Petition for Writ of Certiorari — Michelle MacDonald, Petitioner v. Minnesota Office of Lawyers Professional Responsibility

Supreme Court briefDec 13, 2023

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Text

No.

In the

Supreme Court

of the United States

______________

In re Petition for

Reinstatement of Michelle MacDonald, a

Minnesota Attorney, Registration No. 0182370

Michelle MacDonald,

Petitioner,

vs.

Minnesota Office of Lawyers’ Professional

Responsibility,

Respondent.

______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MINNESOTA

______________

PETITION FOR WRIT OF CERTIORARI

______________

Michelle MacDonald

Counsel of Record

OFFICES OF MICHELLE MacDONALD

1069 South Robert Street

West St. Paul, MN 55118

(651) 222-4400

Michelle@MacDonaldLawFirm.com

Attorney for Petitioner

2023 - Bachman Legal Printing n (612) 339-9518

QUESTIONS PRESENTED

Speech by attorneys critical of the judiciary is

an essential component of our American system of

government. This Court has not addressed the

restraint on free speech which is inherent in

disciplining a lawyer for comments criticizing a judge,

and that is why this case presents an issue of first

impression regarding the First Amendment, Free

Speech and the discipline of attorneys for statements

concerning the qualifications or integrity of a judge.

Across the country, for decades, in scores of cases, both

state and federal courts have discipled attorneys for

making disparaging remarks about the judiciary, and

have almost universally rejected the constitutional

standard established by the Supreme Court in New

York Times v. Sullivan, 376 U.S. 254 (1964) and

Garrison v. Louisiana, 379 U.S. 64 (1964)

for

punishing speech regarding government officials.

Attorneys are generally prohibited from, and severely

punished for impugning judicial integrity, even though

the American Bar Association expressly adopted the

constitutional subjective standard established in

Sullivan and Garrison in its Model Rule 8.2 to only

prohibit attorneys from making “a statement that the

lawyer knows to be false or with reckless disregard as

to its truth or falsity concerning the qualifications or

integrity of a judge”1.

The checking power of attorney speech is not the

antithesis of preserving judicial integrity---checking

government power is the primary method for

preserving government integrity.

See Rules of Professional Conduct R. 8.2 (a), Maintaining the

Integrity of the Profession, Judicial & Legal Officials. The Model

Rule is identical to Minnesota Rule of Professional Conduct R.

8.2 (a) Judicial & Legal Officials.

The questions presented are:

1. Whether a free speech right to impugn judicial

integrity must be recognized for attorneys in

order to reclaim their First Amendment Rights

in invoking and avoiding government power in

the protection of client life, liberty and

property?

2. Whether the disciplinary proceedings for

attorneys can constitutionally abrogate First

Amendment Rights when rules are used to

punish speech that impugns the integrity of the

judiciary without requiring a showing of

knowledge or reckless disregard to truth or

falsity using the constitutional and subjective

standard?

3. Whether attorney Michelle MacDonald, a

candidate for the Minnesota Supreme Court

and critic of the judiciary, may immediately

appeal under 28 USC § 1291, to reverse the

Minnesota Supreme Court’s Judgment due to

its refusal to adhere to her First

and

Fourteenth Amendment rights by deciding to

“indefinitely” suspend her from the practice of

law, and then

by refusing to reinstate

MacDonald without their “requisite” show of

remorse” ” or “change in conduct and state of

mind”, disregarding her participation in a

restorative justice prayer circle, facilitated by

Family Innocence, with

Judge [David

Knutson]?2

See In re Petition for Reinstatement of Michelle MacDonald,

A21-1636, Appendix 3a, at pp. 7a-10a

iii

PARTIES TO THE PROCEEDINGS

The parties in this action are Attorney Michelle

Lowney MacDonald and the Minnesota Office of

Lawyers Professional Responsibility, Director Susan

Humiston.

TABLE OF CONTENTS

Page

QUESTION(S) PRESENTED...................................... i

TABLE OF AUTHORITIES....................................... iv

OPINIONS BELOW.....................................................1

JURISDICTION............................................................2

RELEVANT PROVISIONS INVOLVED ....................3

STATEMENT ...............................................................5

REASONS FOR GRANTING THE PETITION........ 20

II.

III.

THE FEDERAL QUESTION PRESENTED

IS EXCEEDLY IMPORTANT IN ORDER

FOR LAWYERS RECLAIM THEIR FIRST

AMENDMENT RIGHTS …………………..20

FREE SPEECH BY ATTORNEYS IS

NECESSARY TO CHECK JUDICIAL

POWER AND INFORM THE PUBLIC…. 33

THIS COURT MUST PLACE IN CHECK

THE DIMINISHING AVAILABILTY, IF

NOT THE EVISERATION, OF FREE

SPEECH BY ATTORNEYS THAT IS CORE

POLITICAL SPEECH…………………….. 35

CONCLUSION........................................................... 39

APPENDIX

Judgment denying MacDonald’s Petition for

Reinstatement, September 15, 2023 .................... 1a

Order denying MacDonald’s Petition for

Rehearing, September 8, 2023 ............................ 2a

Opinion, In re Petition for Reinstatement of Michelle

MacDonald, A21-1636, Supreme Court of

Minnesota, July 26, 2023 ..................................... 3a

Opinion, In re Petition for Disciplinary Action against

Michelle MacDonald, A20-0473, Supreme Court of

Minnesota, June 30, 2021, Rehearing denied August

12, 2021 ................................................................ 13a

Transcript, WCCO Radio Interview with Candidate

Michelle MacDonald, October 3, 2018 ............... 42a

TABLE OF AUTHORITIES

CASES:

New York Times v. Sullivan, 376 US 254

(1964)……………………………………………..passim

Garrison v. Louisiana, 379 US 64 (1964)…..…passim

In re Petition for Disciplinary action against Michelle

MacDonald, 962 N.W. 2d 451 (Minn. 2021)…passim

NAACP v. Button, 371 US 415 (1963)……………….23

St. Amant v. Thompson, 390 U.S. 727, 731

(1968)……………………………………………………31

Republican Party of Minnesota v. White, 536 U.S.

765, 768 (2002)……………………………………37, 38

In re Disciplinary Action Against Graham, 453

N.W.2d 313, 315, n.3 (Minn. 1990)………..25, 26, 31

CONSTITUTIONAL PROVISIONS

U.S. Const. I; accord. Minn. Const. art. I, §3………3

U.S. Const. XIV; accord. Minn. Const. art. I, §7…..3

STATUTES

18 U.S.C. § 242…………………………………………...7

28 U.S.C. § 1254………………………………………….2

28 U.S.C. § 1257(a)………………………………………2

28 U.S.C. § 1291………………………………………….3

RULES:

ABA Model Rule of Professional Conduct (MRPC) 8.2

(a)…………………………………………………….4, 28

Minnesota Rule of Professional Conduct, 8.2 (a)

Judicial and Legal Officials…………………...passim

Minnesota Code of Judicial Canon 5(a)(3)(d)(I)…….37

OTHER AUTHORITIES:

Margaret Tarkington, Voice of Justice: Reclaiming the

First Amendment Rights of Lawyers, Cambridge

University Press, Margaret Tarkington 2018..passim

The Truth Be Damned: The First Amendment,

Attorney Speech, and Judicial Reputation,

Georgetown Law Journal, Vol. 97, p. 1567, 2009…20

A Free Speech Right to Impugn Judicial Integrity

in Court Proceedings, Boston College Law Review,

Volume 51, Issue 2, Article 2, 2010……………….20

Fredrick Schauer, The Speech of Law and Law of

Speech, 49 Ark L. Rev. 687 (1997)…………………22

Cass R. Sunstein, Free Speech Now, 59 U. Chi. L.

Rev. 255, 305 (1992)………………………………....37

PETITION FOR WRIT OF CERTIORARI

Petitioner, Michelle MacDonald, respectfully

petitions for a writ of certiorari, on behalf of herself

and the over 1.3 million licensed attorneys in the

United States, to review the judgment of the

Minnesota Supreme Court, In re Petition for

Reinstatement of Michelle MacDonald, A21-1636

(Minn. July 26, 2023), denying her Petition for

reinstatement to the practice of law. A. p 3a . The

Petition was necessitated by the June 30, 2021

Opinion of the Minnesota Supreme Court, In re

Petition for Disciplinary action against Michelle

MacDonald, 962 N.W. 2d 451 (Minn. 2021) where the

court indefinitely suspended MacDonald for

impugning the integrity of a judge, while campaigning

for judicial office in 2018. A. p. 13a.

The full transcript of Candidate MacDonald’s

interview WCCO radio on October 3, 2018 is found at

A. p. 42a, and can be heard on the following link:

https://www.youtube.com/watch?v=Pu3q_pRkPxg

OPINIONS BELOW,

ORDERS, AND JUDGMENTS

The Judgement denying MacDonald’s petition

for reinstatement, September 15, 2023, is attached as

Appendix A, p.1a

The Order denying MacDonald’s Petition for

Rehearing, September 8, 2023, is attached as

Appendix A, p. 2a

The July 26, 2023 Opinion of the Minnesota

Supreme Court, In re Petition for Reinstatement of

Michelle MacDonald, A21-1636 (Minn. July 26, 2023),

published, is attached as Appendix A, p. 3a

The June 30, 2021 Opinion of the Minnesota

Supreme Court, case no. A20-0473, In re Petition for

Disciplinary action against Michelle Lowney

MacDonald, 962 N.W. 2d 451 (Minn. 2021) is

published, attached as Appendix A, p 13a

OTHER DOCUMENTS TO UNDERSTAND THE

PETITION

The transcript of the Interview with Supreme

Court Candidate Michelle MacDonald, Interview by

Blois Olson, WCCO Radio Midday, October 3, 2018, for

which she was suspended indefinitely from the

practice of law, and refused reinstatement is attached

as Appendix A, p 42 a.

Listen to Michelle MacDonald’s interview at the

following link.

https://www.youtube.com/watch?v=Pu3q_pRkPxg

Watch Michelle MacDonald’s oral argument

before the Minnesota Supreme Court, August 4, 2023

at the following link.

https://www.mncourts.gov/SupremeCourt/OralArgum

entWebcasts/ArgumentDetail.aspx?vid=1608

JURISDICTION

This Court has jurisdiction under 28 U.S.C. §

1254(1) for writ of certiorari in a civil case after

rendition of a judgment or decree of a court of appeals.

A judgment of the Minnesota Supreme Court was

entered on September 15, 2023.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

The jurisdiction of this Court is invoked under

28 U.S.C. § 1291 to reverse the final decision of the

Minnesota Supreme Court.

CONSTITUTIONAL PROVISIONS AND

REGULATIONS INVOLVED

AMENDMENT I

Congress shall make no law respecting an

establishment of religion, or prohibiting, the free

exercise thereof; or abridging the freedom of speech, or

of the press, or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances. U.S. Const. I; accord. Minn. Const. art.

I, §3.

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof

are citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States, nor shall

any state deprive any person of life, liberty or property

without due process of law, nor deny to any person

within its jurisdiction the equal protection of the laws.

U.S. Const. XIV; accord. Minn. Const. art. I, §7.

ABA Model Rule of Professional Conduct

(MRPC) 8.2 (a) Maintaining the Integrity of the

Profession, Judicial & Legal Officials:

A lawyer shall not make a statement that the

lawyer knows to be false or with reckless

disregard as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicatory

officer or public legal officer, or of a candidate for

election or appointment to judicial or legal office.

Minnesota Rule of Professional Conduct, 8.2 (a)

Judicial and Legal Officials

A lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard

as to its truth or falsity concerning the

qualifications or integrity of a judge, adjudicatory

officer, or public legal officer, or of a candidate for

election or appointment to judicial or legal office.

STATEMENT OF THE CASE

Petitioner Michelle MacDonald was admitted

to practice law in Minnesota on September 11, 1987.

This case originated from a complaint by Susan

Humiston, Director of the Minnesota Office of Lawyer

Professional Responsibility (“OLPR”), after it was

reported to her that Michelle MacDonald, an attorney

and candidate for the Minnesota Supreme Court, was

interviewed on WCCO radio live on October 3, 2018

relating to the November 2018 election.

Candidate MacDonald’s Radio Interview

while Campaigning for Justice

In 2018, MacDonald also sought election to the

Minnesota Supreme Court.

The

petition for

disciplinary

action

arose

from

MacDonald’s

statements during a radio interview on WCCO radio

regarding her statewide candidacy for the Minnesota

Supreme court. See full transcript, attached as

Appendix at A. p. 42a.

MacDonald appeared as a candidate for

Associate Justice of the Minnesota Supreme Court,

having been nominated by the Secretary of State. She

had run for the position four years earlier when

endorsed by the Republican Party, securing 47% of the

popular vote.

At the onset of the program, MacDonald told the

interviewer that she was speaking out “because courts

need reform”. She explained “[C]ourt orders are

damaging people and families…[T]here’s a severe

failure to follow the rule of law, to follow our

constitution and uphold it and, quite frankly, our civil

rights are being violated by courts all over the state”

A. p. 42a.

Court Trial Presided Over by Judge

Knutson with MacDonald in Handcuffs,

mentioned on Interview (WCCO)

The WCCO interview quickly centered on

MacDonald’s involvement in the Sandra GrazziniRucki litigation, including the custody trial, which she

had handled “while under arrest, with no mother, no

pen, no paper, no materials.” A p. 44a.

The interviewer asked MacDonald if a case

involving Sandra Grazzini-Rucki, a former client of

MacDonald’s was “one of the cases that you are

referring to of civil rights being violated” MacDonald

replied that it was. A. p.43a.

MacDonald asserted that the judge in the

Sandra Grazzini-Rucki case violated the rights of both

parents when he ordered that they “have no contact

with their children whatsoever” A. p.43a.

In her opinion, as a judicial candidate,

MacDonald told radio host Olson that Ms. GrazziniRucki’s rights had been violated by the District Court.

As MacDonald explained, Ms. Grazzini-Rucki had

been ordered to leave her home within two hours of the

issuance of the Court’s Order “or else she would be

arrested.” A. p 43a. Judge Knutson’s Order of

September 7, 2012, offered and accepted as

MacDonald Exh. 6, required Ms. Grazzini-Rucki to

leave “ her home, and her children” that same day, “at

or before 12:00 p.m.”.

Candidate MacDonald said Judge Violated

Parental Rights in Interview (WCCO).

She [MacDonald] further stated “[T]he judge did

that in September of 2012 without any hearing,

without any process, and in two hours ordered her, she

was already divorced, to leave her home, leave her

children there… and ordered her not to return or else

she would be arrested. “ A. 42 a - 43 a. MacDonald

opined that the process reflected in the September 7th

Order was unfair to Ms. Grazzini-Rucki.

By using the phrase “without any process” to

describe the proceedings, she testified that she was

referring to her client’s right to be personally noticed,

to be personally heard, for the public to have access to

the hearing, and compliance with all of the standard

deadlines required in family court pleadings. The

telephone conference referenced in the September 7th

Order did not satisfy procedural or substantive due

process, in her opinion as a candidate.

Later in the WCCO interview, Ms. MacDonald

opined that a deprivation of civil rights occurred when

both Grazzini-Rucki parents were denied access to the

children. A. p. 43a. Ms. MacDonald said she was

referring to a deprivation of civil rights. 18 U.S.C. 242.

Candidate MacDonald Asserted AttorneyClient Privilege during Interview (WCCO).

The interviewer brought up the disappearance

of SANDRA GRAZINNI-RUCKI’s two daughters

during the custody litigation and SANDRA

GRAZZINI-RUCKI’s conviction arising from that

disappearance. The interviewer asked MacDonald

when she had learned that the girls were missing and

what SANDRA GRAZZINI-RUCKI had told her.

MacDonald stated that anything SANDRA

GRAZZINI-RUCKI may have told her was protected

by attorney-client privilege and that, in any event, she

never believed that what SANDRA GRAZZINIRUCKI did was a crime.

