Judges reject attempt to remove Justice Gildea from the ballot

The panel also denied attorney Jill Clark's attempt to remove the "incumbent" label next to Gildea's name on the ballot.

Gov. Pawlenty appointed Gildea to the Minnesota Supreme Court three years ago. She replaced Russell Anderson, whom Pawlenty appointed to serve as chief justice.

The panel ruled within a few hours after hearing arguments this morning. It ruled so quickly it gave no explanation for its decision, but promised to provide one at a later date.

That is a practice the courts have followed in the past when speed is of the essence, because it's an issue that concerns an upcoming election. In this case, the primary is only two weeks away. The state Constitution says the people elect Minnesota's judges. But when a seat opens before a judge's term ends -- for example, because a judge retired or died -- the governor appoints a replacement.

Attorney Jill Clark maintains that those replacements are only temporary, and the person appointed must step aside at the end of the term to allow for an open election. She says Gildea should be disqualified to run for election because she was appointed to fill a vacancy.

During arguments today, Clark told the special panel the governor's appointments have an unfair advantage by being designated the incumbent on the ballot.

"The people gave the power to the governor and the governor shall not abuse it," said Clark. "We stand at a crossroads."

Because the case concerns one of their own justices, all six remaining Minnesota Supreme Court recused themselves from the case to avoid the perception of bias.

The chief named a five-judge panel, and then several of them also recused themselves.

The final panel included former state Supreme Court Justices James Gilbert and Lawrence Yetka; Court of Appeals Judges Bruce Willis and Gordon Shumaker, and Hennepin County Judge Marilyn Rosenbaum.

During the hearing, former justice Yetka noted that the state Supreme Court has upheld Minnesota's system of choosing judges and labelling the incumbent on the ballot in previous challenges.

For example, the incumbent designation on ballots has been challenged twice before -- and survived both challenges. Yetka said overruling those cases could throw the legal system into chaos.

"If we change the rules now, as you're asking us to do, what is the status of all of these judges that have been appointed by governors? Are they illegally holding office?" Yetka asked.

"We would argue no," replied Clark, "because, as in most places where the law reaches a crossroads and we turn and go in a different direction, it's not retroactive."

Hennepin County Judge Marilyn Rosenbaum asked Clark about how the issue of the incumbent designation affects the voter.

"Why can't that be debated among the candidates and brought to the attention of the voter, as either an advantage or a disadvantage to the incumbent?"

"I think you've just pointed out why it's a financial advantage to the incumbent to have it printed on the ballot," responded Clark. "As Justice Scalia said in one of the opinions we quoted, 'The ballot is the last thing the voter sees before they vote.' The challenger would have to spend a lot of money to get out to the electorate, educate them about the whole incumbency issue."

Attorney Jill Clark has not returned a phone call for a comment on the ruling. Justice Gildea's campaign sent out an e-mail that said the campaign would respond within the next three days.

Justice Gildea faces two other opponents in the election in addition to Clark -- public defender Richard Gallo and Hennepin County Judge Deborah Hedlund, who's served as a judge for 28 years.

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