Minnesota Lawyer Blog

The Minnesota Supreme Court has issued a 35-page per curiam opinion in the case of Clark v. Pawlenty, Jill Clark’s challenge to the election procedures governing the upcoming Supreme Court race. Clark is challenging incumbent Lorie Gildea, along with Hennepin County District Court Judge Deborah Hedlund and attorney Richard Gallo.

The court –actually a specially designated panel, since the sitting court recused itself--last month denied Clark’s request to strike Gildea from the ballot or at least strike the incumbent designation. Clark argued that Gildea, as an appointed justice, was barred by the Minnesota Constitution from running for election to retain her seat. She also argued that the appointed justice should not be designated an incumbent and that the use of the incumbent designation was prohibited by Minn. Stat. sec. 204B.35 as well as the state and federal constitution. A full opinion was issued today.

The court’s opinion addresses the primary election and the general election separately. Addressing first the primary challenge, the court denied the petition on the grounds of laches. “[I]n the absence of the relief requested, petitioner Clark has not been barred from the primary ballot and petitioner [Heather] Robins will not be barred from voting for her (or any other candidate on the primary ballot). Given petitioners’ unreasonable delay in asserting the interpretations of the constitution and election statutes that they espouse here, and balanced against the significant potential prejudice to other candidates, and to the electorate, we conclude that it would be inequitable to grant the relief sought by petitioners with respect to the primary ballot even if we were to conclude that their arguments had merit. Accordingly we deny the petition on grounds of laches with respect to the primary ballot,” the court said.

The court then decided it would address the general election in advance of the primary results, in the interests of judicial economy and to remove uncertainty from the election process.
It then turned to Article VI, sec. 8 of the Minnesota Constitution, which says that when a judge is appointed to fill a vacancy, the “successor” must be elected at the next general election occurring more than one year after the appointment. The court declined to interpret “successor” as excluding the appointed judge currently holding the seat.

It also said that under the common usage of the word “incumbent,” Gildea could be designated an incumbent even though she was appointed to the seat. The court also concluded that the petitioner did not present any facts supporting her argument that the designation “incumbent” conferred an advantage, let alone an unconstitutional advantage. “[T]he effect of the challenged provisions on the asserted candidate and voter rights is no more than de minimis and does not warrant strict scrutiny. The purpose of the incumbent designation—to inform the voters—is sufficient to justify the minimal intrusion, if any, on petitioner’s First Amendment rights. We concluded that petitioners have not established any violation of their First Amendment rights.”
Clark is seeking an injunction from U.S. Supreme Court Justice Samuel Alito, the Eighth Circuit justice. She told Minnesota Lawyer today that she is advised that her petition was filed with the Supreme Court on Sept. 3 and is on its way to Alito.

Members of the Supreme Court panel were Acting Chief Justice James Gilbert and Acting Associate Justices Lawrence R. Yetka, Bruce D. Willis, Gordon W. Shumaker and Marilyn B. Rosenbaum.

We've written about RNC protests from the morning-after "riot court" perspective, but what about as-it-happens? Are the people as stupid, and the police as nasty, as many would have us believe? And what's with the bandanas?

I don't know — I'm not brave enough to find out. But thankfully, others in the media are.

A good reporter friend of mine was at the Target Center last night to stand vigil outside the Rage Against the Machine show. There were lots of RNC protesters. There were lots of cops. There were lots of arrests.

But here's a view from the inside, told first-person on his blog:

Oh. Man.

I almost got arrested tonight while on assignment covering RNC-related protestors. I had to kneel in the middle of the street with my hands on my head and a pepper spray gun trained pretty much directly on me. I then had to beg my way out of a mass arrest that netted 30 others. I'm glad I didn't have to spend the night in jail, but it all worked out swimmingly given that I have such a beautiful and trustworthy smile... :)

The whole entertaining story is here, at the From Minneapolis Media Dude, With Love blog.

A group of protesters march through downtown Minneapolis after a Rage Against the Machine concert during the Republican National Convention on Sept. 3, 2008. (Associated Press/Matt Rourke)

Courtroom 101 of the Ramsey County Law Enforcement Center Wednesday morning was bustling but well organized, as dozens of court employees, sheriff’s deputies, volunteer defense attorneys, county prosecutors, defendants and lookers-on conferred, scattered, and waited for their turn in front of District Court judge Joanne Smith.

Of the nearly 300 protesters arrested Monday and Tuesday in confrontations related to the Republican National Convention, about 80 were on the arraignment center docket for Wednesday.

Although it took until nearly 11 a.m. for the first case to be called, Smith and the attorneys present made short work of most cases, rambling through more than 10 in the first half-hour -- presumably to complete arraignments for defendants who by noon would have been held for 36 hours.

First up was Andrew Paul Temperante, who was charged with unlawful assembly. Volunteer defense attorney Conor Tobin presented a bail argument for Temperante -- who showed some civic pride by appearing in a Minnesota Timberwolves jersey -- by saying that his client was a lifelong resident of the Twin Cities who held a fulltime job at the Wedge Co-op in Minneapolis. Smith saw it the defense’s way, and released Temperante on reduced bail of $100 while continuing his initial court appearance until Sept. 25.

