Minnesota Lawyer Blog

There's an interesting article in the PiPress today involving the judicial race between Minnesota Supreme Court Justice Lorie Skjerven Gildea and her challenger, Hennepin County District Court Judge Deborah Hedlund. According to the press report, the owner of a sign-making company sent Hedlund an e-mail with the subject line, "Can Muslims Be Good Americans?" The e-mail includes false claims that Barack Obama is a Muslim and that he won't salute the flag or put his hand on his heart during the national anthem. At some point the e-mail, which I have not seen, apparently goes on to talk about campaign signs.

Hedlund starts her response to the sender as follows: "We speak the same language. And I still need to let voters know they have a choice to 'Seek Justice, Vote For Experience' for the Minnesota Supreme Court." Hedlund went on to discuss the details of the campaigns signs before inadvertantly hitting the "reply to all" button. Somebody forwarded a copy of the exchange to the PiPress.

Hedlund told the PiPress that she was ignoring the first part of the e-mail and that she went right to the sign discussion. The "speaking the same language" comment referred strictly to the sign discussion, she says.

Given the context and the remarks that follow afterward, I think her explanation is possible, maybe even plausible. However, Hedlund then digs herself into another hole. Stressing how busy she has been with her campaign and judicial duties, she responds to the PiPress as follows when asked whether she thought Obama was a Muslim:

"I have no idea what he is. My level of information about the presidential candidates would not fill a thimble."

Hmmm. Coming from a candidate for a high public office, I find that statement disturbing. I mean the presidential elections are fairly important, aren't they? Can you really be an effective Supreme Court justice with a thimble-full of knowledge about the incoming president? Don't we have a civic duty to educate ourselves on the elections? In short, the response strikes me as ill-advised.

Perhaps we can chalk it all up to a case of foot-in-mouth disease (just ask Michele Bachmann). But it certainly doesn't help to have an embarrassing episode like this late in the campaign. Plus Gildea and Hedlund were both scheduled to go before the PiPress editorial board today seeking the paper's endorsement. I wonder how that went?

Hennepin County District Court Judge Deborah Hedlund's statement on her Facebook page that her opponent, Justice Lorie Skjerven Gildea, has canceled debate appearances with her six times is itself debatable, according to Gildea's campaign.

As we blogged before, Hedlund has an entry on her Facebook page asserting that Gildea is "trying to get [her] opponent to show up for a debate. [Gildea] has canceled six times now."

Gildea's campaign chair, Minneapolis attorney Sue Holden, contested Hedlund's characterization of the facts. While acknowledging Gildea was unable to participate in a League of Women Voters' debate due to scheduling conflicts, Holden said Hedlund's statement that Gildea has "canceled" numerous other appearance is incorrect.

Contacted by Minnesota Lawyer, Hedlund explained that the league's debate was rescheduled twice to accommodate Gildea, ultimately to no avail. Hedlund also said she and Gildea were slated to go before the Pioneer Press editorial board earlier this month, but Gildea had another scheduling conflict. (The two are now scheduled to go before the paper's editorial board tomorrow.) Hedlund also said a radio appearance on Minnesota Public Radio had to be rescheduled twice. (Currently the appearance is scheduled for next week.) Hedlund also pointed out that Gildea declined to appear with her on two Ramsey County cable access shows.

For her part, Gildea reported that she is extremely busy with the combination of her judicial duties and campaigning statewide during her off time. The justice said she has to pick and choose her appearances, and frequently runs into conflicts. Moreover, she noted that two of the allegedly "canceled" joint appearances -- the Pioneer Press editorial board and MPR -- are still happening, they have just been rescheduled. (Gildea and Hedlund are slated to go before the Pioneer Press tomorrow; they are scheduled to appear on MPR next week.)

Additionally, Gildea and Hedlund have a joint appearance tonight. Both have RSVP'd to be among the judicial candidates who will address attendees at the 8th District Bar Association at its meeting at Dangerfield's in Shakopee. (Eighth District Bar President Colleen Goggins King told me that the meeting will likely have double the usual number of attendees. The function room being used holds about 70 people, and a capacity crowd is expected.)

Hedlund is still hoping for a debate with Gildea (none of the scheduled joint appearances will be in debate format ). Hedlund said she is willing to appear any time and any place of Gildea's choosing.

While Gildea said she is fine with the joint appearances and even a candidates' forum, she takes issue with the idea of a "debate" used in the context of a judicial campaign. Debating "hot-button issues" is for legislative races, not judicial ones, she said.

As we continue with our video election coverage of the state appellate court races, we present Hennepin County District Court Judge Deborah Hedlund, who is challenging Judge Lorie Skjerven Gildea for her seat on the Minnesota Supreme Court. Hedlund has spent the last 28 years on the trial court bench. Prior to being a judge, Hedlund worked in the Minnetonka City Attorney's Office and as an attorney in private practice.

In the clip below, Hedlund discussed why she believes voters should pick her for the Supreme Court seat currently occupied by Gildea. (Video of Gildea appears in the post below.)



Click here for the YouTube version.

A lot has been written about the use of social-networking sites by lawyers. Now it has even permeated into the arena of judicial elections.

