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.

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.

Tim Tingelstad, a magistrate in the 9th Judicial District, has filed to run against Minnesota Supreme Court Justice Paul Anderson in the upcoming judicial election. Tinglestad is the second challenger in the race. As we reported earlier, Maplewood attorney Alan Lawrence Nelson has also declared himself a candidate for Anderson's seat.

In cases such as this where there are more than two people running for the same seat, the field will be whittled down to two in a September primary, with only the top two vote getters proceeding to the general election in November.

The Minnesota Supreme Court recently amended a new CLE rule allowing credits for pro bono work. The changes were made in response to criticism that original version of the rule was not inclusive enough.

The CLE rule -- which took effect on July 1 -- allows attorneys to accrue one CLE credit for every six hours of legal representation provided to a pro bono client. Attorneys can accrue a maximum of six such credits per three-year reporting-period under the rule.

As originally worded, the rule sparked some controversy because of its narrow definition of what constituted a Legal Services provider. Only work done for a Legal Services provider was eligible for credit. The rule defined a Legal Services provider as “a legal services organization funded by the Legal Services Corporation.” Several local nonprofits that provide pro bono services -- including the Volunteer Lawyers Network -- were excluded by this language.

The new version (issued the day before the pro bono CLE rule was to take effect) is much broader in its definition of pro bono work eligible for credit. In addition to work for groups funded by the LSC, it includes pro bono efforts overseen by nonprofits that have a primary purpose of providing legal services to the poor, law firms that offer similar programs with a designated supervisor and the Minnesota Judicial Branch for designated projects, such as the Guardian ad Litem Program.

Rumors have been rife in the legal community that Gov. Tim Pawlenty will act speedily in announcing a new chief justice for the Minnesota Supreme Court. Court watchers expect an announcement as to who will replace retiring Chief Justice Russell Anderson as early as this week.

UPDATE (3:58 p.m.): Make that really speedy. The governor has called a press conference for 9:30 a.m. tomorrow morning at which he is expected to announce his choice.

I thought we did pretty well on this blog to give you a heads up that Chief Justice Russell Anderson might step down from the high court three days before his retirement was officially announced. But then I got an e-mail from Burton Randall Hanson over at the Daily Judge blog. Hanson sent me a link to a blog post he made predicting the 2008 retirement in December 2005, right after Anderson's appointment as chief was announced. (Scroll down to "Is MN's new Chief a caretaker Chief?" about a fifth of the way down the page.) Hanson definitely deserves the early bird award here.

Meanwhile, Judith Yates Borger over at MinnPost had her thoughts yesterday on "Who will replace the state's retiring chief justice?" Her list of possibilities included three excellent Court of Appeals judges who would also bring a diverse perspective to the state high court -- Judge Natalie Hudson, Judge Mimi Wright and Chief Judge Ed Toussaint.

Governor Tim Pawlenty is currently looking for a new chief justice for the Minnesota Supreme Court. While I obviously don't know who will be picked yet, I can take a pretty good stab at what that person’s background will include:

-- impeccable conservative credentials;
-- well known to Gov. Pawlenty (a/k/a “a friend of Tim”);
-- with a “strict constructionist” judicial outlook.

With just two woman and one minority on the high court, diversity is likely to be a factor the governor considers, although, as he showed with his last high court pick, not necessarily a decisive one.

One option for Pawlenty would be to elevate an associate justice to the chief’s spot and then to appoint a replacement for the associate justice. (This is what the governor did when he selected then-associate Justice Russell Anderson as chief two years ago.) If Pawlenty goes this route, one of three justices would likely become the new chief – G. Barry Anderson, Lorie Gildea or Christopher Dietzen.

On the other hand, Pawlenty could tap a well-regarded lawyer without prior judicial experience, in which case longtime friend and colleague Eric Magnuson would be a clear favorite.

With this next appointment, the court will officially be a Pawlenty court, with four of the seven justices owing their seats to the governor. The three remaining justices not appointed by Pawlenty are: Paul Anderson (appointed by Arne Carlson), Helen Meyer (appointed by Jesse Ventura) and Justice Alan Page (who was elected to his seat and is the most senior justice on the court).

It used to be like clockwork. Go grab a bite to eat for lunch, come back to the office and find out how your case did on appeal. Both state appellate courts would release their week's opinions at exactly 1:00 p.m. (Tuesdays for the Court of Appeals, Thursdays for the Supreme Court.)

But, as Minnesota Lawyer reports this week, all that recently changed thanks to those ink-stained wretches who make up the Fourth Estate. (Since journalists don't really use ink now, perhaps I should keyboard-clicking wretches.)

Effective Dec. 11, the appellate courts started releasing the week's opinions at 10:00 a.m., barely giving lawyers time for a cup of coffee and a scone before getting the good or bad news about their case. (The release days stayed the same.)

"It was really a courtesy to the press, so they have a little more time during the day to prepare their story," clerk of the appellate courts Fred Grittner told Minnesota Lawyer.

Meanwhile, appellate lawyers are happy to get the results sooner too. "Once you know [your decision] is coming out, the longer you have to wait, the more painful it is," said Minneapolis attorney Bill Hart.

It's good to see the courts being media-friendly. It will be interesting to see if the media returns the favor by using that time to make the reports on decisions more comprehensive and fair.

