Shaw v. Johnson, s. 47053

• Decision Date: 03 December 1976
• Docket Number: 47092,Nos. 47053,s. 47053
• Parties: James E. SHAW, Respondent, v. Wayne A. JOHNSON, Director of Finance and Records, Hennepin County, Minnesota, Respondent, Independent-Republicans of Minnesota, Respondent, Joan Anderson Growe, Secretary of State, State of Minnesota, Appellant.
• Court: Minnesota Supreme Court

Page 921

247 N.W.2d 921

311 Minn. 237

James E. SHAW, Respondent, v. Wayne A. JOHNSON, Director of Finance and Records, Hennepin

County, Minnesota, Respondent,

Independent-Republicans of Minnesota, Respondent,

Joan Anderson Growe, Secretary of State, State of Minnesota,

Appellant.

Nos. 47053, 47092.

Supreme Court of Minnesota.

Dec. 3, 1976.

Warren Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., Stephen F. Befort and Christopher R. Kelley, Sp. Asst. Attys. Gen., St. Paul, for Joan Growe.

Peterson, Engberg & Peterson, Roger A. Peterson, John C. Kuehn and Richard G. Pepin, Jr., Minneapolis, for respondent Shaw.

Gary Flakne, County Atty., David E. Culbert, Asst. County Atty., Minneapolis, for Wayne Johnson.

Eldon J. Spencer, Jr., Minneapolis, for Ind. Republicans of Minn.

Considered and decided by the court without oral argument.

PER CURIAM.

This is an appeal by Joan Anderson Growe, secretary of state, from an order of the district court which held that both the plaintiff, James E. Shaw, and candidates of the defendant Independent-Republicans of Minnesota, may use the term 'independent' as all or a part of the designation they choose on the general election ballot. By order dated October 8, 1976, this court affirmed the order of the District Court, Hennepin County, dated July 23, 1976. In our October 8 order, we stated that this opinion would follow.

Shaw is a candidate for the Minnesota Senate. He has filed for election by means of a nominating petition, pursuant to Minn.St. 202A.28 to 202A.32. As is required by Minn.St. 202A.32, subd. 1, Shaw filed this nominating petition with defendant Wayne A. Johnson, director of finance and records for Hennepin County, who serves as statutory auditor for Hennepin County. At that time, pursuant to Minn.St. 203A.34, Shaw requested to be designated 'independent' on the general election ballot.

This request was denied by Johnson's office, after consultation with Secretary of State Growe. The denial was based upon Opinion Attorney General, No. 672--b--7, Jan. 26, 1976. This opinion in essence states that since the term 'independent' has been adopted as a part of the name of Independent-Republicans of Minnesota, ¹ its use on the ballot in a partisan election by any candidate other than a candidate of that party is precluded. Shaw brought this action seeking a declaration of his right to use the designation 'independent' on the election ballot.

The trial court found that there was no danger of confusion among the electorate resulting from the use by both Shaw and Independent-Republicans of Minnesota of the term 'independent,' and ordered election officials of Hennepin County to place upon the ballot plaintiff's name with the designation 'independent.'

The issue presented is not governed directly by any statutory provision. Many of the arguments presented by the parties, and Opinion Attorney General, No. 672--b--7, are primarily based upon Minn.St. 202A.11, the so-called Party Name Protection Act, ² despite the fact, conceded by all parties, that Shaw is not the candidate of any statutorily defined ³ political party.

We do not believe that the strict prohibition of the statute on candidates of political parties is applicable to nonparty candidates and hold that it should not be applied in the instant case. However, viewing Minn.St. 202A.11, subd. 2, as expressive of a legislative intention to prevent confusion which might be engendered by the use of similar political designations, we will examine situations outside the purview of the statute to ascertain whether or not confusion, or the...