Both Minnesota Supreme Court Justice Lorie Skjerven Gildea (right) and her opponent in the upcoming election, Hennepin County District Court Judge Deborah Hedlund (left), have entries on the Facebook networking site for their campaigns. In fact, Hedlund has two.

One Hedlund Facebook entry-- entitled, "Deborah Hedlund for Supreme Court" -- boasts 12 members, and includes some biographical information and a photo. The second Hedlund Facebook entry, which also has a photo, has a prominent message at the top stating: "Deborah Hedlund is trying to get my opponent to show up for a debate. She has canceled six times now."

Hedlund also has put a series of campaign videos on YouTube.

Meanwhile, 53 supporters have publicly stated that they are backing Gildea on her Facebook page, which includes a "fan photo" of one supporter wearing a Gildea T-shirt while eating something or other on a stick at the State Fair. A couple of statements of support came from folks with the last name Skjerven, including on from a Josh Skjerven, who exclaimed, "im with her." In addition to the standard headshot, the Facebook entry for Gildea's campaign also includes pictures of Gildea being hugged by the University of Minnesota Mascot (Goldy Gopher), riding on a horse in western garb and marching in a parade in Thief River Falls.

While campaigns run in the virtual world are all well and good, I would like to see a real-world debate between Gildea and Hedlund. They have one of the more engaging races, and I think it might generate some public interest in judicial elections.

Golden Valley Jill Clark in an open letter to Minnesota Lawyer has congratulated Hennepin County District Court Judge Deborah Hedlund on her primary victory and appears to have thrown her support to Hedlund by commenting, “Think it doesn’t matter whether the district bench is represented on the appellate courts? Think again.” She has also challenged Supreme Court Justice Lorie Gildea to voluntarily remove the designation “incumbent” from the ballot. Although Clark lost that argument before the Supreme Court, Clark says, “Just because she [Gildea] can, doesn’t mean she should….”

Minnesota Statute 204B.36, subd. 5 addresses the incumbency designation and says “the word ‘incumbent’ shall be printed after that judge's name as a candidate.” It is silent about a candidate’s ability to opt out.

Minneapolis attorney and judicial candidate Jill Clark has lost her last-ditch bid for federal relief in her effort to remove the name of her opponent, Justice Lorie Skjerven Gildea, from the primary ballot, or, in the alternative, to prevent Gildea from being identified an an incumbent.

A special panel appointed for the purpose of hearing Clark's state Supreme Court petition had denied the contentious candidate's request for relief hours after arguments in the case. Clark then sought relief from U.S. Supreme Court Justice Samuel Alito, the circuit justice for the 8th U.S. Circuit Court of Appeals, asking him to prevent the "unconstitutional text" from the ballot. (Clark had argued, among other things, that identifying the incumbent as such on the ballot violates the state Constitution.)

On Sept. 5, without further comment, Alito denied Clark's application for an injunction.

Two other candidates -- Hennepin County District Court Judge Deborah Hedlund and Hennepin County assistant public defender Richard Gallo -- are also challenging Gildea in tomorrow's primary. The top two vote-getters will earn a place on the November ballot.

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.

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.

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.

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.

On the way to work this morning, we spotted a lawn sign advertising a candidate for the Minnesota Supreme Court. Glancing at the sign as we drove by, the first and last name on it looked familiar, but they were separated by what appeared to be a jumble of consonants.

It was only later that we realized the sign was advertising sitting justice Lorie Gildea -- that is, Lorie Skjerven Gildea. We're so used to referring to her by her married name only that we momentarily forgot her admirable Scandinavian roots.

We know Justice Gildea would never stoop to this, but it reminded us of the mini-flap a few years ago when, during her campaign for State Auditor, the candidate heretofore known as Pat Awada suddenly became Pat Anderson Awada. As political pandering goes, it's pretty mild stuff. But that's how we do things in de Gopher Staten.

We pointed out in an earlier post that Minneapolis attorney Jill Clark -- one of three attorneys challenging incumbent Justice Lorie Gildea for seat #4 on the Minnesota Supreme Court -- has filed an action with the state high court seeking to get Gildea disqualified from the race or at least prevent the word incumbent from appearing next to her name on the ballot.

The Minnesota Supreme Court issued an order last Friday giving Clark until 1 p.m. today to serve a copy of her petition and any supporting materials on all the candidates for seat #4, which includes Gildea, public defender Rick Gallo and Hennepin County District Court Judge Deborah Hedlund.

The respondents in Gildea's action -- Gov. Tim Pawlenty, Secretary of State Mark Ritchie and Rice County Auditor Fran Windschitl -- and any of the candidates for the seat who want to have until 4:30 p.m. Thursday to respond. Clark has until 4:30 p.m. the following day to file any reply.

The reason for the expedited timeline is the proximity of the primary, which is just three weeks from tomorrow. One of the things the court has asked for from the respondents is the final date by which the court must reach a decision in order for the ballot to be modified.

The high court still has not publicly announced a decision about what format the hearing on the merits will take and exactly who the decision-makers will be. The order issued Friday states: "Any decisions about additional recusals and/or appointment of acting justices to participate in this case will be made in advance of any consideration of the merits."