Noting the pace at which cases were being processed, one volunteer attorney was heard to remark, “My client has 10 people ahead of her, but the way they’re moving, I don’t dare leave to use the bathroom.”

With the state's judicial primaries now less than a week away, don't forget to check out Minnesota Lawyer's online judicial elections guide for full information about the judicial candidates involved in the four primary races. There are two state Supreme Court seats on the primary ballot. There will also be one trial court judgeship on the Hennepin County primary ballot, and one on the Ramsey County ballot.

You can get bios and photos of the candidates -- as well as their responses to Minnesota Lawyer's candidate questionnaire -- by clicking here. Don't forget to vote on Sept. 9!

Since (protest arrests aside) the Republican National Convention is occurring primarily in the political rather than the legal realm, we have not put much about it here. (I would suggest checking out two of our sister publications, the St. Paul Legal Ledger Capitol Report and Politics in Minnesota, for local convention coverage.)

I will say that for selfish reasons I was disappointed to hear that John McCain had jilted the governor of our fair state at the vice-presidential altar.

If McCain should win the election, I have no doubt Tim Pawlenty's efforts will be amply rewarded with some high-falutin' post in D.C. So, despite media reports of some bruised feelings in how the VP-selection process played out, I suspect Pawlenty will quickly shake off the dust and go about the business of stumping for his candidate. Therefore, it's not for Pawlenty you should be shedding tears, but for Minnesota Lawyer, which has now lost a great potential hook to this exciting election -- the first Minnesota lawyer on a major party's presidential ticket in 24 years.

There are some striking similarities between Alaska Governor Sarah Palin and Pawlenty. Both are governors who hail from Northern states, both like winter sports, both have sterling conservative credentials and both have last names that start with "P" (which apparently already has already caused some confusion). There are, of course, a few major differences (e.g. that pesky Y-chromosome Pawlenty carries).

There is another difference that interests me -- unlike Pawlenty, Palin is a nonlawyer. The choice creates a contrast between the competing party tickets. Both candidates on the Democratic presidential slate are lawyers, while both Republican candidates are not. Despite his lack of legal training, McCain can certainly hold his own in a debate. Palin remains a question mark at this point. It will be interesting to see what happens when she debates Joseph Biden, the formidable senator from the great state of Delaware who graduated from law school when Palin was 5. Going in as such an underdog could play to Palin's advantage. We will have to wait and see.

In the meantime, I would suggest that the lawyer candidates keep their distance from the current VP, who has a history of gunning for lawyers ...

Administrative Law Judge Eric Lipman has featured an interesting piece of legal research on his blog, “Within the Scope.” He notes that Harvard Law School Professor Cass Sunstein has concluded that the ideology of a judge’s colleagues is a better predictor of an outcome than the ideology of a judge. He argues that is because dissents are often futile and difficult to produce. Sunstein and colleagues studied 4,500 federal Court of Appeals three-judge panel decisions on administrative law that have been issued since 1995.

Lipman quotes Sunstein: “Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.

Lipman continues, “Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.”

Reasonable minds can differ on whether this is revelatory or a dog-bites-man conclusion. Lipman finds it “chilling.” He writes, “Are we really at the point where we say: ‘Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?’”

I spent this morning over at Civic Fest, which bills itself as a very Minnesota celebration (whatever that means). For those of you who have not been following it, Civic Fest is a family-friendly "multimedia experience" focusing on local and national history, including the American presidency. Among the traveling exhibits are a miniature recreation of the White House, historical documents (including the Declaration of Independence), a display of first lady gowns, a mock Oval Office and a very impressive collection of historical memorabilia. The exhibits, which are at the Minneapolis Convention Center, have been timed to coincide with the Republican National Convention. It's a great way to share in the convention excitement, catch up on your history and have some fun. There's definitely a lot there of interest to lawyers, plus lots of entertaining stuff for kids and other family members. I'd encourage everybody to attend.

I was there in the capacity of a volunteer, having responded to Mayor R.T. Rybak's call for local citizens to pitch in. Most of the time I spent directing folks onto the Air Force One exhibit and stationed at a prototype of Ronald Reagan's presidential limo. My favorite comment came from a precocious little girl who stuck her head by the open door of the frequently mothballed limo, took a deep whiff and exclaimed, "It smells like my grampy."

In any event, here are two pictures I took during off periods on my iPhone. The first (at left) is of the message informing members of the public that one of the electronic speakers at the presidents' exhibit was experiencing technical difficulties. (Poor Dick Nixon still can't catch a break.) I like the fact that whoever wrote the "pardon" message apparently had a sense humor. (If you can't see the writing, click on the photo to make it bigger.)

The second photo (at right) is of a Lincoln impersonator who circulated around the exhibit hall. Someone said to me that this faux Lincoln was in fact a little taller than the real McCoy, but the hat used was a bit shorter, so it all evened out. I have no idea if this is actually true, but I like the symmetry if it is. In any event, I could not hear what Lincoln was saying to this woman standing in line at the miniature White House. Perhaps he dropped by to tell her to make sure she checks out the Lincoln bedroom. (File that one under great presidential pickup lines.)