MacDonald continued, "[T]he crime was with

the court when the judge did an order that neither

parent could contact their kids. That's when the

deprivation happened." A. p. 47a.

Candidate MacDonald said Courts are

Damaging Families during Interview (WCCO).

Finally, at the end of the interview, MacDonald

was asked whether there was anything she wanted

voters to know before the election. She replied:

"I'm running for Minnesota Supreme Court because

time and time again as one attorney representing

thousands of people across the state I've witnessed an

unprecedented display of courts abusing their

discretion and authority, damaging people and

families.... [SANDRA GRAZZINI-RUCKI] is a, a

example of that." A. p. 48 a. Her exact words were:

“Well, basically, for the last 30 years I've stood up

to judges on behalf of individuals and families so

that people could learn the basic recognition of

their civil and constitutional rights in our society.

Rights once recognized as sacrosanct to everybody

and I'm running for Minnesota Supreme Court

because time and time again as one attorney

representing thousands of people across the state,

I've witnessed an unprecedented display of courts

abusing their discretion and authority, damaging

people and families.” A 42a.

OLPR Investigates MacDonald’s Appearance

on WCCO Radio Show

The OLPR subpoenaed the radio station , and

then sent a Notice of Investigation to MacDonald on

October 29, 2018, by authority of Susan Humiston,

when no one complained and independent of any

client, judge or public complaint.

It was not until March 25, 2020, after Ms.

MacDonald announced she was running again for

Minnesota Supreme Court for the election to be held

November 2020, that the Director of the OLPR filed

the Petition for Disciplinary Action with the

Minnesota Supreme Court.

MacDonald has a Hearing Before a Referee

who Rejects First Amendment.

After a hearing, on October 20, 2020, Referee E.

Anne McKinsey, determined MacDonald’s speech was

not protected by the First Amendment, and

recommended discipline of

a 1 year probation

supervised by a family law lawyer. The Referee found

that words used by Ms. MacDonald, a candidate for

judicial office, violated Minn. R. Prof. Conduct 8.2 (a)

and 8.4 (d), which reads:

A lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard as

to its truth or falsity concerning the qualifications or

integrity of a judge, adjudicatory officer, or public legal

officer, or of a candidate for election or appointment to

judicial or legal office 8.2 (a) MRPC; and

“… it is professional misconduct for a lawyer to:

engage in conduct that is prejudicial to the

administration of justice. 8.4 (d) MRPC.

MacDonald is Indefinitely Suspended For

the her Speech on the WCCO Radio Interview

MacDonald appealed the decision of the Referee

that she violated the Rule to the Minnesota Supreme

Court based on First Amendment grounds including

the recommendation of

the Referee for 1 year

probation under the supervision of another attorney,

A. p. 27 a.

On June 30, 2021, the Supreme Court rejected

the First Amendment challenge. The Supreme Court

further

disregarded

the

Referee’s

discipline

recommendations of 1 year probation, and instead

suspended MacDonald indefinitely, with no right to

Petition for reinstatement for 4 months, enhancing

MacDonald’s discipline due to her for lack of remorse.

A. p. 13 a. The court’s stated harm to the public and

to the legal profession that she “here the harm is

multiplied because MacDonald’s statements were

aired on a radio interview and were heard by countless

listeners” warranting more sever discipline. A. p. 30 a.

MacDonald’s “lengthy experience “ and failure to

recognize the wrongfulness of he action or her

expressions of remorse” were treated as an

aggravating factor by the Minnesota Supreme Court to

increase the punishment recommendation to

suspension of 4 months with no right to reinstate until

after 4 months. A. p.31a -32a.

MacDonald seeks Reinstatement to the

Practice of Law

After

months,

MacDonald

sought

reinstatement to the practice of law. Petitioner’s

Petition for reinstatement was filed on December 9,

2021. The matter was assigned to a panel of the

Lawyers Professional Responsibility Board (“Panel”),

and a hearing was conducted August 29-31, 2022.

Judge Knutson’s Testimony Supported that

MacDonald had the Requisite Remorse

At the hearings, Judge Knutson testified to a

restorative justice circle facilitated by Family

Innocence with Ms. MacDonald as “an opportunity for

reconciliation” and he thought it was “great” T. p. 415.

Judge David Knutson testified he was happy to pray

with them”. He called it an “opportunity for the two of

us [Ms. MacDonald and himself] to be together and

“forgive one another” T. p. 416.

He testified that he “certainly forgives Ms.

MacDonald” and doesn’t hold “any ill will against her.”

T. p. 416. He explained events from 2013 and how the

Sandra Grazzini-Rucki’s case “got out of control” T. p.

421-423 Judge Knutson acknowledged he and Ms.

MacDonald have restored friendly relations. T. 426.

Panel Adopts Director’s Proposed Findings

Verbatim Recommending No Reinstatement

At the conclusion of the hearing, the panel

requested proposed Findings of Fact, Conclusions of

Law and Recommendation from the parties. The panel

adopted and signed the Director’s proposed Findings

and recommendation verbatim ---- that MacDonald not

be reinstated to the practice of law --- as their written

decision on October 14, 2022.

The OLPR argued that Petitioner has not

demonstrated the requisite “remorse” and moral

change, and recommended that Petitioner not be

reinstated to the practice of law. MacDonald’s legal

intelligence, intellectual capacity, legal skills, and her

reputation for honesty, diligence, reliability and her

good character were not in question.

MacDonald Appeals the Panel’s

Recommendation Denying Reinstatement

MacDonald appealed the decision to the

Minnesota Supreme Court. Again, MacDonald’s legal

intelligence, intellectual capacity, legal skills, and her

reputation for honesty, diligence, reliability and her

good character were not in question.

The only question before the Minnesota

Supreme Court was whether the panel clearly erred in

finding that Ms. MacDonald failed to prove the

requisite remorse and moral change for reinstatement.

Her oral argument is on this link, August 4, 2023:

https://www.mncourts.gov/SupremeCourt/OralArgum

entWebcasts/ArgumentDetail.aspx?vid=1608

The Minnesota Supreme Court Denies

MacDonald’s Reinstatement

In a July 26, 2023, the Supreme Court adopted

the OLPR and panel’s recommendations to denied

MacDonald’s reinstatement in its Opinion. A. p. 3a.

The Minnesota Supreme Court ruled that MacDonald

had not undergone the requisite remorse, or change in

“state of mind”:

The Minnesota Supreme Court stated “Here, the

panel made numerous determinations in evaluating

MacDonald's alleged remorse and acceptance of

responsibility for her misconduct, her change in

conduct and state of mind, and her renewed

commitment to the ethical practice of law. Although

MacDonald testified that she was remorseful and sorry

for her misconduct, the panel ultimately found that

MacDonald failed to demonstrate the requisite

remorse. The panel determined that MacDonald … was

unable to show-through her own words or through the

testimony of others-any recognition of the harm she

caused by her misconduct. “ A. p.8a.

MacDonald’s Legal Intelligence is Not in

Question

Again,

MacDonald’s

legal

intelligence,

intellectual capacity, legal skills, and her reputation

for honesty, diligence, reliability and her good

character were not in question. MacDonald filed for a

rehearing, which was summarily denied on September

8, 2023. A. p. 2a. Judgment was entered on September

15, 2023. A. p.1a.

This appeal follows.

Michelle MacDonald’s Background and

Experience

Since 1987, Michelle MacDonald is an attorney

in private practice in areas including civil rights,

constitutional issues, family law, child custody,

support, property, child protection, adoption, juvenile,

wills, trust & probate, traffic & criminal defense,

business, real estate, injury, appeals, dispute

resolution, restorative services and more. She was a

Adjunct Judge in Minneapolis, Hennepin county, in

conciliation court for 15 years; and has been an

Adjunct referee in family and civil court (1992- 2011).

Since becoming a mediator in 1997, she has brought

countless cases to resolution.

In 2011, MacDonald founded Family Innocence,

a nonprofit dedicated to keeping families out of the

court: resolving conflicts and injustices peacefully

after a realization that litigating families in court

should be eliminated. She has developed and taught

restorative justice circle courses, including a 46 hour

Restorative Justice Circle Mediation Training,

certified by the Alternative Dispute Resolution,

Supreme Court, that qualifies for 42 Continuing Legal

Education credits for attorneys. MacDonald recently

produced Enjoy the Ride: Restorative Justice Circle

Mediation Training; the movie series, a 6 season edufilm designed to certify participants in restorative

justice in order to keep families of court by use of

restorative

practices

and

peacemaking.

www.Familycourt.com

Michelle MacDonald’s Background – Continued

Michelle MacDonald owns MacDonald Law

Firm, LLC since June, 2004, in West St. Paul,

Minnesota. MacDonald’s background includes:

•

35 years of experience as an attorney in private

practice assisting thousands of people with legal

challenges before hundreds of state and

appellate court Judges.

•

Since joining the Rule 114 ADR Neutral roster

in 1997, Petitioner has maintained a

mediation/dispute resolution division of the law

firm, bringing cases to resolution.

•

22 years of experience serving as an Adjunct

Referee in Family Court and a Conciliation

(Small Claims) Court Judge, deciding

hundreds of small claims court civil matters,

receiving a Years of Service Award. Rule 114

Qualified Neutral since 1996.

Ø Judge, Conciliation/Small Claims Court,

Hennepin County (1999 to 2014)

Ø Adjunct Referee/Arbitrator, family and

civil court (1992-2011)

•

Lead counsel on over Sixty (60) appellate

decisions,

researching

and

writing

memorandums and briefs, which include

amicus (“friend of the court”) briefs for the

Minnesota Supreme Court, appearances before

the Appellate Court and Supreme Court, and

Petitions to the U.S. Supreme Court.

Michelle MacDonald’s Background – Continued

•

Leadership activities include Family Innocence,

a nonprofit dedicated to keeping families out of

court, resolving conflicts and injustices

peacefully,

Founder/Volunteer

President/

Mediator/Restorative Justice Circle Facilitator.

•

Candidate, statewide for Minnesota Supreme

Court: 40.61% or 1,016,245 million votes for

Minnesota Supreme Court in 2020;

•

Author/Editor of The World’s Last Custody

Trial (2016) by Michelle MacDonald and

Michael Volpe; Bullied to Death: Chris

Mackney’s Kafkaesque Divorce by Michael

Volpe (2015); The Long Version (2017) by

Fletcher Long.

MacDonald’s charitable endeavors, community work,

and other projects:

•

Family Innocence, a nonprofit dedicated to

keeping families out of court, founder, volunteer

president/board member 2011 – present

•

Cooperative Private Divorce Project, formerly

Divorce without courts. Regular meetings upon

inception, 2013.

Our group of developed

proposed legislation Cooperative Private

Divorce Bill, HF 1348, which creates an

administrative pathway to divorce that skips

the court adversarial system, additional

hearings in 2018-2019.

Michelle MacDonald’s Background – Continued

•

Family Law Reform/ Child Custody/Parenting

Time Dialogue Group. Regular meetings upon

inception, 2013.

The dialogue group is

comprised of stakeholders who, despite having

different philosophies, were able to reach

compromise and consensus agreements on

numerous legislative proposals in 2014 and

2015.

•

Member, Minnesota State Bar Association --Family Law, Alternative Dispute Resolution,

Children and the Law sections; MSBA

Professionalism Committee (Past Chair); MSBA

Mock Trial Program, Minnesota State Bar

Association, active participation, 2005-present;

Hennepin County and Dakota County Bar

Associations.

•

Active member, national committee, National

Association for Community & Restorative

Justice (NACRJ), 2019 “Elevating Justice”

Conference;

and Restorative Practices

International, 2018 International Conference

on Restorative Practices

•

Recognized Minnesota Pro Bono Lawyer, MSBA

North Star Lawyers Program, 2013 to 2021

•

Amdahl Inn of Court, 2012 to 2021

•

Christian Legal Society, 2019 to present

Michelle MacDonald’s Background – Continued

•

Northstar Law and Policy Forum, 2018 to

present

•

Juris Divas, social group of women lawyers,

judges, legal professionals, who raise money for

various causes, since inception, 2005 to present

•

Rosemount Police Department’s Citizen’s Police

Academy, 2010

•

Rosemount/Eagan

1998-2007

•

Council on International Education Exchange,

exchange student program Active involvement

in hosting high school exchange students from

Brazil, Russia, Germany, Romania for the

duration of the school year. Organized other

host families and events. 1998-2007.

Hockey

Associations

Michelle MacDonald’s Background – Continued

MacDonald described the teaching she has done,

continuing legal education, or other professional

education programs to include that she developed and

presented numerous Family Innocence advocacy,

restorative circle and mediation trainings, and that

the Family Innocence organization has been listed on

the Supreme Court ADR Rule 114 roster for neutrals,

and

frequent

Sponsor;

Planning

Committee/Presenter, 2019 National Association of

Community & Restorative Justice Conference:

“Elevating Justice: Widening the Circle, ” Denver,

Colorado; Planning Committee/Exhibitor, 2018

International Conference on Restorative Practices,

Metropolitan State University, St. Paul, MN, 2018;

Presenter, 2018 Whistleblower Summit, Washington,

DC; numerous other presentations on Family Law

Reform including Divorce Corp conference and Pro se

America events, Washington, D.C. (2014 - 2018);

Presented at the National Association of Relationships

and Marriage Education (NARME), Restorative

Justice & Family Circles, Fresno, Texas. (2014, 2015);

Conducted continuing legal education seminars on

behalf of the Minnesota State Bar, Professionalism

Committee and Amdahl Inn of Court for ethics/bias

credits to attorneys at the State Bar Convention,

Collaborative Law, and continuing legal education on

behalf of Family Innocence presenting restorative

justice circles; Seminars to individuals and

organizations on Estate and Tax Planning – wills,

trusts and related documents, including probate court

avoidance and revocable living trusts.

Petitioner has been in compliance with all

Continuing Legal Education requirements since 1986.

REASONS FOR GRANTING THE WRIT

I. THE FEDERAL QUESTION PRESENTED IS

EXCEEDLY IMPORTANT IN ORDER FOR

LAWYERS RECLAIM THEIR FIRST

AMENDMENT RIGHTS

The Minnesota Supreme Court, a court of last

resort, has decided an important question in a way

that diminishes, and even eviscerates the availability

of the First Amendment’s protective shield for lawyers

in the regulatory and disciplinary contexts when

discussing a judge or judicial system, or running for

judicial office.

Law Professor, Margaret Tarkington, has made

restoring free speech of attorneys her career’s work.

Professor Tarkington’s book, Voice of Justice:

reclaiming the First Amendment Rights of Lawyers,

and related research are critical resources for lawyers

and judges to understand the relationship between

First Amendment rights of lawyers, and the integrity

of the Justice system, and will be reference throughout

this Petition.3

Margaret Tarkington, Voice of Justice: Reclaiming the First

Amendment Rights of Lawyers, Cambridge University Press,

Margaret Tarkington 2018 (hereinafter “Voice of Justice”)

The Truth Be Damned: The First Amendment, Attorney Speech,

and Judicial Reputation, Margaret Tarkington, Georgetown Law

Journal, Vol. 97, p. 1567, 2009 (hereinafter “Truth”)

A Free Speech Right to Impugn Judicial Integrity in Court

Proceedings, Margaret Tarkington, Boston College Law Review,

Volume 51, Issue 2, Article 2, 2010.

Attorneys are Severely Punished for

Impugning Judicial integrity

In Minnesota, and across the country, attorneys

have been prohibited from and severely punished for

impugning judicial integrity. In scores of cases, both

state and federal courts have disciplined attorneys for

making disparaging remarks about the judiciary. The

punishment imposed for impugning judicial

reputation has been severe, with suspension from the

practice of law being typical.4 In at least one state,

suspension is mandatory.5 Attorneys have been

punished regardless of whether they were engaged in

a representative capacity when making the

statements and regardless of the forum in which the

statements were made.

