Minnesota Lawyer Blog

Those of you who are following news of judicial elections in other states may be interested to know that the U.S. Supreme Court last Friday accepted certiorari in the case of Caperton v. A.T. Massey Coal Company, which I discussed here. The plaintiffs, who argue that campaign donations to the justices created the appearance of impropriety amounting to a due process violation, are represented by former Solicitor General Theodore Olson. According to the New York Times, Olson said in his pleadings, “The issue raised by massive campaign contributions to judges from litigants and their attorneys go to the very heart of what it means to be given a fair trial.” The defendants argued that “looks bad” is not a test of due process.

A sharp-eyed reader noting our headline that said that this year’s appellate races offered few surprises wrote to remind me about Supreme Court races in other states. In a Mississippi race that shows where John Grisham gets his ideas, three justices running for second, eight-year terms lost: Chief Justice Jim Smith lost to Jim Kitchens, Justice Oliver Diaz Jr. lost to Randy “Bubba” Pierce, and Justice Chuck Easley lost to David Chandler. A fourth, Justice Ann Lamar, who was appointed last year by Gov. Haley Barbour, won her race. Diaz was indicted in 2003 in what he calls a political prosecution in connection with a loan to defray campaign debts, and acquitted. He claimed to have been targeted for defeat by the U.S. Chamber of Commerce. Oddly, the Mississippi Business and Industry Political Education Committee gave Smith a 72 % rating while giving Easley and Diaz 27 and 28 % respectively.The Smith-Kitchens race reportedly cost over $1 million.

In Michigan, Chief Justice Clifford Taylor was defeated by Judge Anne Hathaway, a nominee of the Democratic Party. Reports are Taylor raised over $1.7 million but Hathaway had Bruce Springsteen at a “Vote for Change” concert in which she said her opponent's judicial philosophy is "a death trap, a suicide rap..." An October television ad claimed that Taylor fell asleep during oral argument, which he denied.

In West Virginia, former Chief Justice Elliot Maynard didn’t survive a primary after pictures of him vacationing in Monte Carlo with a business executive who had a pending case came to light. The case, Caperton v. A. T. Massey Coal Company, is awaiting a possible grant of certiorari from the U.S. Supreme Court over whether another West Virginia Supreme Court justice must step aside in the case. The Caperton plaintiffs won a $50 million fraud verdict against Massey but the West Virginia court has twice set aside the verdict by a 3-2 majority. According to the New York Times, Justice Brent D. Benjamin, both times a member of the Caperton majority, won his seat with the help of more than $3 million from the same Massey executive who took the former chief justice to Monte Carlo but has refused to recuse himself from cases involving Massey. The Times says the Caperton case turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required. Two other cases involving West Virginia are pending at the Supreme Court, both of which involve the state’s odd law that denies companies a right to appeal punitive damage awards.)

Some of these justices may have been turned out of office deservedly, but our reader reminds us, brace yourselves, Minnesotans, for 2010 when a majority of the Minnesota Supreme Court will be on the ballot.

We at Minnesota Lawyer were interested in how members of the general public decide whom to cast their ballot for in judicial elections, so we sent intrepid associate editor Barbara Jones -- along with our one-man video crew -- on the road to find out. They stopped off at a polling place in downtown Minneapolis to talk with some voters. As you will find out from this video, judicial election choices can be like sausages, those who love them may not want to see how they are made ...

I spent yesterday (and I mean the whole day -- 5:30 a.m. to 9:00 p.m.) working as a Ramsey County election judge, and it was an eye-opening experience.

The precinct where I worked wasn’t even one of the busiest in town, attracting about 1,100 voters during the 13 hours the polls were open. But there was a long line to start the day, and voters came in steady streams throughout.

The evidence that Minnesota saw near-record voter turnout was confirmed by the hundreds of first-time and newly-registered voters, and the willingness of people to go the extra mile to make sure others got a chance to cast a ballot. On a regular basis, registered voters from the neighborhood -- including folks from the precinct’s halfway houses and homeless shelters -- returned to the polls with friends, roommates and neighbors who wanted to vote, too. (Under Minnesota law, a registered voter can “vouch” for the residency of anyone who lives in the same precinct, even if that person doesn’t have a permanent address.)

