UPDATE: The acting Supreme Court panel issued a brief order late morning Wednesday denying Michelle MacDonald’s petition that she be placed on the ballot against incumbent Justice Anne McKeig. This story has been updated with the order.
The Minnesota Supreme Court went to its bench Tuesday, empaneling a substitute court to hear a case brought by a legal and political thorn-in-the-side of many of the court’s members.
All seven members of the court recused themselves from hearing a challenge brought by Michelle MacDonald, who thinks election officials mistakenly blocked her from running for the court this year. The reason for keeping her off the ballot? Her law license is currently suspended by an action of the Supreme Court, the same people who would normally hear her case.
For that reason, and because MacDonald has run unsuccessfully against several incumbent justices, an appeals court justice and four lower court judges were brought in to hear MacDonald v. Secretary of State. The five are not acting as an appeals court. Their ruling, which needs to come soon to give local elections offices time to prepare general election ballots, will be final.
There were conflicts within conflicts in the Supreme Court’s handling of the MacDonald lawsuit that was heard Tuesday:
- The last four times an incumbent judge was challenged over the last six election cycles, the opponent was Michelle MacDonald.
- Her two most recent election opponents — Justice Paul Thissen and Justice Margaret Chutich — did not take part in deciding her 2021 suspension.
- The July order to bring in a temporary court was signed by six of the seven justices currently serving. The seventh — Justice Anne McKeig — didn’t even take part in the decision not to take part in the case because she is the justice MacDonald wants to run against.
- Even the selection of the five fill-ins was done with potential conflicts in mind: all five were picked because they are in their final terms due to mandatory retirement and won’t face election challenges again.
Related | Substitute Minnesota Supreme Court needed in case involving frequent candidate Michelle MacDonald
After wading through all the history and conflicts and court orders, the facts of the case can appear to be an afterthought.
UPDATE: After this story was posted, the temporary court issued an order denying MacDonald’s petition. “Because MacDonald’s law license in Minnesota is currently suspended, she is not ‘learned in the law’ and thus is not constitutionally qualified to be a justice of the supreme court.” The order is here. It relied on case law that found that suspended lawyers, like disbarred lawyers, should be treated as laypeople and not allowed to run for judge positions.
“This case is controlled by In re Candidacy of Daly … (relying upon authorities treating both suspended and disbarred attorneys as effectively being laypersons in holding that disbarred attorneys were constitutionally ineligible to appear on the ballot for supreme court justice,)” read the order signed by Acting Chief Justice Francis Connolly.
MacDonald’s argument is that because the state constitution says judicial candidates must be “learned in the law,” that is the only criteria that can be applied to candidates. Her attorney, Eric Bond Anunobi, condeeded Tuesday that a decades-old state Supreme Court ruling defined “learned in the law” as being an attorney. He said there is no requirement that such attorneys be in good standing with the bar association and licensed to practice.
The state law he claimed was unconstitutional requires judicial candidates to produce the card that shows they are a member of the bar when they file. MacDonald, he said, went to law school, passed the bar exam and had practiced as an attorney before her suspension. Attorneys who are members of the bar or eligible to be admitted should be considered learned in the law, Anunobi said.
But under questioning from the temporary panel, Anunobi conceded that court precedent holds that someone must be an attorney at law and that some suspensions could be relevant. For example, he said, suspensions for dishonesty or fraud could be considered. That would be a judgment for election officials.
“But how is the secretary of state to distinguish between an unlicensed attorney who is qualified and an unlicensed attorney who is not qualified to be placed on the ballot?” asked Acting Associate Justice Laurie Miller. Anunobi said the elections officials would make the decision based on the facts of each suspension.
Connolly presented Anunobi with this summary of the practical implications of the case: “Why would we say, ‘Well you can’t practice law but you can preside over cases and try cases and decide cases and apply the law even though you can’t practice law?’ It seems to me that would defy common sense. Why would we want someone who can’t practice law to administer law?”
Anunobi said the functions of an attorney and a judge are different. Judges, for example, don’t represent clients.
“It would be dangerous to adopt this wholesale rule that because a lawyer is suspended they cannot be judges,” Anunobi said, suggesting that MacDonald’s suspension is political and not for fraud or dishonesty.
MacDonald’s current suspension results from statements she made to the media during her 2018 campaign that disparaged a judge’s handling of a high-profile case she was involved in. Because the statements represented what the court found to be repeated falsehoods, including statements covered by a previous suspension, the court rejected a recommendation of another year of probation and imposed the indefinite suspension.
“Close supervision on probation has not been enough to prevent MacDonald from repeating her misconduct, so we have no confidence that an additional year of probation would prevent similar misconduct in the future,” the court wrote. “Neither was her 60-day suspension in 2018 sufficient motivation. We are especially troubled by the repeated nature of MacDonald’s misconduct after discipline, MacDonald’s knowledge of the factual falsity of her statements, her refusal to acknowledge the wrongfulness of her conduct, and her lack of remorse.”
MacDonald sat in the gallery after being told she could not sit with her attorney unless she was taking part in the oral arguments. Anunobi had once been a co-plaintiff with MacDonald after being blocked from filing for a lower-court judge race because he hadn’t received his current bar card. He subsequently dropped out as a plaintiff and instead argued the case.
The nature of MacDonald’s current suspension was brought up during the state’s argument for dismissal. Acting Associate Justice Timothy McManus asked Assistant Attorney General Frank Langan if average Minnesotans would wonder about the state Supreme Court using lawyer discipline to keep a potential election rival from running against them.
Langan said MacDonald had run four times previously and that even with her absence from the ballot this year, two of the three justices up for election have opponents.
Langan began his argument by saying that for decades the Supreme Court has defined “learned in the law” as meaning an attorney in good standing with the court and the bar. The state law requiring proof of law license does not exceed that court-interpretation of the constitutional requirement but only implements it and came in response to a court ruling that suggested the state adopt a standard.
Because MacDonald could not produce such proof since she is currently suspended, she can’t file for the office of justice, Langan said.
“The analysis ends there,” he said. “The petitioner offers no authority to overturn or depart from this court’s well-settled interpretation of the phrase ‘learned in the law.’”
Connolly noted that Abraham Lincoln never went to law school. Would that preclude him from running for judge in Minnesota if he were still alive? After Langan agreed that it would, Connolly quipped: “My hunch is that he would get a lot of write-in votes.”
Langan asked for a court decision before Sept. 4 to provide time for ballots to be prepared. Before adjourning, Connolly said the panel was aware of the time constraints.
“We will issue a decision forthwith,” he said. The order came just 24 hours after the hearing ended.
Such full-court recusals aren’t unheard of, but they are rare. One case also involved a petition by a candidate for the Supreme Court who challenged a governor’s decision to extend the term of a sitting justice to allow the justice to serve until they qualified for certain retirement benefits.That candidate — Alan Page — won his case and was allowed to file for the office in 1992, an election that he won. The other case mentioned in the Monday order is Clark v. Pawlenty, a 2008 case that sought to keep recently appointed Justice Lorie Gildea from appearing on the ballot.
Peter Callaghan
Peter Callaghan covers state government for MinnPost. Follow him on Twitter @CallaghanPeter or email him at pcallaghan@minnpost.com.