In disciplining attorneys for impugning the

integrity of judges, courts have almost universally

rejected the constitutional standard established by the

Supreme Court in New York Times v. Sullivan, 376

U.S. 254 (1964) and Garrison v. Louisiana, 379 U.S. 64

(1964) for punishing speech regarding government

officials, which involves a subjective analysis, even

though the American Bar Association expressly

Voice of Justice, at p. 151-52 See e.g. In re Mire, 197 So.3d 656

(La. 2016 (one year and a day suspension); Stilley v. Sup Ct.

Comm on Prof’l Conduct 370 Ark 294 (2007) (six month

suspension) In re Pyle, 283 Kan 807, 156 P 3d 1231 (2007 (3 month

suspension); In re Ogden, 10 NW 3d 499, 502 (2014)(30 day

suspension); U.S. Dist. Ct. for E.D. of Wash v. Sandlin, 12 F 3d

861 (9th Cir. 1993) (six month suspension). In at least one state,

suspension is mandatory.

5 Voice of Justice, p. 152. See Office of Disciplinary Counsel v.

Gardner, 793 N.E. 2d 425, 423 (Ohio 2003) (“unfounded attacks

against the integrity of the judiciary require and actual

suspension from the practice of law”)

adopted the rulings in the Model Rule of Conduct 8.2

(1), Maintaining the Integrity of the Profession,

Judicial & Legal Officials which reads:

A lawyer shall not make a statement that the lawyer

knows to be false or with reckless disregard as to its

truth or falsity concerning the qualifications or

integrity of a judge, adjudicatory officer or public legal

officer, or of a candidate for election or appointment to

judicial or legal office. MRPC 8.2 (1)

The rule is identical Minnesota Rule of

Professional Conduct, 8.2 (a) Judicial and Legal

Officials which reads:

A lawyer shall not make a statement that

the lawyer knows to be false or with reckless

disregard as to its truth or falsity concerning

the qualifications or integrity of a judge,

adjudicatory officer, or public legal officer, or of

a candidate for election or appointment to

judicial or legal office. MRPC 8.2 (a)

Attorneys Being Sanctioned for Speech is An

Epidemic

There are endless examples of lawyer speech,

such that one writer noted with reference to attorneys

that “speech is all we [attorneys] have”.6 Speech is the

means that attorneys have to fulfill their role in the

justice system to provide access to justice by invoking

or avoiding government power in the protection of

client life, liberty and property. Lawyer speech and

association needs protection as directly tied to the

protection of individual life, liberty and property

protected against state and federal deprivation by the

Fredrick Schauer, The Speech of Law and Law of Speech, 49

Ark L. Rev. 687 (1997).

Fifth and Fourteenth Amendments.7

Tarkington states that the United States

Supreme Court has not taken up this topic head on

since NAACP v. Button, 371 US 415 (1963), which

reversed the Virginia Supreme Court, holding that

Virginia’s statute, as interpreted to prohibit the

NAACP’s attorney activities, violated the First

Amendment rights of both the attorneys and their

clients “to petition for redress of grievances” as well as

the regulated attorneys’ rights to engage in “political

expression and association” Id at 430-431.8

Examples of Attorneys Sanctioned for

Speech about the Judiciary

The statements by attorneys subject to sanction

have been as mild as accusing the judiciary of being

result-oriented or politically motivated.9 At the other

end of the spectrum are accusations of widespread

judicial corruption and conspiracy.10 Rarely do

attorneys resort to crude language or expletives.11

Voice of Justice, p. 26

Voice of Justice, p. 19, 26. The Button Court emphasized that

the racial setting was “irrelevant to the ground of our decision”

and that the First Amendment protections recognized by the

Court would apply equally in other circumstances. Id at 445-45

Idaho State Bar v. Topp, 925 P2d 1113, 1115 (Idaho 1996); see

also In re Reed, 716 N.E.2d at 427; In re Westfall, 808 S.W.2d 829,

831 (Mo. 1991); In re Raggio, 487 P.2d 499, 500 (Nev. 1971) (per

curiam).

10 In Committee on Legal Ethics of the West Virginia State Bar

v. Farber, 408 S.E.2d 274, 284 (W. Va. 1991), the attorney accused

a judge of being part of a secret Masonic plot to cover up the arson

of a local establishment.

11 But see Grievance Adm'r v. Fieger, 719 N.W.2d 123, 129

(Mich. 2006) (making crude remarks on radio show about judges

Michelle MacDonald’s statements on WCCO

radio live, while running for judicial office , are set

forth on Appendix A, p. 42a to 48a.

The Forum of the Attorneys’ Speech Makes

No Difference as to the Standard and

Punishment

The forum in which the speech is made by the

attorney makes no difference in terms of the standard

applied or punishment imposed. Attorneys are

punished for allegations in briefs and filings with

courts,12 statements to the press,13 letters to the

after verdict for client was reversed on appeal), cert. denied, 549

U.S. 1205 (2007);

In re Abbott, 925 A.2d 482, 483 (Del. 2007) (per curiam); In re

Wilkins, 777 N.E.2d 714, 715-16 (Ind. 2002) (per curiam),

modified, 782 N.E.2d 985, 987 (Ind. 2003); Office of Disciplinary

Counsel v. Gardner, 793 N.E.2d 425, 427 (Ohio 2003) (per

curiam); Peters v. Pine Meadow Ranch Home Ass'n, 151 P.3d 962,

967-68 (Utah 2007).

Attorneys have been punished for statements about the

judiciary in briefs to the court even when the suit is filed against

judges, and the question at issue is whether an exception to

judicial immunity exists. See Ramirez v. State Bar of Cal., 619

P.2d 399, 406, 414 (Cal. 1980) (per curiam).

13 Topp, 925 P.2d at 1115 (statements to press that implied

judge's decision was politically motivated); In re Reed, 716 N.E.2d

at 427 (statements in interview with press); In re Atanga, 636

N.E.2d 1253. 1256 (Ind. 1994) (per curiam) (statements in

interview for ACLU local newsletter); Ky. Bar Ass'n v. Heleringer,

602 S.W.2d 165, 166 (Ky. 1980) (per curiam) (statement to press

criticizing judge for holding restraining order hearing ex parte);

Ky. Bar Ass'n v. Nall, 599 S.W.2d 899, 899 (Ky. 1980) (per curiam)

(statements in radio interview); Fieger, 719 N.W.2d 123

(statements on radio show); In re Westfall, 808 S.W.2d at 831

(statements to press criticizing appellate decision that had been

released); In re Holtzman, 577 N.E.2d 30, 40-41 (N.Y. 1991) (per

curiam) (letter sent to press criticizing judge's treatment of sexual

assault victim); In re Raggio, 487 P.2d at 500 (statements made

judiciary,14 communications with an authority to

complain about a judge,15 pamphlets or campaign

literature,16 comments posted on blogs,17 emails to

in television interview criticizing decision of Nevada Supreme

Court to have death penalty case reheard); In re Lacey, 283

N.W.2d 250, 251 (S.D. 1979) (statements to press criticizing state

courts' handling of the case after appellate decision received);

Ramsey v. Bd. of Prof'l Responsibility of the Supreme Court of

Tenn., 771 S.W.2d 116, 120-21 (Tenn. 1989) (statements to the

press complaining about a judge and then the disciplinary

process).

14 In re Evans, 801 F.2d 703, 703-04 (4th Cir. 1986) (letter sent

to magistrate after case was on appeal and no longer before the

magistrate or the district court); In re Guy, 756 A.2d 875, 877-78

(Del. 2000) (letter sent to judge); Fla. Bar v. Ray, 797 So. 2d 556,

557 (Fla. 2001) (per curiam) (three letters sent to chief

immigration judge complaining about another immigration

judge); In re Arnold, 56 P.3d 259, 263 (Kan. 2002) (per curiam)

(disqualified attorney sent letter to judge).

15 U.S. Dist. Court for the E. Dist. of Wash. v. Sandlin, 12 F.3d

861, 863-64 (9th Cir. 1993) (statements made to FBI and

appropriate authorities at U.S. Attorney's office regarding judge's

editing of transcripts); Ray, 797 So. 2d at 560 (letter sent to chief

immigration judge complaining about another immigration

judge, which Ray and amici argued was “an accepted manner in

which to seek redress when an attorney is having difficulties with

an immigration judge”); In re Disciplinary Action Against

Graham, 453 N.W.2d 313, 315, n.3 (Minn. 1990) (per curiam)

(statements made in letter to U.S. Attorney, in judicial

misconduct complaint, and in affidavit in support of motion to

recuse, although court indicates that the charges were also

released to the public).

16 See, e.g., In re Glenn, 130 N.W.2d 672, 674-75 (Iowa 1964)

(leaflet circulated in community); In re Charges of Unprofessional

Conduct Involving File No. 17139, 720 N.W.2d 807, 810 (Minn.

2006) (statement by judicial candidate's campaign issued about

incumbent judge).

17 See, e.g., Baldas, supra note 25 (reporting pending

proceedings in various states regarding discipline for comments

posted by lawyers on blogs, including a Florida attorney who is

case participants.18 and even correspondence with

friends, family, and clients.19

Attorneys have been punished when the

statements made could not have prejudiced or affected

a pending proceeding20 and when the statements are

being disciplined for describing a judge on a blog as an “‘evil,

unfair witch’ with an ‘ugly condescending attitude”’).

18 In re Ogden, 10 N.E. 3d,499,502 ( (Ind. 2014) ( email sent to

opposing counsel and case participants explaining why attorney

had sought a change in Judge )

19 See, e.g., In re Pyle, 156 P.3d 1231, 1233-36 (Kan. 2007) (per

curiam) (letter sent to family, friends, and clients); In re Shay,

117 P. 442, 443-44 (Cal. 1911) (letter sent to client). Courts still

rely on Shay as authority. See, e.g., Ramirez v. State Bar of Cal.,

619 P.2d 399, 411 (Cal. 1980).

20 See, e.g., In re Glenn, 130 N.W.2d at 674-75 (pamphlet after

cases decided with no appeal pending); In re Pyle, 156 P.3d 1231

(explanatory letter regarding earlier discipline sent to family,

friends, and clients). There are several cases where statements

are made to the press after an appellate decision has been handed

down. See, e.g. Grievance Adm'r v. Fieger, 719 N.W.2d 123, 129

(Mich. 2006), cert. denied, 549 U.S. 1205 (2007); In re Westfall,

808 S.W.2d 829, 831 (Mo. 1991); In re Raggio, 487 P.2d 499, 500

(Nev. 1971) (per curiam); In re Lacey, 283 N.W.2d 250, 251 (S.D.

1979); see also In re Evans, 801 F.2d at 704-05, 708 (attorney

disbarred from United States District Court after sending letter

accusing magistrate of incompetence and pro-Jewish bias, where

attorney waited to send letter until after district court had

adopted magistrate's ruling and Fourth Circuit had rejected

summary reversal, although full disposition at the Fourth Circuit

was still pending). Some courts have implicitly recognized a right

of an attorney to criticize the judiciary after a case is no longer

pending. See In re Cobb, 838 N.E.2d 1197, 1210 (Mass. 2005)

(holding that the state has the power “to regulate the speech of

an attorney representing clients in pending cases,” suggesting it

does not once a case is no longer pending); In re Graham, 453

N.W.2d at 321 (stating that the First Amendment protects the

ability to “criticize rulings of the court once litigation was

complete or to criticize judicial conduct or even integrity”

(emphasis added)).

made by attorneys who are not engaged in a

representative capacity before the criticized court.21

There are certainly others.22

Professor Tarkington’s articles excludes cases in

which the speech was made verbally in a courtroom

during a court proceeding or in which the speech was

made at a time or in a manner that could potentially

influence a jury trial. 23

In order to preserve the First Amendment

rights of attorneys, this Court should grant certiorari

to clarify the due process requirements that must be

met before attorneys can be punished for complaints

that are critical of the judiciary.

Standing Comm. on Discipline for the U.S. Dist. Court for

the Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1437, 1440 (9th

Cir. 1995) (initially suspended for one year for comment sent to

Prentice Hall for publication in the Almanac of the Federal

Judiciary suspension reversed by Ninth Circuit, but Ninth

Circuit still rejected applicability of Sullivan standard); Idaho

State Bar v. Topp, 925 P.2d 1113, 1115 (Idaho 1996); In re Pyle,

156 P.3d at 1233-34, 1248; Ky. Bar Ass'n v. Heleringer, 602

S.W.2d 165, 166 (Ky. 1980) (per curiam).

22 See Lanre O. Amu, U.S. Supreme Court No. 14-689;2014 WL

6967828 (three year suspension for letters to judges where judges

did not complain). Tarkington’s book does not

reference

MacDonald’s endeavors. See In re MacDonald, 906 N.W. 2d 238,

240, 241-43 (Minn. 2018,) where in January 2018, the Minnesota

Supreme Court had suspended MacDonald for 60 days for

allegedly making false statements about the integrity of a judge

with reckless disregard for the truth. She was reinstated

automatically after the 60 days.

See Truth, at 1572-1573

Disciplinary Authorities and Courts

Disregard the Constitutional Standard Found

in Sullivan, adopted in Garrison, and adopted

by the ABA Rule

In New York Times Co. v. Sullivan, 376 US 254

(1964), this court unanimously endorsed history’s

verdict on the Sedition Act of 1798 --- that “the

restraint it imposed upon criticism of government and

public officials was inconsistent with the First

Amendment.” 376 US at 276. Sullivan affords a

defendant sued for defamation by a public official

whom he criticizes the same kind of protection that the

law provides to law enforcement by the doctrine of

qualified immunity. The text of the unanimous opinion

in Sullivan works to treat attorney criticism of the

judge as privileged. See 376 U.S. at 261-262.

Attorneys are Disciplined with No Showing of

“Reckless Disregard” of the Truth

Ms. MacDonald and countless other attorney

are subject to discipline for statement about a judge

or the judiciary without a showing that they knew

their statements to be false or had acted with “reckless

disregard” of truth or falsity, as that term is defined in

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),

and its progeny.

In Garrison v. Louisiana, 379 US 64 (1964), the

Supreme Court overturned the conviction of a district

attorney for criminal defamation after holding a

press conference where he attributed a large backlog

of pending criminal cases to the inefficiency, laziness,

excessive vacations of particular judges, and mused

about possible “racketeer influences of our eight

vacation-minded judges.” 379 US at 66. Recalling

the evils of seditious libel in England, and of the

Seditions Act of the United States, the Court held

that “ only those false statements made with a high

degree of awareness of their probable falsity

demanded by New York Times may be the subject of

civil or criminal sanctions. 379 US at 74.

In Garrison, the U.S. Supreme Court found “no

difficulty in bringing the appellant's statement within

the purview of criticism of the official conduct of public

officials, entitled to the benefit of the New York Times

rule,” for “[t]he accusation concerned the judges'

conduct of the business of the Criminal District Court.”

379 US at 76.

The American Bar Association Expressly

Adopted the Sullivan Standard

After this court’s decision in Garrison v.

Louisiana, 379 US 64,74-75 (1964) (explaining

“speech concerning public affairs is more than selfexpression; it is the essence of self-government”)

(quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,

270 (1964), the American Bar Association (ABA)

expressly adopted the Sullivan standard in Model

Rule of Professional Conduct (MRPC) 8.2 (a) for

regulating lawyer speech regarding the judiciary. In

the proposed final draft, the drafters cited both

Sullivan and Garrison, and explained that “the

Supreme Court has held that false statements about

public officials may be punished only if the speaker

acts with knowledge that the statement is “false or

with reckless disregard of whether it is false.”24

Thus Model Rule of Professional Conduct, 8.2

(a), which is identical to the Minnesota Rule, only

prohibits attorneys from making “a statement that

the lawyer knows to be false or with reckless

disregard as to its truth or falsity concerning the

qualifications or integrity of a judge”.

Thus, the current regulatory regime for the

vast majority of states merely prohibits lawyers from

making a statement “that the lawyer knows to be

false or with reckless disregard as to its truth or

falsity concerning the qualifications or integrity of a

judge.”

