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Heather Robins; Jill Eleanor Clark; Gregory Wersal v. Mark Ritchie

January 26, 2011

HEATHER ROBINS; JILL ELEANOR CLARK; GREGORY WERSAL, PLAINTIFFS -- APPELLANTS,
v.
MARK RITCHIE, IN HIS OFFICIAL CAPACITY AS MINNESOTA SECRETARY OF STATE (AND/OR HIS SUCCESSOR); TIMOTHY PAWLENTY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF MINNESOTA (AND/OR HIS SUCCESSOR); JOHN DOES 1-300, DEFENDANTS -- APPELLEES.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Bye, Circuit Judge.

Submitted: September 20, 2010

Before BYE, BEAM, and SMITH, Circuit Judges.

Heather Robins, Jill Clark, and Gregory Wersal (hereinafter "Robins") filed a complaint in federal district court challenging the constitutionality of Minnesota Constitution Article VI, Section 8, and Minnesota Statutes §§ 204B.36, subdivision 5 (incumbency designation for judges), and 490.125 (mandatory retirement age for judges). Robins sought a preliminary injunction to enjoin Minnesota's Secretary of State from relying on the challenged state laws and requiring him to hold an election for the seat of Chief Justice of the Minnesota Supreme Court in November of 2010. The district court*fn1 denied the motion and Robins appealed. Without reaching the district court's denial of the preliminary injunction, we remand to the district court to dismiss Robins's challenges to Article VI, Section 8 of the Minnesota Constitution and to the incumbency designation statute, Minnesota Statutes § 204B.36, subdivision 5, for lack of subject matter jurisdiction. We also remand Robins's challenge to the statutorily mandated retirement age for judges to be dismissed, with Judge Beam's separate opinion announcing the judgment of the court on that issue.

I

Robins brought suit in the United States District Court for the District of Minnesota against Minnesota Governor Timothy Pawlenty, who appoints a new Chief Justice in the event of a vacancy, and Minnesota Secretary of State Mark Ritchie, who posts vacant seats for which candidates may file to run and prepares sample ballots. Robins is a resident and eligible voter of Minnesota. Wersal and Clark are each residents of Minnesota who intended to file for candidacy for the seat of Chief Justice of the Minnesota Supreme Court in the November 2010 election.

In their complaint, Heather Robins, Jill Clark, and Gregory Wersal alleged a misuse of resignations and appointments to delay and prevent elections in violation of the Minnesota Constitution's preference for elections and the United States Constitution's right to vote and run for public office. The claims are based on the recent resignation of Chief Justice Eric J. Magnuson and the subsequent appointment of Associate Justice Lorie Skjerven Gildea as the new chief justice. According to the complaint, there has not been an election for the seat of chief justice for ten years.

Chief Justice Kathleen A. Blatz was elected in 2000 to a six-year term and was to run for re-election in 2006. However, in 2005, Chief Justice Blatz announced her resignation from the Minnesota Supreme Court, effective in January 2006. Governor Pawlenty appointed Associate Justice Russell A. Anderson to the chief justice seat. Chief Justice Anderson was to run for re-election in 2008, but resigned before the election. Governor Pawlenty then appointed Eric J. Magnuson as the new chief justice. Chief Justice Magnuson was to run for election in November 2010, but in March 2010 Chief Justice Magnuson announced his resignation effective at the end of June 2010. Governor Pawlenty then appointed Associate Justice Lorie Skjerven Gildea as chief justice.

Robins alleges this series of resignations and appointments is "more than coincidence, and that the Governor has engaged in a systemic overuse of the appointment process . . . to appoint his friends and colleagues . . . at the expense of the public's right to vote for Chief Justice."

Two relevant challenges to the resignation and appointment process were previously brought to the Minnesota Supreme Court. First, Robins and Clark brought a petition in 2008 challenging the incumbency designation provided for in Minnesota Statutes § 204B.36, subdivision 5. In Clark v. Pawlenty ("Clark I"), the Minnesota Supreme Court denied the petition in its entirety, holding in part, "petitioners have not established any violation of their First Amendment rights" as to the incumbency designation. 755 N.W.2d 293, 314 (Minn. 2008). Robins and Clark petitioned for a writ of certiorari, which was denied by the United States Supreme Court. Clark v. Pawlenty, 129 S.Ct. 2056 (2009).

Then, on March 16, 2010, Robins, Clark, and Wersal filed a petition in the Minnesota Supreme Court naming Governor Pawlenty and Secretary of State Ritchie as respondents. In Clark v. Ritchie ("Clark II"), the petitioners sought to bar Governor Pawlenty from appointing anyone to fill the vacancy resulting from Chief Justice Magnuson's resignation and to require Secretary of State Ritchie to open the chief justice seat for election in November of 2010. 787 N.W.2d 142, 144-45 (Minn. 2010). The petitioners asserted there was an excessive use of the appointment process for filling judicial vacancies and claimed the Minnesota Constitution required an election for chief justice in 2010. Id. at 146. The petitioners further asserted Secretary of State Ritchie's failure to accept candidate filings or hold an election for the seat of chief justice violated their rights under the First Amendment of the United States Constitution to run for office and to vote. Id. at 151.

On May 13, 2010, the Minnesota Supreme Court issued an opinion denying the petition. The court declared Minnesota law has no preference or requirement for judges to be elected, noting "'[n]either election nor appointment of judges is preferred over the other-under the constitution each process has its place under different circumstances.'" Id. at 146-47 (quoting Zettler v. Ventura, 649 N.W.2d 846, 850 (Minn. 2002)). The court explained "the Governor is obligated to fill by appointment all judicial vacancies" under the plain language of Article VI, Section 8 of the Minnesota Constitution and therefore held the resignation of Chief Justice Magnuson created a vacancy that Governor Pawlenty was obligated to fill by appointment until the "election of a successor at the next general election more than one year after his or her appointment, that is, in November 2012." Clark II, 787 N.W.2d at 147, 151 (emphasis added). The court concluded "the Secretary of State is not authorized under state law to post the chief justice seat for the November 2010 general election," and the Secretary of State's refusal to hold an election for chief justice in 2010 "does not violate the First Amendment, either with respect to petitioners' rights to vote or the rights of petitioners Clark and Wersal to run for public office" because state law "does not permit an election for chief justice in November 2010." Id. at 151.

On May 17, 2010, following the Minnesota Supreme Court's decision in Clark II, Robins filed a one-count complaint in federal district court. The complaint asserted a violation of 42 U.S.C. § 1983 arguing Minnesota Constitution Article VI, Section 8, Minnesota Statutes § 204B.36, subdivision 5 (incumbency designation), Minnesota Statutes § 490.125 (mandatory retirement age), and the overcreation of judicial vacancies coupled with the overuse of appointments violate the First Amendment right to vote and to run for public office, the right to equal protection in voting, and the Fourteenth Amendment right to vote.

On May 21, 2010, Robins sought a preliminary injunction based on two issues from the complaint: (1) the constitutionality of Article VI, Section 8, of the Minnesota Constitution, and (2) the constitutionality of the incumbency designation statute, Minnesota Statutes ยง 204B.36, subdivision 5. Robins asked the district court to issue a preliminary injunction restraining Secretary of State Ritchie from enforcing Minnesota Constitution Article VI, Section 8, as interpreted by the Minnesota Supreme Court and thereby requiring him to open the chief justice seat for candidacy filing and voting, or, in the alternative, asked for a writ of mandamus requiring the Secretary of State to open filing for the chief justice seat. And, if the injunction was granted on that first issue, Robins sought to ...


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