without “defending itself.” “It appears this could be a ‘lay up’ for this Court to enter [an] injunction pending review, as if the talented Justices on the Panel knew what had to be done, but could not bring themselves to do it.

2. That Clark refused to sign a “missive” from the Minnesota State Bar Association that would waive her federal rights under Republican Party v. White and that the MSBA is “closely aligned” with the state courts, and members of the judiciary sit on its council and “guide its actions.”

3. That the governor illegally appointed “vacancy-filler Gildea” to Associate Justice, after the governor created a vacancy in the seat [by appointing Russell Anderson as chief justice] in order to appoint Gildea and intentionally avoid an election. “The Governor pulled similar tactics to prevent the Chief Justice Seat from going to election. Indeed, a ‘retiring’ Supreme Court Justice ‘bargained’ with the then governor—if she agreed to retire early—would he agree to let her pick her replacement. That retired Justice was quite public about her ‘bargaining power.’(See Ex. 8 to Ex. C). But that little ‘bargain’ intentionally disenfranchised Minnesota voters.”

I’ve called Clark’s office to ask for Ex. 8 to Exh. C. Exhibit C is an affidavit written by Clark accompanying her submission to the Minnesota Supreme Court. Clark is in court and hasn’t responded yet.

Clark argument relies on Republican Party v. White, decided in 2002 before Alito was named to the court. Alito is often said to “follow” Justices Antonin Scalia and Clarence Thomas, who were in the majority on White.

Judge Blakely facing discipline charges

It appears that Goodhue County District Court Judge Tim Blakely is in hot water with the Minnesota Board on Judicial Standards.

According to news reports, Blakely faces discipline for getting a huge discount on his divorce bill after sending business to his lawyer. The board’s complaint says the judge got a $63,503 markdown on his bill after he began appointing his attorney, Christine Stroemer, as the mediator in cases he oversaw as a judge. The board contends that Blakely’s actions violated the judicial canons requiring judges to preserve the integrity and independence of the judiciary as well as avoid the appearance of impropriety.

Blakely denies any wrongdoing and points out that Hennepin County Attorney Mike Freeman's office reviewed the board’s contentions and declined to prosecute him.

The Minnesota Supreme Court will ultimately determine whether there is cause for discipline, but it seems to me at least that whether or not the judge actually meant do anything wrong, his actions just don’t pass the smell test.

Thursday, August 28, 2008

Clark seeking U.S. Supreme Court review of ballot challenge

Jill Clark, candidate for a seat on the Minnesota Supreme Court, is planning to seek U.S. Supreme Court review of this week’s order denying her request to remove Justice Lorie Gildea’s name from the upcoming primary ballot.

Clark filed a “Motion to Suspend the Rules for Emergency Order on Petitioners’ Motion To Issue Writ of Mandamus Pending Review and Decision of the Supreme Court of the United States and Motion for Such Relief” on Aug. 27. She requested an order compelling that Gildea’s name be removed from the ballot or, in the alternative, that the designation of “incumbent” be removed.

The Supreme Court panel assembled to hear this matter denied the request today, Aug. 28. “Petitioners’ motion for relief does not seek to preserve the status quo pendent lite in the Supreme Court of the United States. Rather, it seeks, on an emergency basis and purportedly only pending a ruling from the Supreme Court, precisely the relief sought in the petition on the merits, which this court denied in its order of August 26. Petitioners have provided neither rationale nor legal authority for granting, pending appeal, the very relief already denied by the court, particularly where that relief would deny a candidate a place on the ballot and therefore require a new election if petitioners are unsuccessful on the merits,” wrote Acting Chief Justice James Gilbert for the Court.

Clark had also requested an expedited briefing schedule, which was denied as moot.

A spokesperson from Clark’s law office, who would not give her name except as “Peggy,” said that today’s order was needed in order for Clark to move on to the U.S. Supreme Court, and said that the candidate was preparing an “Application for Injunction Pending Petition for Certiorari.”