The ABA expressly recognized the applicability

of Garrison and Sullivan, and the drafters of Model

Rules intentionally incorporated the Sullivan

standard. The drafters also stated that: “[t]he critical

factors in constitutional analysis are the statement's

falsity and the individual's knowledge concerning its

falsity at the time of the utterance,” citing Garrison.

Disciplinary Authorities and Courts

Disregard the Constitutional Standard Found

in Sullivan, adopted in Garrison, and wrongly

use an Objective Standard

The Sullivan standard for determining whether a

statement is made with reckless disregard as to truth

or falsity is determined by examining the speaker's

subjective intent, which requires “that the defendant

in fact entertained serious doubts as to the truth of his

Voice, at 154.

See proposed Final Draft: Model Rules of

Professional Conduct, Am. Bar Ass’n, May 30, 1981 (legal

background explanation for Rule 8.2.

publication.” St. Amant v. Thompson 390 U.S. 727, 731

(1968) (emphasis added).

In MacDonald’s case, and countless others, the

disciplinary authorities and courts apply the incorrect

legal standard---- an objective standard, to determine

whether an attorney’s comments are protected by the

First Amendment. The objective standard used to

determine that an attorney acted with knowing or

reckless disregard for the truth---- is what a

reasonable attorney would say under the

circumstances. See Graham, 453 NW 2d 313,322

(Minn. 1990). But the “modified version” of the

constitution--- an objective standard--- is not the

constitutional standard as prescribed by the United

States Supreme Court, jurisprudence, and the

American Bar Association, with respect to the

disciplinary rule for attorneys, prohibiting them from

impugning the integrity of Judges.

Application of the Modified Version of the

Free Speech Analysis is Unconstitutional

Illustrating the divergence of opinion across the

country, the Minnesota Supreme Court ruled that

attorneys are subject to a modified version of the

constitutional standard for defamation claims. The

standard, adapted from New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), applies a version of the

actual-malice standard from defamation cases, but

Minnesota and countless other courts consistently

modify it to ask what a "reasonable attorney . . . would

do in the same or similar circumstances." Graham, 453

N.W.2d at 321-22,321 n.6. Courts wrongly reason that

its “modified standard” provides adequate protection

for attorney speech but also preserves the court’s

ability to discipline attorneys who make baseless

allegations against judges or other attorneys during

the course of litigation. See id. at 321-22.

The Objective Reasonableness Approach was

Expressly Rejected by this Court

An objective reasonableness approach was

expressly rejected by this Court in Garrison in the

precise context of lawyer speech regarding judges.

Louisiana had convicted Garrison because his

statement was “not made in the reasonable belief of

truth” on the theory that it was “inconceivable” that he

“had a reasonable belief , that not one but all eight of

these judges… were guilty of what he charged them

with Garrison v. Louisiana, 379 US 64, 78-79 (1964),

This Supreme Court in Garrison in reversing the

decision, was direct:

“This is not a holding applying the New

York Times test. The reasonable belief standard

applied by the trial judge is not the same as the

reckless-disregard-of-the-truth

standard.

According to the trial court’s opinion, a

reasonable belief is one which “an ordinary

prudent man might be able to assign a just

reason for, the suggestion is that under this test

the immunity from criminal responsibility…

disappears on proof that the exercise of ordinary

care would have revealed that the statement

was false. The test which we laid down in New

York Times in not keyed to ordinary care,

defeasance of the privilege is conditioned, not on

mere negligence, but on reckless disregard for

the truth.”

This Court has never had the occasion to

address the issue of criticism of the judicial system and

the judiciary in various cases involving attorneys.

Professor Tarkington’s contends, as does MacDonald,

that an appropriate standard for evaluating the

content of speech is found in New York times v.

Sullivan, and Garrison v. Louisiana.

II. FREE SPEECH BY ATTORNEYS IS

NECESSARY TO CHECK JUDICIAL POWER

AND INFORM THE PUBLIC

Attorneys are free to praise the judiciary, but

are not free to criticize the judiciary in any manner,

the speech inextricably intertwined with the rules of

professional conduct, specific that a violation would

subject the lawyer to discipline.

Lawyers, like MacDonald, have the education

and training to recognize, understand and articulate

problems with the judiciary, and are exposed to and

experience those problems as they bring clients’ cases

before Judges.

Tarkington writes that speech is essential to the

attorney’s role in the justice system in invoking or

avoiding government power in the protection of client

life, liberty and property, and is essential to the proper

functioning of the justice system and to safeguard the

integrity of the judiciary.

The Fundamental Issue is Free Speech for

Attorneys in this Exemplary Case.

With ill-conceived disciplinary proceedings

relating to attorney speech about judges, the harm

imposed on the proper functioning of the justice

system is evident.

The

application

the

professional

responsibility rule here applies a standard which

prohibits statements in and of themselves critical of a

Judge, or the court system, and as such the standard

typically used is an unconstitutional restriction of an

attorney's right to free speech.

With this Petition, this Court has the

opportunity to establish guidelines for attorney

speech, by applying the Sullivan and Garrison

standard originally adopted by the American Bar

Association in its Model rule regarding maintaining

the integrity of the profession. Given the present state

of the law, guidance to the lower federal courts and

state courts is clearly necessary.

An “Objective Reasonableness” standard was

Expressly Rejected by this Supreme Court

Despite disciplining attorneys under a rule that

on its face adopted the Sullivan standard, state and

federal courts, including the Minnesota Supreme

Court in MacDonald’s case, interpret that rule to

require an “objective reasonableness” standard --- the

very standard expressly rejected by the Supreme

Court in Garrison. This creates a trap for the unwary

lawyer. Every lawyer is familiar with the Sullivan

standard tested on the multi-state portion of the bar

exam. Thus when a lawyer is considering making a

statement about a judge, the lawyer may consult the

rule, recognize that it codifies Sullivan, and assume

that Sullivan will shield the lawyer from punishment

--- only to find out that despite the rules actual

language, the standard to be applied is a far cry from

Sullivan --- and the lawyer is subject to discipline.

Tarkington’s research is that most state

judiciaries have read the Sullivan standard out of the

language of MPRC 8.2 interpreting it to punish speech

in and of itself if it impugns the integrity of the

judiciary, contrary to the drafters of the Model Rules

which

intentionally incorporated the Sullivan

standard. 25

Judges, in their capacities as individuals or

courts, are entitled to no greater immunity from

criticism than other persons or institutions. Landmark

Communications, Inc. v. Virginia, 435 U.S. 829, 839

(1978).

If an attorney's activity or speech is protected

by the First Amendment, disciplinary rules governing

the legal profession cannot punish the attorney's

conduct. 26

25 See Truth, at 1569.

See In re Green, 11 P.3d 1078, 1086 n.7 (Colo. 2000) (per

curiam) citing In re Primus, 436 U.S. 412, 432-433 (1978); Bates

v. State Bar of Arizona, 433 U.S. 350, 355, 365, 384 (1977); State

of Oklahoma v. Porter, 766 P.2d 958, 966-970 (Okla.1988); see also

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991)

(Kennedy, J., dissenting in part). Green, 11 P.3d 1078, 1083 (Colo.

2000) (per curiam)

III. THIS COURT MUST PLACE IN CHECK

THE DIMINISHING AVAILABILTY, IF NOT

THE EVISERATION, OF FREE SPEECH BY

ATTORNEYS THAT IS CORE POLITICAL

SPEECH

It was in the very context of attorney speech

impugning the integrity of the judiciary that the

Supreme Court explained: “ Speech concerning public

affairs is more than self-expression, it is the essence

of self-government. The first and fourteenth

amendments embody our “profound national

commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open,

and that it may well include vehement, caustic, and

sometimes unpleasant sharp attacks on government

and public officials. Garrison v. Louisiana, 379 US

64, 74-75 (1964) (quoting Sullivan, 376 US at 270)

Even if comments regarding an individual judge

(or senator, or other government official) could be seen

as affecting public perception of the overall integrity of

the system, how does that make it speech worthy of

suppression under Sullivan and Garrison? If speech

can be punished as long as one can characterize the

comments made about one government official as

affecting the reputation of that entire branch of

government, then the Sullivan rule can never be

applied to statements about any government official.27

There can be no serious doubt that this case

presents

issue

great

national

importance. Lawyer

speech, association and

petitioning are essential to securing justice for

individuals and organizations.28

See Voice of Justice, p. 165

28 See Voice of Justice, p. 23

While running for the Minnesota Supreme

court, MacDonald was suspended from the practice of

law indefinitely for saying that "[C]ourt orders are

damaging people and families.... [T]here's a severe

failure to follow the rule of law, to follow our

constitution and uphold it and, quite frankly, our civil

rights are being violated by courts all over the state."

In re MacDonald, 962 NW 2d 451,458 (Minn.2021).

MacDonald claimed that, as a matter of law, she

was permitted by the First Amendment, as interpreted

in Republican Party of Minnesota v. White, 536 U.S.

765, 768 (2002), to state her opinion as to how the

judicial branch functions, and to criticize the decisions

it makes.

As a candidate for the judiciary, Ms. MacDonald

had a First Amendment privilege to offer her opinions

on issues and cases with which she disagreed pursuant

to the United States Supreme Court decision because

White held that the then Minnesota Code of Judicial

Canon 5(a)(3)(d)(I), which prohibited a candidate from

announcing “his or her views on disputed legal or

political issues,” violated the First Amendment.

Ms. MacDonald was permitted by White to

discuss, during her WCCO radio interview, the merits

of Judge Knutson’s decisions in the Grazzini-Rucki

case. Relying on Republican Party of Minnesota v.

White, MacDonald argued to the OLPR, the Referee,

the panel and the Minnesota Supreme Court ---- to no

avail -----that her statements were protected, because

she was commenting on legal issues as a candidate for

judicial office.

Impugning judicial qualifications and integrity

is core political speech protected by the First

Amendment. The worst examples of unacceptable

free speech involve efforts by government to insulate

itself from criticism.29 The Sullivan and Garrison

Courts relied upon Free Speech in holding that speech

critical of our government officials could not be

punished absent knowledge of or reckless disregard as

to a statement’s falsity. See Garrison v. Louisiana,

379 U.S. 64, 74--75 (1964) (explaining that “speech

concerning public affairs is more than self-expression;

it is the essence of self-government” (quoting N.Y.

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)))

MacDonald has the Experience to Articulate

Problems with the Judiciary

Lawyers, like MacDonald, have the education

and training to recognize, understand and articulate

problems with the judiciary, and are exposed to and

experience those problems as they bring clients’ cases

before judges. Here MacDonald did so for 35 years

with one client complaint. This is exactly the kind of

information that the public has both the right and

need to receive in order to make informed decisions

about the judiciary, to fulfill their self-governing role,

and check judicial abuses and incompetence.

Thirty -nine states elect their judiciary either

initially or through retention elections. 30 If lawyers

are prohibited from speaking and performing this

checking function, then the judiciary is largely

shielded from effective criticism and the public is left

ignorant regarding the actual integrity of the

judiciary.31

Tarkington writes that by silencing the very

group of people with the requisite knowledge of and

Cass R. Sunstein, Free Speech Now, 59 U. Chi. L. Rev. 255,

305 (1992)

See Republican Party of Minn. v. White, 536 US 765, 790 (2002).

31 Voice of Justice, at p. 159, 160, 165-166

exposure to the judiciary to make informed

judgments, the judiciary has shielded itself from

effective criticism, allowing for judicial selfentrenchment and clogging the wheels of political

change. In short , Courts are enforcing a self-serving

prophylactic viewpoint-based restriction on political

speech regarding the qualifications and integrity of

government officials—speech at the core of the first

amendment protection.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted, and the denial of the

reinstatement of Michelle MacDonald to the practice

of law should be reversed to enable her to run for the

Minnesota Supreme Court in 2024.

Dated: December 13, 2023.

Michelle MacDonald

Counsel of Record

OFFICES OF MICHELLE MACDONALD

1069 South Robert Street

West St. Paul, MN 55118

(651) 222-4400

Michelle@MacDonaldLawFirm.com

Attorney for Petitioner

APPENDIX INDEX

Judgment denying MacDonald’s Petition for

Reinstatement, September 15, 2023 ..................... 1a

Order denying MacDonald’s Petition for Rehearing,

September 8, 2023 .................................................. 2a

Opinion, In re Petition for Reinstatement of Michelle

MacDonald, A21-1636, Supreme Court of

Minnesota, July 26, 2023 ....................................... 3a

Opinion, In re Petition for Disciplinary Action against

Michelle MacDonald, A20-0473, Supreme Court of

Minnesota, June 30, 2021, Rehearing denied August

12, 2021................................................................. 13a

Transcript, WCCO Radio Interview with Candidate

Michelle MacDonald, October 3, 2018 ................ 42a

STATE OF MINNESOTA

SUPREME COURT

JUDGMENT

In re Petition for Reinstatement of

Michelle MacDonald, a Minnesota Attorney,

Registration No. 0182370.

Appellate Court #A21-1636

Pursuant to a decision of the Minnesota

Supreme Court duly made and entered, it is

determined and adjudged that the petition for

reinstatement is denied. Judgment is entered

accordingly.

Dated and signed: September 15, 2023

FOR THE COURT

Attest: Christa Rutherford-Block

Clerk of Appellate Courts

By:

Clerk of Appellate Courts

STATE OF MINNESOTA

IN SUPREME COURT

A21-1636

In re Petition for Reinstatement of

Michelle MacDonald, a Minnesota Attorney,

Registration No. 0182370.

ORDER

Based upon

proceedings herein,

all

the

files,

records,

and

IT IS HEREBY ORDERED that the petition of

Michelle MacDonald for rehearing pursuant to Rule

15(c), Rules on Lawyers Professional Responsibility, is

denied. See also Minn. R. Civ. App. P. 140.01.

Dated: September 8, 2023

BY THE COURT

Natalie E. Hudson

Associate Justice

CHUTCH, THISSEN, JJ., took no part in the

consideration or decision of this case.

In re Petition for Reinstatement of Michelle

MacDonald, a Minnesota Attorney, Registration

No. 0182370.

No. A21-1636

Supreme Court of Minnesota

July 26, 2023

Original Jurisdiction Office of Appellate Courts.

Michelle L. MacDonald, West Saint Paul,

Minnesota, pro se.

Susan M. Humiston, Director, Binh T. Tuong,

Deputy Director, Office of Lawyers Professional

Responsibility, Saint Paul, Minnesota, for respondent.

SYLLABUS

Based on our independent review of the record,

the panel's conclusion that petitioner has not

undergone the requisite moral change for

reinstatement to the practice of law was not clearly

erroneous.

Petition denied.

OPINION

PER CURIAM

On June 30, 2021, we issued an opinion

indefinitely

suspending

petitioner

Michelle

MacDonald from the practice of law in Minnesota. In

December 2021, MacDonald filed a petition for

reinstatement to the practice of law. After a hearing, a

panel of the Lawyers Professional Responsibility

Board

unanimously

recommended

against

reinstatement, concluding that MacDonald failed to

prove by clear and convincing evidence that she had

undergone the requisite moral change. The Director of

the Office of Lawyers Professional Responsibility

(Director) agrees with the panel. MacDonald contests

the

panel's

findings,

conclusions,

and

recommendation, and asserts that she should be

reinstated.

Based on our independent review of the record,

we hold that the findings and conclusions of the panel

are not clearly erroneous. Because MacDonald has

failed to show by clear and convincing evidence that

she has satisfied the requirements for reinstatement

to the practice of law in Minnesota, we deny her

petition for reinstatement.

FACTS

MacDonald was admitted to practice law in

Minnesota in 1987. She has a history of discipline.

MacDonald was admonished in 2012 for trust-account

violations and failing to cooperate with the Director's

investigation. In January 2018, we suspended

MacDonald for 60 days for violating several ethics

rules in two matters, the most significant of which

involved her representation of a family law client, S.G.