Even though no TVs or radios were allowed inside the polling place, the stream of new and young voters gave me a strong hunch about how the presidential race would turn out. That hunch was confirmed when, after closing, the precinct’s chief election judge ran the final tally and found that almost 900 voters (more than 80 percent) of voters in this mostly white, overwhelmingly working-class precinct voted for Barack Obama.

The enthusiasm of the voters even carried over into the judicial elections. Many voters who were advised to examine both sides of the ballot were glad to discover they would have a say in who their judges would be, and a few even brought notes into the voting booth based on research they had done on the judicial candidates.

The front runner for the honor of the most expensive judicial race this year goes to the contest between David Piper and Jane Ranum for an open seat on the Hennepin County District Court. So far, $203,728 has been raised for that race. Most of the money has been raised by Piper, whose $168,760 in contributions includes the $100,000 which he has loaned to his own campaign.

A close second is the race between Gail Chang Bohr and Howard Orenstein for the open Ramsey County seat. So far, a combined $158,730 has been raised by those candidates.

At the statewide level, Minnesota Supreme Court Justices Lorie Gildea and Paul Anderson have done comparatively well individually in attracting contributions, garnering $64,070 and $58,278, respectively. Meanwhile, their opponents, Judge Deborah Hedlund and Tim Tingelstad, have collected only about $28,000 combined.

At the other end of the spectrum is Alan Eugene Link, who has challenged Hennepin County District Court Judge Philip Bush. Link -- who has declined to provide any information about his campaign to Minnesota Lawyer and other media outlets and who has not participated in any public candidate forums -- reports self-financing his $536 campaign. He reportedly spent $300 on his filing fee and $236.76 on "door hangers," which can't have gone far in the state's most populous county. To my knowledge, this stealth candidate has made no public appearances during his entire campaign. Bush has raised $16,977 to defeat the missing Link. (Some have speculated that Link is hoping that voters somehow equate his opponent's name with that of our not-so-popular president. There is, by the way, no relation.)

More information about the candidates' funding is available at the Campaign Finance and Public Disclosure Board website.

Minnesota Lawyer doesn’t offer endorsements of judges, so the comments below are strictly my own as someone who has closely followed these races.

Justice Paul Anderson is the second most senior justice on the high court, and was previously the chief judge of the Minnesota Court of Appeals. He takes a scholarly approach to the law, and is the court’s resident historian. He has spearheaded the court’s public outreach efforts and has become its unofficial “goodwill ambassador.” Tim Tingelstad is a magistrate in the 9^th Judicial District whose campaign emphasizes his “biblical worldview,” but does not make the case that his qualifications are superior to Anderson’s. (Tingelstad has said that he would decide cases on the facts and law rather than on his religious views, although most of his website, www.highesthill.com, seems to be dedicated to the latter.) Tingelstad strikes me as a sincere individual, but has nowhere near the breadth of experience and support that Anderson has. Anderson is the clear choice here.

Justice Lorie Skjerven Gildea vs. Judge Deborah Hedlund

It’s highly unusual for a sitting trial court judge to challenge a sitting Supreme Court justice, which is why this race has generated a lot of interest. Gov. Tim Pawlenty appointed Justice Lorie Skjerven Gildea just about three years ago after she served a brief stint in the District Court. She has experience as a prosecutor and as an attorney in private practice. Her challenger, Deborah Hedlund, has been a Hennepin County District Court judge for 28 years. Hedlund has made as a center point of her campaign the idea of adding someone with extensive experience on the trial court bench on the Supreme Court. (Gildea, who was on the Hennepin bench for a few months, is the only justice on the seven-justice court who served as a trial judge.) Hedlund also stresses her criminal trial experience. Gildea, on the other hand, counters she has worked on the high court for three years and has “done well.” Indeed, the Minnesota Supreme Court has an excellent reputation and is fairly collegial. Gildea’s transition onto the court did not change that. While I think Hedlund makes a good point that a seasoned trial court judge could add something to the court, I don’t think she’s made the case that that person should be her or that she would make a better justice than Gildea, who is already on the court and has garnered the support of more than 115 appellate attorneys and the majority of State Bar members polled. While this is a closer call than the Anderson/ Tingelstad matchup, I think Gildea is the better choice. (I make this conclusion without regard to the recent curious e-mail dustup involving Hedlund since it is unclear what was actually going on there.)