In two 4-3 decisions issued yesterday, the Minnesota Supreme Court ruled against admitting evidence obtained by police officers executing invalid nighttime warrants.

In both cases, the officers failed to meet the Minn. Stat. sec. 626.14 requirement that they demonstrate special circumstances existed justifying conducting the search at night. (Absent such a demonstration, the law mandates that warrants be served between the hours of 7:00 a.m. and 8:00 p.m.)

In one case, State v. Jackson, police executed the warrant at 9:25 p.m. When they entered, they found the defendant at her kitchen table with her two teenage children. In the second case, State v. Jordan, police executed the warrant at 6:00 a.m. The defendant was not home, but his 20-year-old daughter, her boyfriend and a guest were in the house asleep.

Both defendants in both cases sought to exclude evidence uncovered by police, arguing that the searches violated their statutory and Fourth Amendment rights.

The Supreme Court found that the violations in the two cases were serious and subverted the basic purpose of sec. 626.14.

In order to reach this determination, the court had to clarify exactly what the purpose of the statute was. “[W]e believe it is appropriate to define the interest protected as freedom from intrusion during a period of nighttime repose,” wrote Justice Paul H. Anderson for the Jackson majority.

The dissenting justices argue the violations were technical and did not warrant exclusion of the evidence seized.

More in next Monday's Minnesota Lawyer.

If you read Star Tribune columnist Nick Coleman's column today, you might be under the misimpression that Court of Appeals Judge Christopher Dietzen is some sort of mafioso.

It's well known that Dietzen, who was recently appointed to the state Supreme Court, has conservative credentials and close ties to Gov. Tim Pawlenty, including serving as Pawlenty's legal counsel. In an apparent reference to this, Coleman refers to Dietzen as the governor's political consiglieri. Now that word can technically just mean a counsellor or advisor, but who doesn't think of "The Godfather" when they hear it? In fact, I found the following definition when I googled the word: "An adviser or counselor, especially to a capo or leader of an organized crime syndicate."

As far as I know at least, Dietzen has never delivered a horse's head to anyone's bedside or shot anybody at a toll booth. With decades of legal experience and three years on the Court of Appeals under his belt, Dietzen is well-qualified for the high court post. He is a political conservative (no surprise with a Republican governor doing the picking), but does not have a reputation as a radical as Coleman seems to imply.

The one point Coleman makes that I agree with is that judicial candidates in Minnesota should go through a mandatory merit-selection procedure rather than just be hand picked willy-nilly by the governor. While I believe that Dietzen is a worthy selection, the governor could have made any lawyer friend an appellate judge with the same ease that Caligula once made his favorite horse a Roman senator. Under our current system, the governor has absolute discretion in awarding appellate judgeships to lawyers. (Several governors in the past have chosen to use ad-hoc screening committees to vet appellate appointments, but this process has never been required.)

Both the Minnesota State Bar Association and the Quie Commission include in their proposals for revamping judicial elections in Minnesota a requirement that a merit-selection committee screen all candidates seeking appointments to the bench. Regardless of where we come out on judicial-election reform, I think that is one component of the proposals that ought to be adopted.

Governor Tim Pawlenty will no doubt soon be turning his attention to filling that vacancy on the Minnesota Supreme Court created by Justice Sam Hanson's decision to step down at the end of the year and return to his old firm, Briggs & Morgan. (See story in last week's Minnesota Lawyer, password required.)

The governor -- and whatever committee he chooses to assist him -- will be looking at a variety of factors in choosing a replacement for Hanson. It should obviously be someone who is highly intelligent with a stellar resume and a personalty that will fit well with the rest of the court. No doubt, Pawlenty also wants someone who will not be an activist judge -- whatever that means these days. But what else?

Diversity is probably the biggest other factor that is on the mind of the legal community. With Hanson's departure, the court will be left with one African American justice (who gained his seat through election rather than appointment), two women justices and three justices with the surname of Anderson. There has never been an African American, Native American, Hispanic or Asian candidate appointed to the Minnesota high court -- an odd situation given that there are so many qualified lawyers in each of these groups.

I have no idea who will apply -- or who whatever committee the governor appoints will ultimately recommend -- but I can think of plenty of potential candidates who, not only would add a diverse perspective to the court, but also who are extremely well-qualified. Just to name a few, what about smart-as-a-whip Court of Appeals Judge Mimi Wright or the highly capable and service-minded Hennepin County District Court Judge Tony Leung? What about Bowman and Brooke attorney George Soule, who has done yeoman's work on judicial selection and as an officer at the Minnesota American Indian Bar Association? What about Hennepin County Public Defender Lenny Castro, who was recently a finalist for a seat on the Court of Appeals? And I could go on and on.

The other element to diversity is, of course, the gender composition. Minnesota not long ago was the first in the nation state high court to achieve a majority of women (4/7) -- now we are down to two. There are more well-qualified women candidates in Minnesota than I could ever hope to list here. How about selecting one of them?

I do not think that diversity should be the sole, or even dominant, consideration -- that should be the candidate's qualifications and abilities. However, there are many highly qualified diverse candidates in Minnesota, and a diverse perspective can add much to the court. I hope the governor, who has generally made excellent judicial selections so far, will give give this serious consideration as he mulls whom to put on the high court.