In re MacDonald (MacDonald I), 906 N.W.2d 238, 24043 (Minn. 2018). In MacDonald I, we determined

MacDonald failed to competently represent a client;

made false statements about the integrity of a judge

(the judge in the S.G. matter) with reckless disregard

for the truth; improperly used subpoenas; knowingly

disobeyed a court rule and failed to follow a scheduling

order; and engaged in disruptive courtroom conduct in

the S.G. matter, including behavior resulting in her

arrest. 906 N.W.2d at 239-43. We also concluded that

MacDonald's legal experience was an aggravating

factor as well as her "lack of remorse, lack of insight,

and blaming of others." Id. at 248-49. In March 2018,

we reinstated MacDonald and placed her on probation

for 2 years.

In June 2021, we suspended MacDonald for a

second time. In re MacDonald (MacDonald II), 962

N.W.2d 451, 470 (Minn. 2021). This suspension was

based, in part, on an October 3, 2018, radio interview

about MacDonald's candidacy for the Minnesota

Supreme Court, which MacDonald gave while she was

on probation. Id. at 458. During the interview,

MacDonald discussed S.G.'s case and made statements

about the judge overseeing that dispute. Id. at 458-59.

We determined that MacDonald violated Minn. R.

Prof. Conduct 8.2(a) and 8.4(d) for "knowingly making

false statements about the integrity of a judge" during

her interview, and we also found that MacDonald, in

another matter during her probation, failed to comply

with the requirements of a fee-sharing representation,

in violation of Minn. R. Prof. Conduct 1.5(e)(2).

MacDonald II, 962 N.W.2d at 460-61, 466. We agreed

with the referee that MacDonald's disciplinary history,

probation status, and legal experience were

aggravating factors. Id. at 467-68. Because "the record

unequivocally establishe[d] that MacDonald ha[d] not

expressed remorse and ha[d] sought only to justify her

conduct," we concluded that MacDonald's lack of

remorse was also an aggravating factor. Id. at 468. We

indefinitely suspended MacDonald, with no right to

petition for reinstatement for 4 months. Id. at 470.

During MacDonald's 2021 suspension, and after

she filed her current petition for reinstatement, the

Director admonished MacDonald for violating Minn.

R. Prof. Conduct 3.1, 4.4(a), and 8.4(a). MacDonald's

misconduct surrounding the admonishment stemmed

from a family law matter in which MacDonald, during

her probation, assisted one of the parents in creating

and serving notices that had no substantial purpose

other than to harass, intimidate, and burden the

parties to whom the notices were served. MacDonald

did not contest the admonition.

MacDonald filed her petition for reinstatement

in December 2021. The panel conducted a 3-day

hearing. At the hearing, MacDonald presented the

testimony of seven witnesses and testified on her own

behalf. Testimony from MacDonald and her witnesses

included descriptions of an encounter between

MacDonald and the judge in the S.G. matter, in

November 2018, that resulted in their participation in

a prayer circle. The Director called the judge to testify,

who also described the prayer circle.

In October 2022, the panel issued its findings,

conclusions, and recommendation. The panel

concluded MacDonald "failed to demonstrate through

her actions or testimony, or through the testimony of

others, the requisite moral change" and thus

recommended denial of MacDonald's petition.

MacDonald ordered a hearing transcript and now asks

us to reinstate her.

ANALYSIS

We have the sole responsibility for determining

whether an attorney should be reinstated to the

practice of law in Minnesota. In re Kadrie, 602 N.W.2d

868, 870 (Minn. 1999). In evaluating whether to

reinstate an attorney, we "conduct an independent

review of the entire record; although we consider a

panel's recommendation, we are not bound by it." In re

Tigue, 960 N.W.2d 694, 699 (Minn. 2021). If the

attorney orders a transcript, as MacDonald did here,

we will uphold the panel's factual findings if the

findings are supported by the record and are not

clearly erroneous. In re Stockman, 896 N.W.2d 851,

856 (Minn. 2017). Factual findings are clearly

erroneous if we are left with the "definite and firm

conviction that a mistake has been made." Tigue, 960

N.W.2d at 699 (citations omitted) (internal quotation

marks omitted).

To be reinstated, the attorney must prove: "(1)

compliance with the conditions of suspension, (2)

compliance with the requirements of Rule 18, RLPR,

and (3) demonstration of a moral change."[1]

Stockman, 896 N.W.2d at 856 (citations omitted). We

also recently held that an attorney must prove

intellectual competence to practice law to be

reinstated. In re Mose, ___ N.W.2d ___, 2023 WL

4479642, at *7 (Minn. July 12, 2023). Here, only the

requirement to demonstrate moral change is at issue.

"Showing a moral change is the most important

factor in the determination of whether to reinstate an

attorney." Stockman, 896 N.W.2d at 857. An attorney

must prove "by clear and convincing evidence that

[she] has 'undergone such a moral change as now to

render [her] a fit person to enjoy the public confidence

and trust once forfeited.'" In re Swanson, 343 N.W.2d

662, 664 (Minn. 1984) (quoting In re Smith, 19 N.W.2d

324, 326 (Minn. 1945)). To establish a moral change,

"a lawyer must show remorse and acceptance of

responsibility for the misconduct, a change in the

lawyer's conduct and state of mind that corrects the

underlying misconduct that led to the suspension, and

a renewed commitment to the ethical practice of law."

In re Mose, 843 N.W.2d 570, 575 (Minn. 2014).

"Evidence of moral change must come from an

observed record of appropriate conduct and the

petitioner's state of mind and values." In re Lieber, 834

N.W.2d 200, 204 (Minn. 2013).

Here, the panel made numerous determinations

in evaluating MacDonald's alleged remorse and

acceptance of responsibility for her misconduct, her

change in conduct and state of mind, and her renewed

commitment to the ethical practice of law. Although

MacDonald testified that she was remorseful and sorry

for her misconduct, the panel ultimately found that

MacDonald failed to demonstrate the requisite

remorse. The panel determined that MacDonald

minimized the seriousness of her misconduct,

neglected to acknowledge her misconduct, and was

unable to show-through her own words or through the

testimony of others-any recognition of the harm she

caused by her misconduct. The panel found that

MacDonald "was unable to describe her understanding

of the root cause of the misconduct, other than to place

blame on the circumstances she was in when the

misconduct occurred." Likewise, although MacDonald

presented testimony from seven other people, the

panel found that "none of petitioner's witnesses were

able to point to any specific examples of petitioner's

show of remorse outside of the prayer circle, other than

her general statements to them that she felt remorse."

Ultimately, the panel concluded that MacDonald did

not meet her burden of proving by clear and convincing

evidence that she has undergone the requisite moral

change to render her fit to resume the practice of

law.[2]

MacDonald primarily emphasizes the specific

details of, and inferences from, the testimony of her

and her witnesses before the panel. The panel did not

find MacDonald or her witnesses' testimony on

remorse credible, and "[w]e generally defer to the

panel's findings that the petitioner's testimony

regarding moral change was not credible." Tigue, 960

N.W.2d at 701. Here, the record supports the panel's

findings that MacDonald and her witnesses lacked

credibility on the issue of remorse.[3] We therefore

defer to the panel's credibility determinations and its

findings. In re Mose, 754 N.W.2d 357, 362 (Minn. 2008)

(deferring to the panel's credibility determination); In

re Griffith, 883 N.W.2d 798, 802 (Minn. 2016) (same).

To demonstrate her remorse, MacDonald

primarily relied on her interaction with the judge from

the S.G. matter in November 2018-over 2 years before

her 2021 suspension. The encounter occurred at a

Rotary event when MacDonald and her friend

approached the judge and asked him if he would pray

with them. The panel found that "[n]one of the

witnesses recalled what was specifically stated in the

prayer circle, but a general request for forgiveness was

made and accepted by both parties."

The record supports the panel's finding that

evidence of the prayer circle did not demonstrate

MacDonald's remorse for her misconduct during the

2018 radio interview. MacDonald's friend testified

that MacDonald "didn't state any details at that time

of, like, what was the apology for," but she apologized

"basically for the past." The judge acknowledged the

interaction but testified that MacDonald did not

mention the harm she caused the judge or the public,

nor did she mention the 2018 radio interview.

Moreover, because MacDonald testified that she did

not recognize that her radio interview was improper

until our decision in 2021, any conduct that predated

this awareness, such as the prayer circle, does not

demonstrate remorse for the radio interview

misconduct. Based on our independent review of the

record, we conclude that the panel's finding that

MacDonald did not show remorse and acceptance of

responsibility for her misconduct is not clearly

erroneous.

Without the prayer circle, MacDonald has little

evidence of specific examples showing her moral

change. See In re Sand, 951 N.W.2d 918, 922 (Minn.

10a

2020) (stating that "evidence of this moral change

must come . . . from an observed record of appropriate

conduct" (citation omitted) (internal quotation marks

omitted)); Griffith, 883 N.W.2d at 802 (holding that

the panel did not clearly err by giving "little or no

weight" to the testimony of a petitioner's witnesses

when the witnesses did not provide "specific examples"

of how the petitioner had demonstrated moral change).

The panel also made numerous findings about

whether MacDonald has changed her conduct and

state of mind to correct the underlying misconduct

that led to her suspension, and whether she has

demonstrated a renewed commitment to the ethical

practice of law. Again, the panel found the testimony

of MacDonald and her witnesses to be unpersuasive,

and there is no reason to depart from the panel's

findings, which are supported by the record.[4] We are

also particularly concerned about MacDonald's

renewed commitment to the ethical practice of law

given that she was admonished after filing her petition

for reinstatement for assisting an individual in serving

frivolous notices upon third parties and she was

previously suspended for similar misconduct. See In re

Singer, 735 N.W.2d 698, 705 (Minn. 2007) (concluding

that the lawyer's conduct after filing his petition for

reinstatement, which demonstrated a pattern of

mismanagement of his personal finances when the

lawyer was suspended for financial misconduct and

failure to keep trust account books and records,

"hinder[ed] his ability" to prove that he was "morally

fit for the practice of law").

In summary, based on our independent review of

the record, we hold that MacDonald has not met her

burden of proving by clear and convincing evidence

that she has undergone a moral change. Accordingly,

we deny her petition for reinstatement.

11a

Petition denied.

CHUTICH, J., took no part in the consideration

or decision of this case.

THISSEN, J., took no part in the consideration

or decision of this case.

--------Notes:

[1] In addition to reinstatement requirements, we

weigh other factors in considering whether to reinstate

a lawyer, including the attorney's recognition that the

conduct was wrong, the seriousness of the misconduct,

any physical or mental pressures susceptible to

correction, and the length of time since the misconduct

and suspension. Stockman, 896 N.W.2d at 856.

Because moral change is dispositive here, we need not

address these other factors.

[2] MacDonald argues the panel misstated the factors

and applied the wrong burden of proof by requiring her

to prove by clear and convincing evidence each of the

three factors considered when evaluating moral

change. We reject MacDonald's interpretation of the

panel's decision; the panel appropriately considered

the three factors relevant to a moral change analysis

and ultimately concluded she failed to meet her

burden of proof. And we need not decide if the clear

and convincing burden of proof applies to each of the

three factors or applies only to the overarching issue of

whether an attorney has proven moral change. Even if

the panel misapplied the burden of proof to a

particular factor, our independent review assures us

that MacDonald failed to prove "by clear and

convincing evidence that [she] has 'undergone such a

moral change as now to render [her] a fit person to

enjoy the public confidence and trust once forfeited.'"

12a

Swanson, 343 N.W.2d at 664 (quoting Smith, 19

N.W.2d at 326).

[3] MacDonald argues the panel adopted its findings

verbatim from the Director's proposed findings of fact,

conclusions of law, and recommendations and thus we

should apply "strict scrutiny" to the findings of the

panel. According to MacDonald, adopting the

Director's proposal verbatim "indicates that the panel

did not review and analyze the facts independently."

But MacDonald concedes that the panel added two

findings to its decision that were not included in the

Director's proposal. Thus, we need not address

whether a more rigorous review is required as the

panel did not adopt verbatim the Director's entire

proposal.

[4] We do not consider the professional status of

MacDonald's law firm, or any alleged misconduct in its

operations or annual report submissions, in our

decision here. Although the panel noted concern

regarding potential additional misconduct since her

suspension, we do not need to decide whether the

panel clearly erred in making those determinations

because we do not rely on that evidence in reaching the

conclusion that MacDonald has not demonstrated the

requisite moral change.

---------

13a

IN RE Petition for DISCIPLINARY ACTION

AGAINST Michelle Lowney MACDONALD, a

Minnesota Attorney, Registration No. 0182370

A20-0473

Supreme Court of Minnesota.

Filed: June 30, 2021

Rehearing Denied August 12, 2021

Susan M. Humiston, Director, Office of Lawyers

Professional Responsibility, Saint Paul, Minnesota, for

petitioner.

Bobby Joe Champion, Minneapolis, Minnesota, for

respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers

Professional Responsibility filed a petition for

disciplinary action against respondent Michelle

Lowney MacDonald, alleging various acts of

professional misconduct. We appointed a referee. After

holding an evidentiary hearing, the referee

determined that MacDonald's conduct violated several

rules of professional conduct. The referee

recommended that we impose 1 year of probation. We

conclude that the referee's findings that MacDonald

violated the rules of professional conduct are not

clearly erroneous and that the referee did not clearly

err by rejecting MacDonald's laches defense because

she failed to show prejudice. We further conclude that

MacDonald's false statements impugning the integrity

of a judge with knowing or reckless disregard for the

truth are not protected by the First Amendment.

Finally, because of the repeated attorney misconduct,

we conclude that an indefinite suspension, with no

14a

right to petition for reinstatement for 4 months, is the

appropriate discipline.

FACTS

MacDonald was admitted to the practice of law

in Minnesota in 1987. In 2012, MacDonald was

admonished for trust-account violations and failing to

cooperate with the Director's investigation. In January

2018, we suspended MacDonald for 60 days for, among

other misconduct, making false statements about the

integrity of a judge with reckless disregard for the

truth. In re MacDonald, 906 N.W.2d 238, 240, 241–43

(Minn. 2018). MacDonald's false statements arose

from her representation of S.G., a client in a family law

matter for whom MacDonald was the fourth attorney

of record. Id. at 240. We reinstated MacDonald and

placed her on probation for 2 years in March 2018. In

re MacDonald, 909 N.W.2d 342, 342 (Minn. 2018)

(order). One of the conditions of MacDonald's

probation was that she abide by the Minnesota Rules

of Professional Conduct. Id.

The current petition for disciplinary action

arises from MacDonald's representation of R.P. and

her statements during a radio interview. On May 21,

2018, R.P. initially consulted with MacDonald about

potential personal injury litigation. MacDonald offered

to evaluate the merits of R.P.’s personal injury claim

for a flat fee of $500.

On June 5, 2018, R.P. returned to MacDonald's

office to hire her firm to review the documents that he

had provided. MacDonald introduced R.P. to K.P., the

attorney who would review his case. R.P. signed a

retainer agreement that authorized MacDonald's firm

to "[r]eview data provided for" a possible personal

injury case for a flat fee of $500, with representation

to end "July 1 when review [is] complete." The

15a

agreement was signed by MacDonald and K.P., both

purportedly on behalf of the firm, and R.P. paid the

$500 fee. But MacDonald did not inform R.P. that K.P.

was neither an employee nor member of her firm or

that the fee would be split between K.P. and herself.

MacDonald also did not obtain R.P.’s written consent

to the fee-sharing arrangement, as required by Minn.

R. Prof. Conduct 1.5(e)(2). After reviewing R.P.’s case,

MacDonald declined to provide further representation.

In 2018, MacDonald also sought election to the

Minnesota Supreme Court. On October 3, 2018—after

she was reinstated to the practice of law but while she

was still on supervised probation—MacDonald was

interviewed on WCCO radio regarding her candidacy.

At the outset of the program, MacDonald told the

interviewer that she was speaking out "because courts

need reform." She explained, "[C]ourt orders are

damaging people and families.... [T]here's a severe

failure to follow the rule of law, to follow our

constitution and uphold it and, quite frankly, our civil

rights are being violated by courts all over the state."