Court of Appeals

Terri Stoneburner vs. Dan Griffith

Terri Stoneburner spent 10 years as a trial court judge before Gov. Jesse Ventura elevated her to the Court of Appeals eight years ago. She was in private practice for 10 years prior to that. I think that this is the perfect background for a seat on the Court of Appeals, which has as its primary job reviewing trial court cases to determine if an error has been made. Her opponent, Dan Griffith, who is running for a judgeship for the third time, is an attorney in private practice in International Falls. He has emphasized his belief in contested judicial elections as his reason for running rather than making the case he would make a better appellate judge than Stoneburner. I think Stoneburner is the clear choice here.

Don't forget to check out Minnesota Lawyer's online Judicial election guide to get information on the judicial races. Click here to visit.

And don't forget to vote tomorrow!

Hennepin County prosecutor Howard Orenstein is running against Children's Law Center of Minnesota executive director Gail Chang Bohr for an open seat on the Ramsey County bench. The following clip is from a debate between the two candidates at Hamline University School of Law on Oct. 29, 2008.



To view the YouTube version, click here.

Children's Law Center of Minnesota executive director Gail Chang Bohr is running against Hennepin County prosecutor Howard Orenstein for an open seat on the Ramsey County bench. The following clip is from a debate between the two candidates at Hamline University School of Law on Oct. 29, 2008.



For the YouTube version, click here.

It's easy to forget sometimes that the conventional wisdom of the legal community is not always the conventional wisdom of the world in general. A case in point: Most in the legal community would acknowledge that appellate lawyers are best situated to know who is (and who is not) a good candidate for the Supreme Court and Court Appeals. Appearing before these courts on a regular basis gives you a pretty good idea of what is required. Veteran court watcher and fixture of the Minnesota appellate bar Chuck Lundberg made that point in a piece he penned for the Star Tribune to help voters at the polls in a quandary about who to vote for.

However, lawyer stereotypes can lead members of the general public to distrust any voting advice given by a lawyer, as Lundberg quickly learned from comments made when the Strib put the article on line. A second Strib opinion piece -- written by a member of the public in response to Lundberg's piece -- takes Lundberg to task for his advice to voters that incumbents are usually a good pick because most of them were vetted by a merit-selection commission prior to appointment.

Lundberg's point that the Minnesota bench overall has an excellent reputation is well-taken. Most of the judicial appointments have been very good. On the other hand, voters can and should educate themselves about particular races by looking at resources such as the Minnesota Lawyer online judicial election guide. That may be the best strategy, short of taking an appellate lawyer with you in the voting booth.

As we enter the home stretch of the judicial elections, a controversy that may influence the 2010 judicial elections is shaping up. U.S. District Court Judge Ann Montgomery heard cross-motions for summary judgment last week in the case Gregory Wersal v. Patrick Sexton, chair of the Minnesota Board of Judicial Standards, et al. Wersal challenges the portions of the code of judicial conduct that prohibit judicial candidates from endorsing other candidates and restrict solicitation of funds.

Wersal sought a preliminary injunction from Montgomery earlier this year that was denied because he did not file for office, his attorney, James Bopp of Indiania, said. Bopp said Montgomery asked many questions at the injunction hearing but very few this time around.

Wersal said last summer he would definitely run for the Supreme Court in 2010. Apparently referring to the court, he said at the time, "By then they better damn well watch themselves.”

Wersal was a co-plaintiff in Republican Party of Minnesota, et al. v. White, et al., in which the U.S. Supreme Court and 8th U.S. Circuit Court of Appeals struck down as free-speech violations most of Minnesota’s restrictions on judicial campaigns. The rules at issue in Wersal’s current lawsuit were not addressed in White -- although the sweeping language of White has left their vitality suspect.

