[Opinion] – In a Gildead Cage?

Hey everybody, here comes another column on Election 2008. But wait! Before your eyes glaze over and you make a desperate lunge for the crossword puzzle, letâÄôs talk for a minute about a race thatâÄôs provided some high drama this election season, including lawsuits, recounts and clever arguments from both sides. ItâÄôs for seat No. 4 on the Minnesota Supreme Court, and if you havenâÄôt been paying attention to this story, let me tell you, itâÄôs a doozy. First, hereâÄôs a little background for those from out-of-state. In Minnesota, our judges are elected. ItâÄôs a matter of state law. Every judge in the state system has to stand for election every six years. Enter Justice Lorie Gildea. SheâÄôs one of the candidates running for seat No. 4 on the Court this fall. Justice Gildea has actually been a member of the Minnesota Supreme Court since 2006, but she wasnâÄôt elected. She was appointed by Gov. Tim Pawlenty to fill a seat vacated by another justice in the middle of his term. Now the appointment itself isnâÄôt a big deal. MinnesotaâÄôs Constitution directs that replacement judges are appointed by the governor when another justice departs in the middle of a term. Most state Supreme Court justices arrive on the court via appointment. The Minnesota Constitution also instructs that there must be an election for the appointed judgeâÄôs seat at the first general election more than one year after the appointment. For Justice Gildea, this is that election. Now let me introduce Jill Clark. SheâÄôs an attorney running against Gildea for the Supreme Court, and she argues that (among other things) Gildea shouldnâÄôt be allowed to run as an incumbent since she was appointed and not elected. For those unfamiliar with Minnesota elections, incumbent candidates are denoted as such on the ballot. Clark argues that this denotation gives Gildea an unfair advantage. So Clark did what any self-respecting lawyer would do in a position she considered unfair. She sued. And so Clark wound up before the Minnesota Supreme Court just more than two weeks before the Sept. 9 primary. Since Gildea presently sits on the Supreme Court, and six of the seven other justices arrived at their positions on the court via governor appointment, it would appear that Clark faced a pretty hostile crowd. But fret not, for here in Minnesota, justice is blind, and every member of the court stepped down for this case. The court was replaced by a stand-in Supreme Court comprised of five retired, appellate and district court judges (this situation, while interesting, is not unheard of). One of the retired justices, Lawrence R. Yetka, had himself been ousted from his seat on the Court back in 1993 as the result of a lawsuit. But more on that later. Anyway, to make a long story short, Clark lost. I canâÄôt rehash the whole opinion here, but I recommend you all go read it on the internet at mncourts.gov. Clark cited various portions of Minnesota constitutional and statutory law to support her argument that Gildea not be allowed on the ballot at all or, alternatively, deny her the incumbent designation. The makeshift court wasnâÄôt having it, as those who voted Sept. 9 know. GildeaâÄôs name was on the ballot, incumbent designation and all. ClarkâÄôs arguments, although ultimately unsuccessful, raise some interesting points. The vast majority of Minnesota Supreme Court justices got their initial seat via gubernatorial appointment. In fact, according to the Minnesota courtsâÄô website, the last time a justice earned his way onto MinnesotaâÄôs highest court via a nonincumbent election was in 1992, and before that it was 1967. And since 1967, 25 justices have been nominated by various governors. In that timeframe, no incumbent has lost a judicial election. It should also be noted that in the 1992 election, when Justice Alan C. Page won his first term on the court, there was no incumbent opposition, thanks to a lawsuit filed by Page himself. Justice PageâÄôs own ascension to the high court is quite a story itself âÄî a real Page-turner, if you will. Clark cited his case, Page v. Carlson, in her oral arguments. IâÄôll oversimplify the holding for the sake of space by suggesting that, if you decide to attempt an end-run around the state constitution in your duties as an executive official, donâÄôt be surprised when youâÄôre stuffed by a hall-of-fame NFL linebacker. But I digress. I havenâÄôt even introduced all the main characters yet. So now I present Hennepin County District Court Judge Deborah Hedlund. Hedlund is also running for GildeaâÄôs seat. Her name was also on the ballot for the Sept. 9 primary, along with Gildea, Clark and F. Richard Gallo. The top two finishers from this field will face off in the November general election. At the primary, Gildea cruised to the next round with 53.45 percent of the vote. But her challenger is âĦ well, we donâÄôt know yet, theyâÄôre still counting votes. ThatâÄôs right, the second-place finish was so close âÄî Hedlund appears to have won by one-half of 1 percent âÄî that state law requires a hand recount of all 419,474 ballots. The recount is taking place as you read this, and according to Minnesota Public Radio, itâÄôs the stateâÄôs first recount since 1962. Secretary of State Mark Ritchie has said that counting should finish by Friday, and results are scheduled to be certified Sunday. Now that youâÄôre aware of the situation, I presume I will not be the only one spending Saturday night on my laptop, hitting refresh on the Secretary of StateâÄôs website. LetâÄôs hope for no hanging chads. And even when the counts are final, the drama wonâÄôt be over. ThereâÄôs still the general election, where Supreme Court justices compete right alongside the likes of McCain and Obama. And you, dear reader, will decide the victor. If you would like some information to help you write the final chapter of this legal thriller, statements from the various judicial candidates in their own words are available at sites such as http://www.minnlawyer.com/elections/2008. Judge wisely. Jake Parsley welcomes comments at [email protected]