The interviewer asked MacDonald if a case involving

S.G., a former client of MacDonald, was "one of the

cases that you are referring to of civil rights being

violated." MacDonald replied that it was.

MacDonald asserted that the judge in the S.G.

case violated the rights of both parents when he

ordered that they "have no contact with their children

whatsoever." She further stated, "[T]he judge did that

in September of 2012 without any hearing, without any

process, and in two hours ordered her, she was already

divorced, to leave her home, leave her children ... and

ordered her to not return or else she would be

arrested." (Emphasis added.) MacDonald testified at

the disciplinary hearing that when she said "without

any process," she meant "without any due process" and

16a

was referring to the judge's September 7, 2012 order.

But she admitted that the order was issued after an

emergency telephone conference in which thencounsel for both parents and a guardian ad litem

participated. Further, that order was entered by

mutual agreement of the parties and was even drafted

by S.G.’s attorney at that time.

Later, the interviewer brought up the

disappearance of S.G.’s two daughters during the

custody litigation and S.G.’s conviction arising from

that

disappearance.

The

interviewer

asked

MacDonald when she had learned that the girls were

missing and what S.G. had told her. MacDonald stated

that anything S.G. may have told her was protected by

attorney-client privilege and that, in any event, she

never believed that what S.G. did was a crime.

MacDonald continued, "[T]he crime was with the court

when the judge did an order that neither parent could

contact their kids. That's when the deprivation

happened." (Emphasis added.)

Finally, at the end of the interview, MacDonald

was asked whether there was anything she wanted

voters to know before the election. She replied, "I'm

running for Minnesota Supreme Court because time

and time again as one attorney representing

thousands of people across the state I've witnessed an

unprecedented display of courts abusing their

discretion and authority, damaging people and

families.... [S.G.] is a, a example of that."

The Director filed a petition for disciplinary

action against MacDonald in March 2020. Following

an evidentiary hearing, the referee issued findings

consistent with the facts described above. The referee

concluded that, as to the R.P. matter, the Director had

proven by clear and convincing evidence that

MacDonald had failed to comply with the

17a

requirements of a fee-sharing representation, in

violation of Minn. R. Prof. Conduct 1.5(e)(2).1 As to the

WCCO interview, she found that MacDonald's

statements denigrating the judge in the S.G. case were

"demonstrably false" because those statements

repeated the false statements for which MacDonald

was disciplined in 2018 and unfairly undermined

public confidence in the administration of justice. The

referee also found that, as a whole, MacDonald's

statements about the judicial system "foster disrespect

for the system." She concluded that the Director had

proven by clear and convincing evidence that

MacDonald's statements attacking the integrity of the

judge and the Minnesota judicial system violated

Minn. R. Prof. Conduct 8.2(a)2 and 8.4(d).3 The referee

recommended 1 year of additional supervised

probation.4

ANALYSIS

In a disciplinary proceeding, the Director must

prove by clear and convincing evidence that an

attorney violated the Rules of Professional Conduct. In

re Grigsby, 764 N.W.2d 54, 60 (Minn. 2009). Because

MacDonald ordered a transcript of the hearing before

the referee, she may challenge the referee's findings of

fact and conclusions. Id.; see Rule 14(e), Rules on

Lawyers Professional Responsibility (RLPR). We give

the referee's findings and conclusions "great

deference" and will not reverse those findings or

conclusions when "they have evidentiary support in

the record and are not clearly erroneous." Grigsby, 764

N.W.2d at 60 (citations omitted) (internal quotation

marks omitted); see also In re Walsh, 872 N.W.2d 741,

747 (Minn. 2015) (providing that when a transcript is

ordered, "we review a referee's conclusion that an

attorney's conduct violated the rules of professional

18a

conduct for clear error"). A finding of fact is clearly

erroneous when, upon review, we are "left with the

definite and firm conviction that a mistake has been

made." In re Ulanowski, 800 N.W.2d 785, 793 (Minn.

2011) (citation omitted) (internal quotation marks

omitted). Even when a transcript is ordered, we review

the referee's "conclusions of law that do not rely on the

referee's factual findings," including the interpretation

of the Rules of Professional Conduct, de novo. In re

Montez, 812 N.W.2d 58, 66 (Minn. 2012).

MacDonald first challenges the referee's factual

findings. As to the WCCO interview, MacDonald

claims that, because the referee quoted only portions

of her statements, the referee's findings "represent the

words of the Referee, not those actually spoken" by

MacDonald. But MacDonald does not explain why

quoting her words more extensively would change the

referee's findings that her comments violated Rules

8.2(a) and 8.4(d) of the professional conduct rules. The

referee is not required to recite the entire interview

transcript, and the referee did not take MacDonald's

remarks out of context or otherwise distort their

meaning.

MacDonald also claims that the referee

conflated two orders from the S.G. case that the

parties offered as exhibits. We have carefully reviewed

the referee's findings and the relevant exhibits and

conclude that the referee properly explained those

orders. The referee correctly observed that an

emergency telephone conference was held before the

September 7, 2012 order and that a later order

identified a stipulation that had been made between

the parties in the S.G. case. Therefore, the referee did

19a

not clearly err in her findings related to the WCCO

interview.

As to the R.P. matter, MacDonald challenges

the referee's finding that she failed to inform R.P. of

the fee-splitting arrangement and to obtain his

consent to the arrangement in writing, in violation of

Minn. R. Prof. Conduct 1.5(e)(2). MacDonald claims

that the referee lacked clear and convincing evidence

to make this finding because MacDonald verbally

informed R.P. of the arrangement and because R.P.

wrote the fee split on a copy of the retainer agreement.

There is ample support in the record for the

referee's findings. At the hearing, R.P. testified that he

did not find out about the fee split until after the

representation ended and that the notes were written

to assist the Director in investigating a complaint he

filed against MacDonald. Although MacDonald and

R.P. offered conflicting testimony on this point, the

referee was entitled to credit R.P. over MacDonald. See

In re Jones, 834 N.W.2d 671, 677 (Minn. 2013) (stating

that we find it "particularly appropriate to defer to the

referee" when the referee's findings rest on disputed

testimony and witness credibility). In addition, two of

the handwritten dates on R.P.’s copy of the retainer

agreement are after June 5, the day R.P. signed the

retainer agreement, which supports R.P.’s testimony

that he did not write the notes until a later date.

Finally, as MacDonald admitted, her form retainer

agreement does not contain any information about a

fee-sharing arrangement. The referee did not clearly

err by finding that MacDonald failed to obtain R.P.’s

written consent to the fee split.

II.

Having upheld the referee's factual findings, we

now turn to MacDonald's primary challenges to the

20a

referee's conclusions. MacDonald raises two general

defenses: laches and the First Amendment. We

address each in turn.

MacDonald first asserts the defense of laches.

She argues that the Director unfairly delayed by

waiting to bring this disciplinary action until March

2020, although the underlying events took place in

June and October 2018. Although the delay is not

explained by the record, the referee correctly rejected

MacDonald's defense. The doctrine of laches bars

prosecution of a disciplinary petition only when the

attorney has been unfairly prejudiced by the delay. See

In re Sklar, 929 N.W.2d 384, 390 (Minn. 2019)

(rejecting a laches defense because there were "no

concerning gaps in the procedural history" of the case

and because the attorney had not "articulated any

specific prejudice" from the delays); In re N.P., 361

N.W.2d 386, 392 (Minn. 1985) ("Our concern, however,

is not directed so much at the length of the delay itself

but at whether the delay has resulted in prejudice to

the attorney being investigated."). Because the referee

found that "[n]o unfair prejudice to [MacDonald] is

evident in the record of these proceedings," and

because MacDonald does not explain how she was

prejudiced by the delay, the referee did not clearly err

by rejecting MacDonald's laches defense.

MacDonald's next, and primary, defense is that

her comments during the interview are protected by

the First Amendment. We construe her brief as

advancing the following arguments: (1) her statements

were nonactionable opinion, (2) her statements were

true, (3) the referee applied the wrong legal standard

21a

for determining whether MacDonald's speech was

protected, and (4) the referee failed to apply strict

scrutiny review. None of these arguments has merit.

Turning to MacDonald's first argument, we

conclude that her comments were statements of fact,

not of opinion. When determining whether a statement

is an opinion, we consider the statement's "specificity

and verifiability, as well as [its] literary and public

context." Diesen v. Hessburg, 455 N.W.2d 446, 451

(Minn. 1990). "Merely cloaking an assertion of fact as

an opinion does not give that assertion constitutional

protection." In re Nathan, 671 N.W.2d 578, 584 (Minn.

2003).

The first statement at issue is MacDonald's

claim that the judge in the S.G. matter violated the

rights of the parents by issuing the September 7, 2012

order "without any hearing, without any process." At

the disciplinary hearing, MacDonald admitted that

the order was issued after a telephone conference at

which counsel for both parents participated, but,

MacDonald testified, she does not consider a telephone

conference to be a hearing. She also explained that by

"without any process" she meant "without any due

process," which she believes includes "her client's right

to be personally noticed, to be personally heard, for the

public to have access to the hearing, and compliance

with all of [the] standard deadlines required in family

court pleadings."

Without a doubt, MacDonald is free to speak her

opinion about what due process should entail. But her

comment was not an opinion; it was a statement of

fact. MacDonald asserted that a particular order in a

particular case was issued without any hearing or any

due process. That claim is specific and verifiable.

Further, in context, a reasonable person would not

understand MacDonald merely to be opining about the

22a

sufficiency of a telephone conference because

MacDonald failed to disclose that a telephone

conference took place. A reasonable listener would

have no reason to assume the relevant facts, namely,

that the order was issued on the mutual agreement of

the parties after a telephone conference, in which

counsel for both parties participated, and that the

order was drafted by then-counsel for MacDonald's

former client. In fact, a reasonable listener would

assume the opposite, namely, that those events did not

take place. Consequently, even if MacDonald's

statement were merely an opinion, it would not be

protected. See Milkovich v. Lorain J. Co., 497 U.S. 1,

18–19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (stating

that there is no "wholesale defamation exemption" for

opinions because expressions of opinion often imply

false statements of fact); Restatement (Second) of

Torts § 566 cmt. c (1977) (explaining that even a

statement of opinion can give rise to defamation

liability when it implies the existence of undisclosed

defamatory facts as the basis for the opinion). In any

event, we reject MacDonald's attempt to immunize her

statement by recasting it as an opinion now and

conclude that MacDonald's assertion was a statement

of fact.

Next, MacDonald's comment that "the crime

was with the court when the judge did an order that

neither parent could contact their kids" is also a

statement of fact. The question of whether the judge

exceeded his lawful authority by issuing the order is

specific and verifiable.

Finally, MacDonald stated, "[C]ourt orders are

damaging people and families.... [T]here's a severe

failure to follow the rule of law, to follow our

constitution and uphold it and, quite frankly, our civil

rights are being violated by courts all over the state."

23a

Then, in response to the interviewer's question asking

whether the S.G. case "was one of the cases that you

are referring to of civil rights being violated,"

MacDonald replied that it was. MacDonald's

statement that the S.G. matter is an example of courts

damaging people and families, failing to follow the rule

of law, and violating people's civil rights is specific and

verifiable, and in context could be understood only as

a factual claim. Accordingly, the referee did not err by

determining that MacDonald's statements were not

protected opinions.5

Turning to MacDonald's second argument, we

consider whether her statements were true.

MacDonald's assertion that the September 7, 2012

order violated the rights of the parents because it was

issued "without any hearing, without any process" is

false. Ordinarily, procedural due process requires

notice and a meaningful opportunity to be heard.

Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632

(Minn. 2012). As MacDonald admitted at the

disciplinary hearing, the order was issued after a

telephone conference in which then-lawyers for both

parents participated, and S.G.’s then-lawyer even

drafted the order. MacDonald, 906 N.W.2d at 240.

Therefore, the judge's order did not violate the parents’

rights for lack of a hearing or due process, and

MacDonald's statement to the contrary was false, as

the referee properly found.6

Next, MacDonald's statement that the judge

committed a "crime" in issuing the order is false

because MacDonald has identified no crime committed

by the judge, and MacDonald's due process claims

were previously considered and rejected. See id. at 240,

243 (explaining that MacDonald's claims were rejected

by the district court and in a subsequent federal

lawsuit). For the same reason, MacDonald's statement

24a

that the S.G. case is an example of "civil rights ... being

violated by courts all over the state" was untrue. Id.

MacDonald's second argument is without merit.

Turning to MacDonald's third argument, we

consider whether the referee applied the correct legal

standard to determine whether MacDonald's

comments were protected by the First Amendment.

Relying on In re Graham, 453 N.W.2d 313, 322 (Minn.

1990), the referee applied an objective standard to

determine that MacDonald acted with knowing or

reckless disregard for the truth because a reasonable

attorney would not have made her statements under

the same circumstances. MacDonald argues that the

referee should have considered MacDonald's belief

that her statements were true because the United

States Constitution requires a subjective "actual

malice" standard for civil and criminal liability for

defaming a public figure. See New York Times Co. v.

Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11

L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S.

64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).

MacDonald's argument is without merit. As we

explained in MacDonald's 2018 disciplinary

proceedings, Graham adopted a "modified version" of

the constitutional standard with respect to attorney

discipline. MacDonald, 906 N.W.2d at 246 (explaining

the "modified actual-malice test" in Graham, 453

N.W.2d at 321–22, 321 n.6). Under that standard, the

factfinder determines whether a "reasonable attorney"

would have made the false statements under the same

circumstances. Id. Nothing has changed since 2018

that would prompt us to reconsider our wellestablished standard, and no other authority cited by

MacDonald requires us to do so.7 Accordingly, the

referee was correct to apply an objective standard.

25a

Moreover, the referee also concluded that

MacDonald's statements impugning the integrity of

the judge were "knowingly" false, and we agree.

MacDonald was aware that her claim that the

September 7, 2012 order was issued without any

hearing and without any due process was false as early

as 2013. MacDonald had challenged the September 7,

2012 order, arguing that it was issued because of an ex

parte communication between the judge and counsel

for one parent. Id. The judge denied MacDonald's

motion and explained that it was based on an

inaccurate factual assumption because the order was

issued by mutual agreement of the parties after a

telephone conference in which then-counsel for both

parents participated. Id. Further, her argument

bordered on the absurd, given that the order had been

drafted by S.G.’s then-attorney. Id. And not only did

MacDonald know these facts in 2013, she also was

reminded of these facts in her 2018 disciplinary

proceedings, which predate her false statements of fact

that prompted this disciplinary action. See id.

Accordingly, the referee did not err by concluding that

MacDonald's statements impugning the judge's

integrity were knowingly false.

Relying on Republican Party of Minnesota v.

White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694

(2002), MacDonald also argues that her statements

were protected because she was commenting on legal

issues as a candidate for judicial office, which,

according to MacDonald, should merit greater

constitutional protection. Her reliance is misplaced.

White struck down a rule of the Minnesota Code of

Judicial Conduct that broadly prohibited candidates

for judicial office from announcing their views on

disputed legal or political issues. Id. at 788, 122 S.Ct.

2528. But White did not hold that a candidate may

26a

knowingly or recklessly make false statements of fact

about the integrity of judicial officers without

consequence, which is the issue here. Neither did

White conclude that candidates for judicial office

receive greater constitutional protection than other

lawyers. As a candidate for judicial office, MacDonald

was obligated to follow the rules of professional

conduct, and MacDonald's knowingly false statements

about a judge, made during a public interview as a

candidate for judicial office, are not protected by White.

Turning to MacDonald's final argument, we

consider whether the referee erred by not applying

strict

scrutiny

when

determining

whether

MacDonald's comments could subject her to discipline

under the rules of professional conduct. It is well

established that "[t]he First Amendment ‘generally

prevents government from proscribing speech ...

because of disapproval of the ideas expressed.’ " State

v. Casillas, 952 N.W.2d 629, 636 (Minn. 2020) (quoting

R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct.