Target settles Web suit with the blind federation

Target logo
Minneapolis-based Target agreed to pay $6 million to settle a class action suit in California with the National Federation of the Blind, The Associated Press reports.

The settlement, announced Wednesday, requires Target to make its website more accessible to the blind by Feb. 28, 2009. The company will also work with the federation over the next three years to test screen-reading software.

Tuesday, August 26, 2008

Clark loses challenge to primary ballot

Candidate Jill Clark’s challenge to the candidacy of incumbent Supreme Court Justice Lorie Gildea, right, was denied today, just hours after being heard.

A special Supreme Court panel denied Clark’s petition to remove Gildea from the primary ballot or remove the designation “incumbent” from the ballot. The court said, “So as not to impair the orderly election process, this order is issued with opinion to follow."

Arguments heard in Clark-Gildea flap

A five-member panel heard oral arguments this morning regarding the petition filed by Jill Clark, who is running for office against Supreme Court Justice Lorie Gildea.

Clark argued that it was unfair, and possibly even unconstitutional, to have Gildea listed on the ballot as an incumbent, and asked that either Gildea be removed from the Sept. 9 primary election ballot, or have her status as incumbent removed.

She also argued that since Minnesota first passed a statute putting candidates’ incumbent status on election ballots in 1949, only two Supreme Court Justices have been elected without being appointed first by a governor -- Donald Peterson in 1965, and Alan Page in 1992. That pattern indicated an unfair advantage for incumbent candidates, she said.

Arguing on behalf of the respondents, who included Gov. Tim Pawlenty and Secretary of State Mark Ritchie, Rice County Attorney Paul Beaumaster said it would not only be impractical and prohibitively expensive for all 87 Minnesota counties to change their ballots two weeks before the primary, but that the counties wouldn’t have the discretion to do so without the go-ahead from the Secretary of State’s office -- which would in turn need to be ordered to do so by the court.

More information on today’s hearing will be in Monday’s issue of Minnesota Lawyer.

The innocence of the joint vehicle owner

The Court of Appeals today ruled that a jointly-owned vehicle should not be forfeited based on the illegal conduct of one of its owners when the other owner proves by clear and convincing evidence that he or she did not know the vehicle would be used illegally.

In Laase v. 2007 Chevrolet Tahoe, a case of first impression, the wife pled guilty to second-degree DWI-refusal to test, and had a prior conviction. The husband persuaded the trial court that he did not have actual or constructive knowledge that the vehicle would be used illegally. This innocent-owner offense is set forth in Minn. Stat. sec. 169A.63, subd. 7(d) but has never been applied in a joint owner situation. The appellate court did not elaborate on the nature of the husband’s proof and said that the statute should be liberally construed.

Judge James C. Harten wrote the opinion, in which Judge Matthew E. Johnson concurred. Judge Kevin G. Ross dissented.

Monday, August 25, 2008

Gildea, Clark panel: The final answer (so far)

It took a few tries, but the court has assembled a panel to hear arguments in a petition filed by Jill Clark, who is running for office against Justice Lorie Gildea.

Clark wants to remove Gildea’s name from the ballot or at least remove the incumbent designation. The court has naturally recused itself and last week a panel of former justices was named: Acting Chief Justice James Gilbert and Justices Sam Hanson, Edward C. Stringer, Esther M. Tomljanovich and Lawrence Yetka.

But then Hanson, Stringer and Tomljanovich rescused, since they were listed as supporters on Gildea’s Web site. Oops. Named to replace them were Court of Appeals Judges Bruce Willis and Roger Klaphake and Hennepin County District Court Judge Marilyn Rosenbaum.

Double oops. The judge’s wife, Carol Klaphake, is also listed on the Web site. Replacing Judge Klaphake is Judge Gordon Shumaker. No Shumakers on the list.

Argument is scheduled for Tuesday morning.