Clark v. Pawlenty, No. A08-1385.

• Decision Date: 05 September 2008
• Docket Number: No. A08-1385.
• Citation: 755 N.W.2d 293
• Parties: Jill CLARK, an individual and candidate for Minnesota Supreme Court Associate Justice, Seat # 4, and Heather Robins, an individual and a registered voter, Petitioners, v. Tim PAWLENTY, in his official capacity as Governor of the State of Minnesota, Mark Ritchie, in his official capacity as Secretary of State of the State of Minnesota, and Fran Windschitl, Rice County Auditor, Respondents.
• Court: Minnesota Supreme Court

755 N.W.2d 293

Jill CLARK, an individual and candidate for Minnesota Supreme Court Associate Justice, Seat # 4, and Heather Robins, an individual and a registered voter, Petitioners, v. Tim PAWLENTY, in his official capacity as Governor of the State of Minnesota, Mark Ritchie, in his official capacity as Secretary of State of the State of Minnesota, and Fran Windschitl, Rice County Auditor, Respondents.

No. A08-1385.

Supreme Court of Minnesota.

September 5, 2008.

Jill Clark, Golden Valley, MN, for petitioners.

Lori Swanson, Attorney General, Kenneth E. Raschke, Jr., Nathan J. Hartshorn, Assistant Attorneys General, St. Paul, MN, for respondents Governor Tim Pawlenty and Secretary of State Mark Ritchie.

G. Paul Beaumaster, Rice County Attorney, Faribault, MN, for respondent Fran Windschitl, Rice County Auditor/Treasurer.

Lewis A. Remele, Jr., Charles E. Lundberg, Paula M. Semrow, Bassford Remele, Minneapolis, MN, for respondent Justice Lorie Skjerven Gildea.

OPINION

PER CURIAM.¹

On August 14, 2008, petitioners Jill Clark and Heather Robins filed a petition pursuant to Minn.Stat. § 204B.44 (2006), seeking an order, applicable to both the primary and general elections, directing that Associate Justice Lorie Skjerven Gildea's name be stricken from the official state ballot or, alternatively, that designation of Justice Gildea as the incumbent be stricken from the ballot. After expedited briefing, the court heard oral argument on August 26, 2008. So as not to impede the orderly administration of the election, the court issued an order on August 26, 2008, dismissing Governor Tim Pawlenty as a party-respondent in the matter and denying the petition, with this opinion to follow.

On December 15, 2005, Governor Pawlenty announced the appointment of Justice Russell A. Anderson, then an associate justice on the Minnesota Supreme Court, as chief justice to fill the vacancy created by the resignation of Chief Justice Kathleen Blatz. The Governor also announced the appointment of Lorie Skjerven Gildea, then a district court judge in Hennepin County, to replace Justice Anderson as associate justice. Chief Justice Anderson and Justice Gildea were sworn in on January 23, 2006.

On July 1, 2008, Justice Gildea filed for election to Associate Justice, Seat # 4, the seat to which she had previously been appointed. The November 4, 2008 election is the next general election occurring more than one year after Justice Gildea's appointment and follows the primary election set for September 9, 2008. On July 15, 2008, petitioner Clark, a licensed Minnesota attorney and Minnesota resident, filed for election to the same seat.² On August 11, 2008, Clark obtained a sample ballot from the Rice County Auditor.³

Clark and Robins filed their ballot-challenge petition on August 14, 2008. The petition named Governor Pawlenty, Secretary of State Ritchie, and Rice County Auditor Windschitl as respondents. On August 15, 2008, the court ordered petitioners to serve a copy of the petition and any supporting documents on all other candidates for Associate Justice, Seat # 4, and allowed petitioners until August 18, 2008, to serve and file any additional materials supporting their petition. Petitioners filed an amended petition on August 18. On August 21, 2008, the court received responses to the petition on behalf of Governor Pawlenty, Secretary of State Ritchie, Rice County Auditor/Treasurer Windschitl, and Justice Gildea. Petitioners filed a reply on August 22, and as noted above, argument was heard on August 26.

Petitioners first claim that Justice Gildea's name should be removed from the official ballot, asserting that a judge appointed by the governor to fill a judicial vacancy is barred from running for election to retain the office. Because Justice Gildea was appointed by the Governor in 2006 to fill the vacancy in Seat # 4 created by the appointment of Justice Anderson as chief justice, petitioners assert that Article VI, § 8, bars her from running for election for Seat # 4.