It’s worth remembering that Wersal lost the first rounds in White when U.S. District Court Judge Michael Davis dismissed the case. The 8th Circuit affirmed in an 89-page decision written by Judge John R. Gibson. But the Supreme Court accepted cert, thereby permanently altering Minnesota’s judicial landscape. It’s certain that the summary judgment decision will be just a step on a long path.

The terms of four justices of the Supreme Court will be at stake in 2010—Chief Justice Eric Magnuson and Justices Christopher Dietzen, Helen Meyer and Alan Page. Wersal ran against Page in 1998.

With the judicial elections a week from tomorrow, I thought I'd check in with former Minnesota State Bar Association president David Stowman, who chairs the MSBA committee overseeing judicial campaign conduct. Stowman confirmed my sense that things have been relatively quite and the candidates for the most part have steered away from politicizing their races.

"By and large the candidates are conscientious individuals who want to conduct themselves appropriately," he said. "We've received relatively few complaints, and, in some of those cases, [the candidates] agreed to modify their behavior when we talked to them." (Citing his concern that it would be counterproductive to the committee's efforts, Stowman declined to reveal specifics about the complaints that were received.)

Stowman acknowledged that one idea he had -- getting the opposing candidates to meet over a meal -- didn't work out.

"We were not successful in getting them together in the heat of the election process while they are busy campaigning," Stowman said. However, the committee was able to talk with many of the candidates on the phone to discuss how their races are being conducted, he added.

With eight days to go until voting day, Stowman isn't quite ready to give the all-clear signal yet. "I'm still waiting for the other shoe to drop," he said with a laugh.

After the election, Stowman plans to solicit input on the role of the MSBA candidates' conduct committee and how it might be refined in future elections.

For more information about the judicial candidates, visit the Minnesota Lawyer's online judicial-election guide.

Justice Paul Anderson is the second most senior of the seven Minnesota Supreme Court justices. He has served on the state high court since 1994. Previously, he was chief judge of the Minnesota Court of Appeals, and, prior to that, an attorney in private practice. His challenger in the upcoming election is Tim Tingelstad, a 9th Judicial District magistrate. (Unfortunately, we were unable to arrange a video interview with Tingelstad for this video series.)

A judicial history buff, Anderson brings a lot of institutional knowledge to the job. He is also extremely active in the court's outreach efforts, and has earned the informal title of the court's "goodwill ambassador."



Click here for the YouTube version.

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.

Minnesota Lawyer this week presents its video coverage of the three appellate court races. We start today with the race between Supreme Court Justice Lorie Skjerven Gildea and Hennepin County District Court Judge Deborah Hedlund.

Gildea, who was appointed to the Supreme Court by Gov. Tim Pawlenty in late 2005, served briefly on the Hennepin County District Court. She has been also been a prosecutor in Hennepin County, counsel for the University of Minnesota and an attorney in private practice.

In the interview below, Gildea discusses the reasons she believes voters should retain her on the state Supreme Court.



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.

Last Monday, in a chart accompanying a story on the appellate court races, Minnesota Lawyer reported the amounts of the contributions to the appellate court candidates in the upcoming election. There was an error in the information listed for Court of Appeals Judge Terri Stoneburner, who faces a challenge from International Falls attorney Dan Griffith. The chart erroneously showed that Stoneburner has raised $25,066. As of Oct. 8, Stoneburner's campaign had, in fact, raised only $8,700. The figure reported for Griffith, $2,275 is correct.

So far, Justice Lorie Skjerven Gildea, who has reported contributions of about $35,000, is in the lead for fundraising in the appellate races.

For the final installment in our five-part video series on the Hennepin County District Court races, we present a clip of Judge James Swenson. Swenson, who was appointed to the bench in 1995, faces a challenge from Hennepin County referee Thomas Haeg.

In this clip from the Sept 22 Hennepin County Bar Association's judicial candidates' forum, Swenson discusses some of the challenges facing his court and how he has dealt with them during his time on the bench.



For the other installments in this series, click bellow:
Part I: Judge Philip Bush
Part II: David Piper
Part III: Jane Ranum
Part IV: Thomas Haeg