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.

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.