Alternatively, if Justice Gildea is not removed from the ballot, petitioners contend that the "incumbent" designation required by Minn.Stat. § 204B.36, subd. 5 (2006), should not be printed after Justice Gildea's name on the ballot. Petitioners make several arguments in support of striking the incumbent designation. First, petitioners make two statutory arguments. They assert that the incumbent designation required by section 204B.36, subd. 5, applies only to candidates who were previously elected to the position; that is, a person appointed to the seat is not an incumbent for purposes of section 204B.36, subd. 5. Petitioners also contend that the incumbent designation conveys an advantage to the candidate that is prohibited by Minn.Stat. § 204B.35, subd. 2 (2006).

Second, petitioners claim that the incumbent designation required by statute offends the Minnesota Constitution because it infringes on the voters' right to select judges by election.

Finally, petitioners contend that the incumbent designation, either alone or in combination with the governor's initial appointment to fill a judicial vacancy, violates petitioner Clark's rights as a candidate and petitioner Robins's rights as a voter under the First Amendment to the United States Constitution.

I.

The Governor and the Secretary of State each seek dismissal from the case. We conclude that Governor Pawlenty is neither a proper nor necessary party based on the claims made and the relief sought in the petition, and we therefore dismiss him as a party-respondent. We conclude that the Secretary of State is a proper party to this election dispute.

The only actions of Governor Pawlenty that are alleged in the petition are appointments to fill judicial vacancies. The authority, indeed the obligation, to make such appointments is provided in Article VI, § 8, of the Minnesota Constitution. Although petitioners argue that this appointment authority should be "strictly construed," the petition does not seek to bar the Governor from filling judicial vacancies in the future. Nor could it, because the petition is brought under section 204B.44, which provides a remedial process only for correction of the ballot and directly related election procedures. Moreover, the Governor cannot implement any of the relief that petitioners request: he is not responsible in any manner for preparation of the ballot.

The Secretary of State, in contrast, is the chief election official in the state. Among many other election-related duties, he is responsible for determining and communicating to all 87 county auditors which state and local offices will be on the ballot, Minn.Stat. § 204B.33(a) (2006); for certifying to the county auditors the names of the candidates who will be voted for at the primary election, Minn.Stat. § 204D.06 (2006); and for preparation of the example ballot, which includes the incumbent designation, Minn.Stat. § 204D.09, subd. 1 (2006). Moreover, if a provision of state election law cannot be implemented as a result of a court order, the Secretary of State has the authority and responsibility to "adopt alternative election procedures to permit the administration of any election affected by the order." Minn.Stat. § 204B.47 (2006). Although the Secretary of State correctly points out that he is not directly responsible for the printing and preparation of ballots, when, as here, a ballot challenge under Minn.Stat. § 204B.44 concerns an office for which voting is conducted statewide and for which the Secretary of State has provided the challenged ballot information to all 87 county auditors, we conclude that the Secretary of State is a proper party.

We therefore dismiss Governor Pawlenty as a party-respondent in this matter, but deny the request of Secretary of State Ritchie to be dismissed as a party-respondent.

II.

The Governor and Secretary of State urge the court to deny the petition on grounds of laches. Laches is an equitable doctrine applied to "prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay." Winters v. Kiffmeyer, 650 N.W.2d 167, 169 (Minn.2002). With respect to laches, "`[t]he practical question in each case is whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for.'" Id. at 170 (quoting Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952)).

Our concern with the timing of ballot challenges is not a new one. More than 50 years ago we declined to consider the merits of a ballot challenge because "the petitioner ha[d] not proceeded with diligence and expedition in asserting his claim." Marsh v. Holm, 238 Minn. 25, 28, 55 N.W.2d 302, 304 (1952). We explained:

One who intends to question the form or contents of an official ballot to be used at state elections must realize that serious delays, complications, and inconvenience must follow any action he may take and that, unless a reasonable valid excuse be presented by him indicating why he did not act expeditiously, he should not be permitted to complain. It is important that such persons move expeditiously so ballots can be printed and distributed according to the requirements of the law.

Id. at 28-29, 55 N.W.2d at 304. We noted similarly in Peterson v. Stafford, 490 N.W.2d 418 (Minn.1992), cert. denied, 507 U.S. 1033, 113 S.Ct. 1852, 123 L.Ed.2d 475 (1993):

The very nature of matters implicating election laws and proceedings routinely requires expeditious consideration and disposition by courts facing considerable time constraints imposed by the ballot preparation and distribution process. As a result, we have examined applications for relief not only on their merits, but also from the perspective of whether the applicant acted promptly in initiating proceedings.

Id. at 419 (citing Mattson v. McKenna, 301 Minn. 103, 222 N.W.2d 273 (...