2538, 120 L.Ed.2d 305 (1992)), petition for cert. filed,

89 U.S.L.W. 3398 (U.S. May 24, 2021) (No. 20-1635).

Generally, a statute that regulates speech based on its

content is presumptively unconstitutional and will be

upheld only when it survives strict scrutiny, that is, if

the statute is narrowly tailored to serve a compelling

government interest. Id. at 640.

Strict scrutiny review is not required when a

lawyer is disciplined for defamatory conduct that

violates the rules of professional conduct. Defamation

is a category of speech to which ordinary constitutional

protections do not apply. See id. at 637 (identifying

defamation as one of the "limited areas" in which the

content of speech may be restricted because it is " ‘of

such slight social value as a step to truth that any

benefit that may be derived from [it] is clearly

27a

outweighed by the societal interest in order and

morality’ " (quoting R.A.V., 505 U.S. at 382–83, 112

S.Ct. 2538)). Minnesota Rule of Professional Conduct

8.2(a) prohibits a subset of defamatory speech, namely,

false statements of fact by a lawyer "concerning the

qualifications or integrity of a judge, adjudicatory

officer, or public legal officer, or of a candidate for

election or appointment to judicial or legal office."

Accordingly, strict scrutiny review is not required.

Instead, as we held in Graham, the proper test for

determining whether a lawyer may be subject to

discipline under Rule 8.2(a) is whether a reasonable

lawyer in the same circumstances would have made

the statement. 453 N.W.2d at 322.

In sum, we conclude that the referee properly

rejected MacDonald's laches and First Amendment

defenses.8

III.

We now consider the appropriate discipline. The

referee recommends that we impose a period of

probation for 1 year under the supervision of an

attorney who is familiar with the allegations of both

the 2018 discipline and the violations in this case. The

Director asks us to impose a 90-day suspension with

the requirement of a petition for reinstatement.

MacDonald requests that we impose no discipline.

"Although we give ‘great weight’ to the referee's

recommendation, we maintain the ultimate

responsibility for determining the appropriate

sanction." In re Greenman, 860 N.W.2d 368, 376

(Minn. 2015) (citation omitted). In determining the

appropriate sanction, we examine four factors: the

nature of the misconduct, the cumulative weight of the

disciplinary violations, the harm to the public, and the

harm to the legal profession. Id. We also consider

28a

aggravating and mitigating factors. Id. Finally,

although we may consider similar cases, the discipline

is tailored to the specific facts of each case. Id.

Ultimately, the goal of discipline is "not to punish the

attorney, but rather to protect the public, to protect the

judicial system, and to deter future misconduct by the

disciplined attorney as well as by other attorneys." In

re Albrecht, 779 N.W.2d 530, 540 (Minn. 2010)

(citation omitted) (internal quotation marks omitted).

We first address the four factors, beginning with

the nature of MacDonald's misconduct. MacDonald

committed two types of misconduct: knowingly making

false statements about the integrity of a judge and

failing to obtain her client's written consent to a feesplitting arrangement. Because "[h]onesty and

integrity are chief among the virtues the public has a

right to expect of lawyers," In re Ruffenach, 486

N.W.2d 387, 391 (Minn. 1992), it is well established

that dishonesty "warrants severe discipline," In re

Houge, 764 N.W.2d 328, 338 (Minn. 2009). Accord In

re Nett, 839 N.W.2d 716, 722 (Minn. 2013) (stating that

an attorney's misconduct, which included making false

statements about members of the judiciary, "warrants

a serious disciplinary sanction"). Therefore,

MacDonald's false statements about the judge weigh

in favor of serious discipline.

The rules governing fee splitting between

attorneys in different firms protect important client

rights. See Christensen v. Eggen, 577 N.W.2d 221, 225

(Minn. 1998) (explaining that the rules protect the

right of clients to choose their attorney, remain

knowledgeable about their case, and avoid the risks

inherent in referral fees). Here, MacDonald failed to

obtain a client's written consent to a fee-splitting

29a

arrangement, but the arrangement involved a single

client, a relatively small amount of money ($500), and

only one attorney from another firm. Consequently,

the nature of this misconduct is less significant.

We next address the cumulative weight of

MacDonald's disciplinary violations. In doing so, we

distinguish "a brief lapse of judgment or a single,

isolated incident of misconduct from multiple

instances of misconduct occurring over a substantial

amount of time." Greenman, 860 N.W.2d at 377

(citation omitted) (internal quotation marks omitted).

MacDonald's misconduct took place on only two

occasions and in fairly close proximity: June 5 and

October 3, 2018. She also committed each type of

misconduct on only one occasion. Consequently, this

factor does not weigh heavily against MacDonald.

The final two factors—harm to the public and to

the legal profession—require us to consider "the

number of clients harmed and the extent of their

injuries." In re Nwaneri, 896 N.W.2d 518, 526 (Minn.

2017). Here, MacDonald's misconduct in the R.P.

matter is relatively minimal. It involved a single

client, a sum of only $500, and an initial review of his

case. In addition, MacDonald's misconduct did not

waste judicial resources beyond those involved in the

disciplinary process. But the harm from MacDonald's

comments during the interview is serious. As we

stated when MacDonald was previously before us,

"baselessly attacking the integrity of a judge" in itself

harms the legal profession. MacDonald, 906 N.W.2d at

248; see Minn. R. Prof. Conduct 8.2 cmt. 1 ("Expressing

honest and candid opinions on [matters such as the

30a

fitness of judicial candidates] contributes to improving

the administration of justice. Conversely, false

statements by a lawyer can unfairly undermine public

confidence in the administration of justice."). Here, the

harm is multiplied because MacDonald's statements

were aired on a radio interview and were heard by

countless listeners. Therefore, these factors warrant

more severe discipline.

We also must consider any aggravating and

mitigating factors. The referee found three

aggravating factors: (1) MacDonald has a disciplinary

history; (2) MacDonald was on probation at the time of

her misconduct; and (3) MacDonald has over 30 years

of experience. The referee found that no mitigating

factors are applicable.

We agree with the referee that MacDonald's

disciplinary history and probation status are two

aggravating factors. See In re McCloud, 955 N.W.2d

270, 278 (Minn. 2021) (finding history of prior

discipline and probation status at the time of

misconduct as two aggravating factors). We give

serious weight to MacDonald's disciplinary history

because her prior discipline involved the same type of

misconduct. See In re Hulstrand, 910 N.W.2d 436, 444

(Minn. 2018). MacDonald does not contest these

factors.

MacDonald challenges the referee's use of her

experience practicing law as an aggravating factor.

She argues that her career should be a mitigating

factor. As support, she cites In re Wylde, 454 N.W.2d

423, 423 (Minn. 1990), in which we held that the

appropriate discipline for a lawyer who had an

unblemished disciplinary record for 20 years, and

whose only misconduct had been the late filing and

31a

payment of personal income taxes, was a public

reprimand followed by probation.

We agree with the referee. It is well established

that an attorney's "lengthy experience" may be treated

as an aggravating factor. In re Sea, 932 N.W.2d 28, 37

(Minn. 2019). In fact, we treated MacDonald's lengthy

experience as an aggravating factor when we

disciplined her in 2018. MacDonald, 906 N.W.2d at

248–49. Further, even in Wylde, we did not consider

the length of the lawyer's career in isolation; we

considered it in conjunction with the attorney's

professional reputation, which can itself be a

mitigating factor. See 454 N.W.2d at 424 (explaining

that the attorney was "held in high esteem" for his

"professional competence"); Albrecht, 779 N.W.2d at

537 (noting that a lawyer's reputation "for integrity

and hard work" can be a mitigating factor). Finally,

our law has changed since we decided Wylde, and we

no longer consider the absence of a disciplinary history

to be a mitigating factor. See In re Aitken, 787 N.W.2d

152, 162 (Minn. 2010). Therefore, MacDonald's

lengthy experience is an aggravating factor.

The Director asks us to recognize an additional

aggravating factor not found by the referee, namely,

MacDonald's failure to recognize the wrongful nature

of her misconduct and her failure to express remorse.

"Whether an attorney is remorseful for [her]

misconduct is an important issue in an attorney

discipline case," and the failure to address it can be

clear error. Albrecht, 779 N.W.2d at 538. Here, the

referee made no findings expressly related to

MacDonald's recognition of the wrongfulness of her

actions or her expression of remorse, despite the

Director arguing that lack of remorse was an

aggravating factor. But the record unequivocally

establishes that MacDonald has not expressed

32a

remorse and has sought only to justify her conduct. For

example, at the disciplinary hearing, MacDonald

repeatedly defended her comments from the WCCO

interview, saying, "My opinion was that [the

September 7, 2012 order] didn't have any due process,"

"There was no phone hearing [but only a phone

conference because] that didn't resemble any type of

hearing that I've ever been involved with," "My opinion

is absolutely positively there was no due process

there.... Due process is more extensive than that," and

"My opinion is [the telephone conference] is ex parte ...

but my opinion is different than yours, I guess." She

also refused to acknowledge that she had failed to

obtain R.P.’s written consent to the fee-splitting

arrangement, even though she admitted that, at most,

she verbally told R.P. of the fee split, and that he wrote

it down himself. Therefore, the referee clearly erred by

not finding that MacDonald's failure to acknowledge

the wrongfulness of her conduct, and her lack of

remorse, are an aggravating factor.

Next, MacDonald asserts that her pro bono

work is a mitigating factor. Although " ‘extensive pro

bono or civil work’ might constitute mitigation," this

factor requires a "qualitative judgment" by the referee

to determine whether the pro bono work is "adequately

extensive to deserve mitigation." MacDonald, 906

N.W.2d at 249 (quoting Wylde, 454 N.W.2d at 426 n.5).

Here, the referee did not make specific findings as to

MacDonald's pro bono work; the referee simply found

that "[n]o mitigating factors are applicable." Although

the failure to address aggravating or mitigating

factors can be clear error, a "lack of clarity" in

addressing a lawyer's pro bono work is not clear error

when the record contains few details about the extent,

or number of hours, of the lawyer's involvement.

Albrecht, 779 N.W.2d at 539. That is the case here.

33a

MacDonald has offered some evidence of the extent of

her work by testifying that she has received the

Northstar Lawyers pro bono recognition every year

from 2013 to 2019. But it is not clear whether, or the

extent to which, her other activities or

accomplishments constitute pro bono legal work.

Overall, the record does not show that MacDonald's

pro bono work was so extensive that the referee clearly

erred by determining that no mitigating factors

applied.

Finally, we examine similar cases to ensure the

imposition of consistent discipline. The Director cites

three cases to support her request that we impose a

90-day suspension with the requirement of a petition

for reinstatement. MacDonald cites no cases for

comparison to support her request that we impose no

discipline.

The most similar case is MacDonald's 2018

disciplinary proceedings in which we suspended her

for 60 days, followed by 2 years of probation.

MacDonald, 906 N.W.2d at 240. As here, MacDonald

made false statements about the integrity of the same

judge in his handling of the same matter that was the

subject of MacDonald's comments on WCCO radio. See

id. But there, MacDonald's false statements were of a

greater variety, were made orally and in writing, were

asserted in three fora, and were repeated over a longer

duration of time. See id. at 240–45. In addition,

MacDonald had engaged in extensive other

misconduct, which included failing to competently

represent a client, improperly using subpoenas,

knowingly disobeying a court rule, failing to follow a

scheduling order, and engaging in disruptive

courtroom conduct, including behavior resulting in her

34a

arrest. Id. at 244. But, unlike here, MacDonald did not

engage in repeat behavior for which she had

previously been suspended from the practice of law

and subsequently placed on supervised probation.

We also look to Graham, a case we relied on

when fashioning MacDonald's discipline in 2018. See

MacDonald, 906 N.W.2d at 250. There, Graham's

misconduct included repeatedly making false

statements about multiple people, including a district

court judge and a magistrate judge, with reckless

disregard for the truth. Graham, 453 N.W.2d at 315.

We stated that "[w]here an attorney makes statements

‘of his certain knowledge,’ with reckless disregard as

to the statements’ truth or falsity, impugning the

integrity of those who work within the judicial system,

at the very least a public reprimand is in order." Id. at

325. But we also considered several aggravating

factors, including that Graham had accused the judge

of "perjury, deliberate falsehoods and criminal abuse

of power" and lodged multiple frivolous motions. Id.

We also gave serious weight to Graham's "attitude" of

"believ[ing] in a conspiracy against him and

preferr[ing] to find fault with others than himself."

Therefore, we concluded that a 60-day suspension was

appropriate. Id. As in Graham, MacDonald's primary

misconduct is her persistent denigration of a judge's

integrity, and her statements bear some notable

similarities to those in Graham as to the allegedly

unfair and criminal process used by the judge.

Although here the referee made no findings as to

MacDonald's attitude, we have determined that

MacDonald has shown a lack of remorse, which

constitutes an aggravating factor. Moreover, Graham

had not previously been suspended for recklessly

making false statements about the integrity of a judge.

35a

Another decision cited by the Director, which we

also relied on in 2018, is In re Torgerson, 870 N.W.2d

602 (Minn. 2015). See MacDonald, 906 N.W.2d at 249–

50. We disciplined Torgerson for disobeying a court

order, repeatedly making false statements, making

unfounded accusations against a judge, acting

belligerently toward a judge and court staff, and

charging a nonrefundable flat fee. Torgerson, 870

N.W.2d at 605. Although the referee recommended a

public reprimand, we imposed a 60-day suspension. Id.

at 606. Unlike MacDonald, Torgerson did not have a

prior disciplinary history and had at least one

mitigating factor in her favor. Id. at 614. But

Torgerson's misconduct was of a broader range than

MacDonald's misconduct and took place on multiple

occasions.

The final decision cited by the Director is

Nathan. We disciplined Nathan for engaging in "a

pattern of harassing and frivolous conduct," "violating,

threatening to violate and assisting others in violating

court orders and confidentiality statutes," and

"making unfounded derogatory statements about

judges and false statements to others.". 671 N.W.2d at

580. We suspended Nathan for 6 months, relying

heavily on Nathan's pattern of harassing and frivolous

litigation and on his refusal to acknowledge that his

actions were wrong. Id. at 585–86. The Director

acknowledges that MacDonald's misconduct was less

severe than Nathan's misconduct, and we agree.

The referee's recommendation of 1 year of

probation is not well supported by these decisions,

each of which, except for Nathan, imposed a 60-day

suspension. In her disposition memorandum the

referee reasoned that the record and procedural

posture "militate[ ] against the severe sanction

recommended by" the Director because "no other

36a

claims" of a similar nature were made against

MacDonald since the WCCO interview in 2018 and

because MacDonald submitted to close supervision

during her probation. Although the referee is factually

correct, we disagree with her assessment of the

implications. MacDonald's avoidance of further

misconduct during the remainder of her probation is

not a mitigating consideration. See Albrecht, 779

N.W.2d at 538–39 ("We have repeatedly stated that

mere compliance with the rules of professional conduct

is not a mitigating factor in attorney discipline

cases."). Neither is the mere passage of time, which, as

the referee properly concluded, bars prosecution only

after a showing that it prejudiced the attorney. See

N.P., 361 N.W.2d at 392.

We ultimately bear the responsibility of

fashioning discipline that will "protect the public,"

"protect the judicial system," and "deter future

misconduct by the disciplined attorney as well as by

other attorneys." Albrecht, 779 N.W.2d at 540 (citation

omitted) (internal quotation marks omitted). 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. 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.

Accordingly, we order that:

1. Respondent Michelle Lowney MacDonald is

indefinitely suspended from the practice of law,

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effective 14 days from the date of this opinion, with no

right to petition for reinstatement for 4 months.

2. Respondent shall pay $900 in costs, pursuant to

Rule 24(a), RLPR, and shall comply with the

requirements of Rule 26, RLPR (requiring notice of

suspension to clients, opposing counsel, and

tribunals).

3. Respondent may petition for reinstatement

pursuant to Rule 18(a)–(d), RLPR. Reinstatement is

conditioned on successful completion of the written

examination required for admission to the practice of

law by the State Board of Law Examiners on the

subject of professional responsibility, see Rule 18(e)(2),

RLPR; Rule 4.A.(5), Rules for Admission to the Bar

(requiring evidence that an applicant has successfully

completed the Multistate Professional Responsibility

Examination), and satisfaction of continuing legal

education requirements, see Rule 18(e)(4), RLPR.

Suspended.

CHUTICH, J., took no part in the consideration or

decision of this case.

THISSEN, J., took no part in the consideration or

decision of this case.

-------Notes:

1 "A division of a fee between lawyers who are not in

the same firm may be made only if ... the client agrees

to the arrangement, including the share each lawyer

will receive, and the agreement is confirmed in writing

...." Minn. R. Prof. Conduct 1.5(e)(2).

2 "A lawyer shall not make a statement that the

lawyer knows to be false or with reckless disregard as

to its truth or falsity concerning the qualifications or

integrity of a judge, adjudicatory officer, or public legal

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officer, or of a candidate for election or appointment to

judicial or legal office." Minn. R. Prof. Conduct. 8.2(a).

3 "It is professional misconduct for a lawyer to[ ] ...

engage in conduct that is prejudicial to the

administration of justice." Minn. R. Prof. Conduct.

8.4(d).

4 The referee also found that MacDonald's

misconduct violated the terms of her disciplinary

probation and the fact that she was on probation when

she committed the misconduct was an aggravating

factor. In a case that was decided after the referee

made her findings and conclusions, we held that it is

improper double counting "to rel[y] on the fact that [an

attorney's] misconduct occurred during his probation

as both a violation of the Minnesota Rules of

Professional Conduct and as an aggravating factor to

increase [the attorney's] recommended discipline." In

re McCloud, 955 N.W.2d 270, 277–78 (Minn. 2021).

Just as we did in McCloud, we will consider the fact

that MacDonald was on probation when she

committed the misconduct as an aggravating factor

but not as a separate violation of the rules of

professional conduct. See id. at 278.

In addition, the referee found that the Director

had failed to meet her burden to prove other rule

violations alleged in the petition. Because the Director

did not challenge the referee's findings on those

alleged violations, we do not consider them here.

Two additional issues are presented by this

discipline proceeding. First, the referee found that

MacDonald's statements denigrating the judicial

system as a whole violated the rules of professional

conduct and are subject to discipline. Whether

MacDonald's general assertions of failure in the

Minnesota system of justice are subject to discipline,

39a

when they are not linked to specific facts and

circumstances, presents a close question. See Diesen,

455 N.W.2d at 451 (stating that we consider a

statement's specificity and verifiability when

determining whether it is protected as a statement of

opinion).

Second, we are concerned about possible due

process issues presented by this disciplinary

proceeding. In a disciplinary context, due process

requires the charges against an attorney to be

"sufficiently clear and specific" and for the attorney to

be "afforded an opportunity to anticipate, prepare and

present a defense." In re Gherity, 673 N.W.2d 474, 478

(Minn. 2004). Because the Director's petition did not

allege that MacDonald's criticism of the judicial

system violated the rules, there was no occasion for

MacDonald to produce evidence or testimony at her

disciplinary hearing to explain the basis of those

statements. Consequently, whether MacDonald's

general criticisms concerning the administration of

justice, unrelated to the S.G. matter, were properly

before the referee is unclear.

Because we do not rely on MacDonald's general

statements denigrating the judicial system in

imposing discipline, we need not decide either of these

issues. See In re Anderson, 759 N.W.2d 892, 896 (Minn.

2009) (declining to reach factual and due process

issues when other findings were "sufficient to support

the sanction we believe to be appropriate").

6 The referee found that MacDonald's statement was

"demonstrably false" because it was "found to have

been made with reckless disregard for the truth in the

2018 disciplinary proceedings." The referee implicitly

refers to her finding that we disciplined MacDonald in

2018 because MacDonald falsely claimed in a federal

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lawsuit that the judge's order was issued ex parte.

MacDonald challenges this finding.

Our 2018 decision suspending MacDonald does

not expressly say that we were disciplining

MacDonald for falsely claiming that the order was

issued ex parte. Neither does it catalogue every false

statement that formed that basis of our decision to

discipline MacDonald. But it does carefully explain the

circumstances surrounding the September 7, 2012

order, see MacDonald, 906 N.W.2d at 239–40, and it

clearly identifies that MacDonald's discipline was

based in part on her reckless, false statements about

the integrity of the judge in the S.G. case, see id. at

246–47. Therefore, the referee was correct that, based

on our 2018 decision, MacDonald's statements during

the WCCO interview were "demonstrably false."

7 MacDonald's other attempts to bolster her position

are not persuasive. She cites to the American Bar

Association's version of Rule 8.2, which we have

observed is consistent with the subjective standard

articulated in Sullivan. See Graham, 453 N.W.2d at

321. But because in Graham we expressly declined to

follow the Sullivan standard, her argument fails. Id.

MacDonald also relies on several cases whose

authority we distinguished when we disciplined her in

2018. See MacDonald, 906 N.W.2d at 246 n.11

(distinguishing Gentile v. State Bar of Nevada, 501

U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), and

Snyder v. Phelps, 562 U.S. 443, 131 S.Ct. 1207, 179

L.Ed.2d 172 (2011), and explaining that In re Yagman,

55 F.3d 1430, 1437–38 (9th Cir. 1995), applies an

objective standard like Graham). And although

MacDonald relies on In re Green, 11 P.3d 1078, 1085

(Colo. 2000), which applies a subjective standard, that

decision is not binding on us.

41a

8 MacDonald also claims, in passing, that the

referee's conclusions about her interview statements

were made "with no analysis," "based on [the referee's]

beliefs," and "without applying a legal standard." To

the contrary, the referee's conclusion that

MacDonald's statements violated the rules of

professional conduct is well supported by the referee's

findings and the evidence in the record. And the

referee's conclusion that MacDonald's statements

harmed the public and legal profession are consistent

with our precedent. For example, in MacDonald's 2018

disciplinary proceedings, we stated that "baselessly

attacking the integrity of a judge" in itself harms the

legal profession. MacDonald, 906 N.W.2d at 248. We

have observed elsewhere that an attorney's

"unprofessional actions and demeanor ‘reflect

adversely on the bar, and are destructive of public

confidence in the legal profession.’ " In re Torgerson,

870 N.W.2d 602, 616 (Minn. 2015) (quoting In re

Shaughnessy, 467 N.W.2d 620, 621 (Minn. 1991)).

Therefore, the referee did not clearly err by concluding

that MacDonald's statements violated the rules of

professional conduct and harmed the public and the

legal profession.

42a

WCCO Interview~MN Supreme Court

Candidate Michelle MacDonald

Unofficial transcript

Michelle MacDonald, interviewed by Blois Olson,

WCCO Radio Midday,

October 3, 2018

BLOIS OLSON:

Welcome back WCCO nine to

noon, Mid-day. Blois Olson I'm in today. I'll be in

tomorrow. Joining me now is Michelle MacDonald,

who is running for Supreme Court. And as I was

thinking about it, Brett Kavanaugh's hearings are

one way to select Supreme Court justices and in

Minnesota we actually have elections. And there's a

competitive election this year, and I thought I'd bring

on Michelle MacDonald who's running and who's run

before for the Supreme Court. Michelle, thank you for

joining us.

MICHELLE MacDONALD: Well, thank you for

having me. I'm a first time caller, long time listener.

BLOIS OLSON:

Well, great.

MICHELLE MacDONALD: Hello to all of your

listeners and the good people of Minnesota.

BLOIS OLSON:

Well, thank you. You know you've

been fairly visible. You've run before. You've been

endorsed by the republican party in previous

campaigns. Um, is it your sense that, you know,

either activism or partisanship is part of a good thing

running for Supreme Court?

MICHELLE MacDONALD: Well, let's see, that's one

of those loaded questions. Um, I'm speaking out

because courts need reform, I've been an attorney in

the system for 30 years and I don't think that the

current judges want to talk about that because they

think business as usual is okay. But their court

43a

orders are damaging people and families. Um, there's

a severe failure to follow the rule of law, to follow our

constitution and uphold it and, quite frankly, our civil

rights are being violated by courts all over the state.

BLOIS OLSON:

One of the cases you've been

involved in was with Sandra Grazzini-Rucki. Is that

one of the cases that you are referring to of civil

rights being violated?

MICHELLE MacDONALD: Yes, that's one of the

cases. That was just kind - - one of those cases that

went viral um because what happened in that case is

that I handled the trial while under arrest, with no

mother, no pen, no paper, no materials.

BLOIS OLSON:

Okay.

MICHELLE MacDONALD: Um, and the children

had run away. So, that, that was a civil rights

violation even before that happened. I have, on behalf

of Sandra, sued the presiding judge. His name was

David Knutson. I sued him in federal court. That suit

was pending, um, when she was having her custody

trial, that event occurred.

BLOIS OLSON:

Ultimately, though, it was proven

that Sandra Grazzini-Rucki was found guilty of

denying the father's rights, so -- is that -- were his

rights violated by her, or were her rights violated by

the court?

MICHELLE MacDONALD: Both of their rights were

violated the court. What the public needs to be aware

of is that the reason I got involved -and I did the case

pro bono-is that Sandra came to me and both she and

her, um -the father, not her husband at the time -had

no contact with their children whatsoever. Um, the

judge did that in September of 2012 without any

hearing, without any process, and in two hours

ordered her, she was already divorced, to leave her

home, leave her children there, whom she had

44a

custody of, five of them, and ordered her to not return

or else she would be arrested. And she couldn't go to

their churches. She couldn't have any contact with

them. That was in 2012. And that was the father as

well. The order applied to both Sandra and the

father.

BLOIS OLSON:

Okay. But once the, the court

decided, when, when did you find -when the kids-you

said the children ran away.

MICHELLE MacDONALD: Right.

BLOIS OLSON:

But ultimately it was found that

Sandra Grazzini-Rucki knew where the children

were. When did you know where the children were?

MICHELLE MacDONALD: Well, this was years

later and I didn't know until, um, it was reported on

the news.

BLOIS OLSON:

Okay. So, when you -MICHELLE MacDONALD: So I had, I had no idea

um, huh, what the public doesn't know that all five of

them ran away from their own home that they had

lived in for 14 years in September of 2012. They went

to the police station. They ended up living with uh

another aunt. And that was the status of the case.

The two girls were being moved back into their home

to not have custody of their dad. Their dad didn't

have custody of but were being moved into their home

that they had been away from for months. Um, they

hadn't had any contact with either parent -BLOIS OLSON:

Yep.

MICHELLE MacDONALD: For months and that was

the day they ran away.

BLOIS OLSON:

Okay. Um, and you didn't know

where they were?

MICHELLE MacDONALD: I didn't know where they

were, um, I knew they had run - disappeared - ran

away. I had no idea of, of her involvement and, um,

45a

ultimately, she was convicted. That was months,

months down the road.

BLOIS OLSON:

Right. But it was, it was the idea

that she had. So one of the things we always talk

about, and we're talking about it in the Kavanaugh

situation, is temperament. Um, there's a voicemail

about you talking about uh, David Rucki's attorney

that I wanna play, and I want to get your reaction.

As a candidate for Supreme Court, is this, is this the

kind of temperament that Minnesota -Minnesotans

can expect from you if you're elected?

VOICEMAIL OF MICHELLE MacDONALD: Hey,

Sandra, I go to a, an event downtown, a lawyer

event, and who's there. It's one we, we are very

familiar with, that cooperative private divorce, that

group I've been in since the beginning talking

about the statute. Who's there? Oh God. Lisa

Elliot. I'm like, oh my God. So she's uh there. And

it's just like okay, I just, seeing her in a different

setting, and she's such, you just wanna. You know

if I had a gun, I might shoot her, just because she's

so -- I just hate her.

BLOIS OLSON:

Uh, my guest is Michelle

MacDonald, candidate for the Minnesota Supreme

Court. Michelle, that's a voicemail that you left for

Sandra Grazzini-Rucki. Is that the kind of

temperament that somebody running for Supreme

Court should have?

MICHELLE MacDONALD: Well, of course not, and

that's a private voicemail and I'm sure judges all

across the state have private conversations like that.

Urn, so obviously, no, that is not my temperament

and it hasn't been my temperament at all. I've been,

ah --

46a

BLOIS OLSON:

But why would you say something

like that –

MICHELLE MacDONALD: Everything through the

court system -BLOIS OLSON:

Why would you say something

like that? That you wanted to shoot another lawyer.

MICHELLE MacDONALD: It's just an expression.

BLOIS OLSON:

Okay. Uh, I'm sure you've said it

uh –

BLOIS OLSON:

No, actually I haven't –

MICHELLE MacDONALD: Before, so -BLOIS OLSON:

No, actually I've never said that I

wanted to shoot somebody -MICHELLE MacDONALD: Yeah, I know. That, and

that was something I regret. But again, it was a

private conversation um, because uh, the, the

situation has been out of hand and it's still out of

hand.

BLOIS OLSON:

Okay. One of the things that

people expect from judges, I think, is that they're

honest. There's been other reporting that you did

know where the girls were, in fact that you had

actually said to Sandra Grazzini-Rucki I don't want

the story to be about a mom hiding her girls. Is there

anything you wanna come clean with today about

when you knew the girls were missing and what

Sandra told you?

MICHELLE MacDONALD: Well, I know I've, I've

said a lot of things and I know many, many things

were taken out of context. That was taken out of

context as well. Um, but I heard that it was the same,

same day everybody heard. Um, I had no idea. Um,

she didn't tell me.

BLOIS OLSON:

Okay.

MICHELLE MacDONALD: Um, and even if she had,

and this is one of the things that really is bothersome

47a

and your listeners and, and judges and lawyers

should be bothered by this. I'm her attorney. Things

are private.

BLOIS OLSON:

Yep.

MICHELLE MacDONALD: Obviously, I've had

many conversations with her as her family court

attorney. This was one that I did not have, uh, so I

did, I'm just telling you -BLOIS OLSON: Yeah -MICHELLE MacDONALD: I didn't know, and even

ifl did, um, that, it's attorney-client privilege. She

could have confessed to crimes, um, I never, never

thought that what she, she did was a crime. Uh, the

crime was with the court when Judge Knutson did an

order that neither parent could contact their kids.

That's when the deprivation happened.

BLOIS OLSON:

Okay -MICHELLE MacDONALD: At that moment. And

that was back in September of 2012.

BLOIS OLSON:

So, even though you've been, ah,

sanctioned, um, and that even though the, the court

ultimately found her guilty and named you as a, law

enforcement named you as a person of interest, um,

you think that that all should fall under attorneyclient privilege, even if somebody's hiding their

children?

MICHELLE MacDONALD: Um, anytime you go to an

attorney and tell them something, it's privileged.

BLOIS OLSON:

Yep. Okay.

MICHELLE MacDONALD: So, it is, if, that's just the

way I was and if that is going to be disruptive and not

honored, then it's a sad sorry state of affairs. If people

can't go to attorneys and tell them certain events.

BLOIS OLSON:

Got it. Um, as your -uh, as we

wrap up the interview, is there anything that um,

48a

you want voters to know in advance of the November

election?

MICHELLE MacDONALD: Well, basically, for the

last 30 years I've stood up to judges on behalf of

individuals and families so that people could learn

the basic recognition of their civil and constitutional

rights in our society. Rights once recognized as

sacrosanct to everybody and I'm running for

Minnesota Supreme Court because time and time

again as one attorney representing thousands of

people across the state I've witnessed an

unprecedented display of courts abusing their

discretion and authority, damaging people and

families.

BLOIS OLSON:

Got it.

MICHELLE MacDONALD: Sandra Grazzini-Rucki

is a, a example of that.

BLOIS OLSON:

Okay. Michelle MacDonald.

Candidate for Supreme Court. Thanks for joining us

today.

MICHELLE MacDONALD: Thank you so much.

BLOIS OLSON:

Alright.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.